Education Law Digest – autumn term: In the Tribunal / Courts

Bola v The Kemnal Academies Trust

Reasonable adjustments and the risk of an inaccurate comment.

This case is worth reading for any school or trust managing a long-term sickness absence involving a neurodivergent member of staff, because it shows how a largely careful, well-documented process can still generate liability from a small number of specific failures.

The claimant was a long-serving and previously successful mathematics teacher who progressed to Director of Mathematics. He was absent from work with depression from September 2020 and was later diagnosed with ADHD in January 2021. The trust subsequently became aware of the diagnosis and implemented a phased return to work, supported by occupational health advice and numerous workplace adjustments.

Over the following months, relationships became strained, concerns arose about his ongoing ability to fulfil the role, and discussions took place regarding adjustments, communication methods, management training and his future employment. He was ultimately dismissed on grounds of incapability due to ill health in January 2022 following a lengthy absence management process and issued a claim for unfair dismissal and disability discrimination. His unfair dismissal claim failed but some of his disability discrimination claims succeeded.

Key Findings for Schools

Schools are not expected to be perfect

The Tribunal was critical of certain isolated management mistakes but distinguished those errors from the overall approach taken by the trust. The Tribunal found the school:

• obtained multiple occupational health reports
• implemented extensive adjustments
• repeatedly consulted with the employee
• modified its procedures to support participation
• explored alternative working arrangements
• genuinely attempted to retain the employee

The Tribunal emphasised a few discriminatory acts and did not undermine the fairness of the overall dismissal process. Tribunals will assess the overall reasonableness of an employer’s actions. Occasional errors do not automatically make a dismissal unfair if a school has otherwise acted reasonably and supportively.

Knowledge of disability matters

A significant issue was when the trust became aware of the claimant’s disability. The Tribunal held:

• discussions in 2019 that the employee “might have ADHD” were insufficient to give the employer knowledge of disability;
• the employer obtained actual knowledge when the employee informed it in January 2021 that he had received a formal ADHD diagnosis.

Practically, Schools should distinguish between: (1) a possible condition; (2) a diagnosis; and (3) information demonstrating that a condition meets the statutory definition of disability. Once an employer has sufficient information, the duty to consider reasonable adjustments is engaged.

Reasonable adjustments require active engagement

The trust implemented many adjustments, including:

• reduced teaching load
• extended phased return
• flexibility on attendance
• reduced meetings
• administrative support
• additional supervision meetings
• removal of some duties
• appointment of a different line manager

The Tribunal repeatedly recognised the trust’s willingness to adapt arrangements. However, several failures amounted to breaches of the duty to make reasonable adjustments.

Successful adjustment claim 1

The claimant requested advance notice of timetable and class changes because unexpected changes created anxiety and dysregulation. The Tribunal found the trust failed to notify him about changes to one class before he was due to teach it. That communication failure could have been avoided and was a breach of the duty to make reasonable adjustments.

Successful adjustment claim 2

The Executive Head suggested a meeting between the claimant, the manager with whom he was experiencing difficulties, and that manager’s husband. The Tribunal found this was inconsistent with previously agreed support arrangements and constituted a failure to make reasonable adjustments.

Successful adjustment claim 3

An agreed single point of contact arrangement was breached when an important capability hearing communication was sent from a generic HR email account instead. The Tribunal held that this amounted to unlawful disability discrimination.

Once adjustments have been agreed, schools should ensure they are consistently implemented. Seemingly minor administrative errors can create liability.

Inaccurate criticism can amount to harassment

At a key absence management meeting, the Executive Head incorrectly stated that the claimant was not completing marking. The Tribunal found:

• the criticism was factually inaccurate;
• it amounted to unfavourable treatment arising from disability; and
• it constituted disability-related harassment because it reasonably upset the claimant and occurred in an important formal meeting.

Before raising concerns regarding performance, schools should ensure factual accuracy, particularly where capability and disability issues are intertwined.

