A teacher with a terminal brain tumour has won a disability discrimination case after her boss launched a 'vindictive' campaign to get rid of her. Rachael Davies was tragically diagnosed with a malignant tumour at just 30 years-old which forced her to leave work for treatment, an employment tribunal heard.
Upon her return to Riverside Primary School, in Hereford, she experienced some difficulty in 'word finding' and began suffering minor 'memory loss'. Mrs Davies discussed the prospect of changing roles after a colleague retired but was rejected by head teacher Emma Shearer - who decided she was 'not up to the job'.
Mrs Shearer tried to force her into 'ill-health retirement', though an 'alone and ignored' Mrs Davies rejected this, arguing she was 'only 32 and love my job'. The tribunal also heard from another teacher who said colleagues told her 'the headteacher wanted [Mrs Davies] out."
Now, Mrs Davies is in line to receive compensation after an employment tribunal ruled she was treated less favourably due to her illness. Her claims of disability discrimination, victimisation and harassment all succeeded, along with other claims.
The Birmingham tribunal heard Mrs Davies had worked as a full-time reception and early years teacher from September 2011. After taking maternity leave in June 2016, she returned to work the following year on a reduced contract, working 37.5 hours per two-week period.
In December that year, the then 30-year-old was diagnosed with a grade three malignant tumour to the brain, which is incurable and results in a life expectancy of just eight years. She left work in January 2018 for surgery and chemotherapy.
In January 2019, a year after the start of her treatment, the tribunal heard Mrs Davies returned to work in a different role, giving 'underachieving' children extra tuition. By the end of the month, Mrs Davies moved back onto her regular hours and was covering classes for colleagues.
But in a meeting in April, Mrs Shearer told Mrs Davies she would be 'losing' her classroom in what felt like a 'personal' decision, leaving the teacher 'distressed'. The tribunal heard Mrs Davies emailed her boss to say she wanted to return to classroom teaching 'as soon as possible', but was shot down by the headteacher and felt 'ignored' and 'alone'.
In Easter of 2019 a part-time early years teacher called Liz Mason announced she would be retiring in the New Year, and recommended Mrs Davies to take over her role. But despite Ms Mason's endorsement, the tribunal heard Mrs Shearer neither offered Mrs Davies the job nor enquired if she would be interested with the job handed to another, less-experienced teacher at the school.
In September 2019 Mrs Davies was moved from nursery to Key Stage 1 and 2 teaching - with five to seven year old children - which she hadn't taught for nine years. The panel were told she struggled to remember the names of the 120 children and didn't receive an induction in her new role.
During a December meeting, Mrs Shearer suggested to Mrs Davies she could seek 'ill health retirement'. The tribunal heard Mrs Davies responded, 'I'm 32 and love my job' and insisted she was 'not interested' in retiring.
Ms Mason told the tribunal 'that she had been directly told by colleagues that the headteacher wanted [Mrs Davies] out'. Mrs Davies went on sick leave in January due to anxiety, and was signed off in early February for a further six weeks.
In an email exchange, Mrs Shearer said she was 'surprised' Mrs Davies had been signed off for two months, in what the tribunal ruled were 'unnecessary, vindictive and gratuitous' comments. The tribunal heard Mrs Davies was suffering from 'shock' and 'depression', and was said to have become 'terrified' of walking through the doors of the school.
In March she lodged a formal grievance, saying she was being 'pushed into early retirement' by Mrs Shearer, later resigning in June and stating the head's conduct had 'damaged my health and my career'. Employment Judge Rachel Wedderspoon ruled Mrs Davies had been discriminated against due to her cancer diagnosis and overlooked for the early years job for the same reason.
Judge Wedderspoon said: "[The school] treated Mrs Davies less favourably than they treat or would treat others." She was an obvious choice for this position; she was experienced and qualified; was recommended for the post [and] the headteacher knew she wanted the position."
"It was inexplicable that the experienced Mrs Davies was not asked [if she was interested in the role]. The Tribunal finds the headteacher did not offer this role to the claimant because she was disabled."
The judge added that Mrs Davies was "subject to a campaign to identify negative capability issues about her." She concluded: "Mrs Shearer considered Mrs Davies had shortcomings at work because of her ill health and appeared to write her off as having a future as a teaching professional in the school."
Claims of disability discrimination, failure to make adjustments, harassment related to disability, constructive unfair dismissal and victimisation all succeeded. A remedy hearing to decide upon compensation will be held in due course.
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