Asthmatic teacher unfairly dismissed after school environment worsened condition

Judge ruled that the decision was “inherently unfair” as her asthma-related absences were no longer an issue.

An asthmatic teacher whose condition was exacerbated by disrepair in her classroom and the pupil’s use of aerosols was unfairly dismissed, a tribunal has ruled.

The remote tribunal ruled that the decision by the Maelor School to dismiss Mrs Grant-Ryder for a spate of short-term asthma-related absences, brought on by mould, damp and aerosol use, was “inherently unfair”.

It said the school’s lack of action against aerosol use contravened the Equality Act as it failed to comply with its duty to “take reasonable steps to avoid the disadvantage to the claimant arising from a physical feature.

The unfairness of the dismissal was also “compounded” by the fact that the decision was taken when Grant-Ryder’s asthma-related absences were “seemingly no longer an issue”, as she had not had any sick leave for similar reasons in the school year that she was dismissed.

Because of this, the tribunal said the decision to dismiss her was based on “an inadequate consideration of her prognosis”.

A further related claim against Wrexham County Borough Council was not upheld.

Grant-Ryder had been employed as a drama teacher at Maelor for 28 years before her dismissal. The tribunal heard that at the start of the school year 2013/14 she developed symptoms “indicative of asthma” while working in the classroom C10.

In May 2014 Grant-Ryder had her first asthma attack on school grounds and an ambulance was called. She was treated at the local hospital and had a short period of absence.

Following a hospital consultant’s advice, Grant-Ryder met with head teacher Mr Ellis to discuss her health issue and her belief that the attack was triggered by flooring problems in C10.

Grant-Ryder was temporarily moved to a different classroom, but suffered another asthma attack at work on 14 May 2014 after she received a number of folders from C10.

A health and safety inspection by Wrexham Council on 22 May found “no evidence of dust or contaminates” in the classroom, and Grant-Ryder returned to C10 on 2 June. But, she suffered another attack two days later.

Grant-Ryder was deemed unfit to work by her GP until 23 June and was later referred to Occupational Health (OH).

The tribunal heard that Grant-Ryder began the next academic year (2014/15) in a different classroom, TC5, but that this was also “far from ideal” as it suffered from damp and water ingress. OH wrote to Ellis to say that Grant-Ryder’s symptoms were continuing. 

Around this time, on 21 October, Ryter attended a stage one informal review meeting about her absence record, which concluded that if her attendance “didn’t improve” then she would progress to stage two.

In December, Grant-Ryder’s head of department complained about the conditions in TC5 and repair work was carried out. Grant-Ryder returned to TC5 in April, but by November she started suffering from attacks again as the condition of the classroom began to deteriorate.

In March 2016, Grant-Ryder was moved to classroom C12. By this time, the school had prohibited the use of aerosols, however on 17 March, Grant-Ryder had her first asthma attack triggered by aerosols. She suffered further attacks leading to a number of absences from work during the 2016/17 and 2017/18 academic years.

The school’s business manager conducted a risk assessment in September for Grant-Ryder’s exposure to aerosols and provided her with a toilet that displayed “no aerosol” signage. 

On 6 November 2017, Grant-Ryder met with Ellis for another stage one informal meeting. Ellis asked if he could set a target of two days absence for that term, agreeing to exclude any absences brought on by aerosol-related attacks and acknowledging that “on occasion” attacks had been brought on by deliberate sprays aimed at Grant-Ryder.

After a meeting on 5 December, OH concluded Grant-Ryder had a “diagnosis of late onset asthma which is exacerbated by workplace triggers” that “predominantly relate to flooring, mould and aerosols”. The report suggested the school make efforts to minimise aerosol use and risk-assess possible mould environments.

On 21 December 2017, Grant-Ryder made a request that her classroom be locked during breaks and lunch time following a “spate of aerosol sprays” by students, but the tribunal accepted her claim that this was never actioned.

She was then absent for the first three weeks of term after the Christmas break, following which she was told she would progress to stage two as her absence had not improved. A stage two meeting on 14 March 2018 concluded with the aim of trying to “improve” Grant-Ryder’s attendance, but on 25 April she suffered another aerosol-related asthma attack.

A subsequent OH report in June suggested that it would be “reasonable” for the school to discount her sickness absence relating to asthma as a practical adjustment as it would be “more reasonable under the Equality Act”. However, the tribunal found that the school did not take “any material action” from OH’s suggestion.

From September 2018, Grant-Ryder had a series of unrelated absences as a result of a shoulder operation and a chair breaking underneath her, but had no asthma-related absences in 2018/19.

However, as she had been absent 76 days the previous year, a stage three hearing was held in June 2019 that resulted in the governors “unanimously” agreeing to dismiss based on her sickness record, and because they “could not see an improvement in attendance”.

It is the duty to make reasonable adjustments was a “massive factor” in this case.  The purpose of the duty is to put in place adjustments that are reasonable to the organisation to introduce and have the effect of addressing the substantial disadvantage faced by the disabled employee.  If employers can show that they have done this, they can “avoid costly tribunal claims” such as the one seen here.