Not every requested adjustment is reasonable

The claimant sought a wide range of measures including:

• highly specific technology requests
• extensive management training
• direct access to the CEO and trustees
• communication only through particular individuals
• continuation of full salary with reduced duties
• a request for appeal hearings to take place at a social club rather than trust premises

The Tribunal rejected most of these complaints and held the school was entitled to refuse adjustments that were impractical, disproportionate or unnecessary. The duty is to make reasonable adjustments, not every adjustment requested by an employee.

Long-term absence dismissals can still be fair

The Tribunal dismissed the unfair dismissal claim. Key factors included:

• lengthy periods of absence
• repeated occupational health involvement
• extensive consultation
• substantial workplace adjustments
• consideration of alternative roles
• repeated efforts to facilitate return to work
• no realistic prospect of a return within a reasonable timescale

The Tribunal concluded the trust could not reasonably be expected to wait longer and its decision fell comfortably within the range of reasonable responses. Schools can fairly dismiss a disabled employee on capability grounds where:

• medical evidence has been properly considered
• adjustments have genuinely been explored
• consultation has taken place
• there is no realistic prospect of return in a reasonable timeframe

Lessons for School Leaders

• Obtain occupational health advice early and regularly
• Keep agreed adjustments under review
• Record all support measures and rationale
• Check that agreed adjustments are implemented
• Consider alternative duties or redeployment where appropriate
• Tailor standard letters to the individual’s circumstances
• Maintain detailed records of consultation meetings

This decision is a reminder that Employment Tribunals look at the entirety of a school’s response to disability and long-term sickness. While the trust was found liable for several discrete acts of disability discrimination, the Tribunal considered those failings limited when viewed against the substantial support, adjustments and consultation undertaken over an extended period. As a result, the discrimination claims succeeded in part, but the dismissal remained fair.

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Take Me There

XX v YY [2026] EAT 89

Background:

The Claimant was an assistant head teacher who was in a coercive and controlling relationship from mid-2015 to August 2018. During that time, her partner placed her under “extreme pressure” to send a message of a sexual nature to a boy she understood to be under the age of 18. She did so, fearing that if she did not her and her children would be at risk of serious harm. She then failed to report this message for 18 months and the matter only came to light when it was exposed by the Claimant’s former partner in August 2018.

After a full investigation, a three day disciplinary hearing took place. The Respondent accepted that the Claimant’s mental health had been compromised because of her relationship but decided that, as an educational professional with over 20 years’ experience, she was fully aware of her safe-guarding role and gave the panel no assurance that it would not happen again. The Claimant was dismissed without notice on 9 June 2020.

Tribunal claim

Following this, she brought claims for discrimination because of something arising in consequence of disability (a depressive disorder which placed her at greater risk of being vulnerable to coercive control), unfair dismissal and wrongful dismissal. In a wrongful dismissal claim, the employee seeks damages for the breach of the contractual right to notice. Such a claim can be defeated if the employer can show that the employee’s conduct means that they were not entitled to notice i.e., there was a repudiatory (fundamental) breach of contract which allows the employer to dismiss without notice. The Claimant argued that, as she had not intended to breach her contract by sending the message and failing to report it, and had only done under duress, her conduct was not gross misconduct. The Tribunal held that her intention was not relevant as the key question was whether her conduct, when assessed objectively, was repudiatory. All complaints failed in the Employment Tribunal (“Tribunal”).

The Claimant was given permission to appeal to the Employment Appeal Tribunal (“EAT”) in relation to the wrongful dismissal claim only.

EAT Findings

The Claimant appealed on the basis that the motive or intent behind an alleged breach is relevant to whether there is a repudiatory breach and therefore this should form part of the objective assessment of the conduct.

The EAT decided that the Tribunal was required to consider, in determining whether the Claimant was guilty of gross misconduct, the circumstances of the breach so far as they would affect an objective assessment of whether the conduct should be treated as a repudiatory breach of contract (in this case breaching the implied term of trust and confidence). The EAT noted that very little time had been spent considering the wrongful dismissal claim. Therefore, in conducting this assessment, the Tribunal should have considered the duress asserted by the Claimant.

This case was consequently referred back to the same tribunal for reconsideration on this point. However, it was highlighted in the EAT’s judgment that duress was one element of the assessment and the tribunal was entitled to have regard to other circumstances of the matter such as the Claimant’s seniority and failure to report the incident for 18 months.