Teacher at prep faculty efficiently sues for incapacity discrimination

A senior teacher at a private school attended by Princes William and Harry who was sacked after he ‘fell asleep in class’ has successfully sued for disability discrimination.

Wetherby Prep School for Boys’ Head of RE Jason Smith saw his 16-year-career at the school brought to an end after bosses said his absences and behaviour were having a ‘detrimental impact’ on the £27,000-a-year establishment.

His ‘unacceptable’ behaviour included ‘falling asleep in class’ – which an investigation report found he had done on four occasions in one academic year in front of boys and staff – including for approximately 10 minutes during a lesson in February 2022.

An employment tribunal was told that Mr Smith said these claims were not true and that he gave ‘various excuses’ as to why staff members had seen him with his eyes closed in lessons.

The teacher is now in line for compensation after successfully suing the prep school’s owners Alpha Plus for disability discrimination and unfair dismissal with an employment judge ruling he had been sacked ‘without being heard’.

The teacher told the tribunal that the school’s management made him feel like a ‘disease’ for missing work due to anxiety and depression.

The Notting Hill school – which describes itself as one of the most ‘sought-after prep schools’ in London – educated the Prince of Wales, Duke of Sussex as well as Romeo and Cruz Beckham.

The tribunal in central London heard Mr Smith began working at the school in September 2006 and initially had a ‘glowing record’ with students achieving ‘excellent’ results in his sets, the tribunal said.

He was described as being ‘passionate about the well-being of the boys’ and a classroom observation of his students said their ‘enthusiasm was infectious’ and the ‘learning atmosphere was excellent’.

In January 2020, the teacher suffered a ‘breakdown in his personal relationship’ and as a result of this, he was off sick intermittently for a total of 18 days in the first three months of the year.

He was referred to occupational health and the teacher was found to have an underlying condition of anxiety and depression – and suffered from poor sleep due to his mental health.

He was signed off work but returned to his job without notifying the school in September 2021.

The tribunal said: ‘As far as he was concerned, he had made it clear at the end of the summer term that he wanted to return.

‘His doctor had told him it was unnecessary to provide a note stating he was fit to return, because he had no longer been signed off as unfit for work..’

However, on Mr Smith’s return he was not initially provided with a timetable or desk and no return to work meeting was held, the tribunal heard.

Asked by a colleague if he was ok, he said ‘Yep, just slept badly and have no idea what I’m doing at the moment as regards to my job as I have no table, and feel like I have no purpose’.

Throughout that month, Mr Smith’s mood was ‘up and down’ and the tribunal heard he was ‘tearful at school and complaining about his treatment by management in the staffroom’.

The school said his mood was ‘volatile and emotional’ and parents had complained about his treatment of the students, the tribunal heard. They said on two occasions he was found ‘asleep at school’.

An occupational health report – carried out on September 23, 2021 – advised Mr Smith was ‘not fit for full hours or duties at present’ and a phased return to work was recommended. 

This led to Mr Smith leaving work again until his return in January 2022, but the following month it was reported by two members of staff that he had fallen asleep in class.  

When this was put to him, he said this was not true and he was ‘only resting his eyes’. 

In March 2022, the teacher was invited to an investigation meeting where he was told that ‘falling asleep in class was unacceptable and this was not the only occasion’.

The tribunal said Mr Smith gave ‘various excuses’.

‘He said he was a deep thinker and closed his eyes in order to think, and he was not leading the lesson. And he said he had a big lunch,’ the tribunal said.

In the following few days, staff members reported ‘concerns’ over Mr Smith and said he was ‘being too harsh on the boys’.

Because of these ‘concerns’, an investigation report found Mr Smith had been asleep for approximately 10 minutes during a lesson in February 2022 and he had previously fallen asleep on three occasions in that academic year in front of boys or staff.

It discussed his failure to follow absence protocol when he had failed to call in sick properly and said ‘parents pay high fees and expect proper teacher cover’.

In July 2022, Mr Smith was sacked on ‘grounds of ill-health’.

He was told that ‘despite the best efforts of all concerned, your continued absence is having a detrimental impact on the school and the children, and your behaviour when in school falls below the standard expect of an employee of Alpha Plus’.

But, Employment Judge Tamara Lewis said Mr Smith was ‘dismissed without being heard’.

She said: ‘He had had no opportunity to comment on the investigation report.

‘These matters arose in consequence of [Mr Smith’s] disability. His absence record was almost entirely due to his disability.

‘His failure to report absence in time or at all until chased up was due to his low mood and anxiety as well as the effects of his medication.

‘The unpredictable temperament was a reference to mood swings and tearfulness caused by [his] disability and anxiety about how he was being treated at work as a result.

‘Sleeping at work was also clearly due to the medication and sleep disruption caused by his anxiety.

‘We understand that [Mr Smith] had no self-awareness that he was sleeping at work.’

Mr Smith’s claims of unfair dismissal and disability discrimination were upheld. Other claims were dismissed.

A remedy hearing to decide his compensation will be held later this year.