EAT Unfair Dismissal: Constructive Dismissal – DISABILITY DISCRIMINATION – Reasonable adjustments
The Claimant (a high performing Analyst, who had worked long hours before suffering serious injuries in a cycling accident) made complaints of disability discrimination (failure to comply with a duty to make reasonable adjustments) and constructive unfair dismissal. The parties had made written submissions, following directions for consecutive exchange. The ET’s Reasons suggested, however, that it had not had regard to the final reply from the Claimant.
In respect of the reasonable adjustments claim, the Claimant had relied on a provision, criterion or practice (‘PCP’) of having been required to work late but the Respondent contended working late had been voluntary for the Claimant after his accident: he had only been requested – not required – to do so. The ET found the Respondent’s position had progressed from making ‘open requests’, to assuming the Claimant would work late on one or two evenings each week: it became an expectation he would do so. That said, the ET did not accept the Claimant had been ‘forced’ to work late, in the sense of being coerced to do so, although it recognised he would have considered there were commercial and political reasons why he should work late. Accepting that by working late evenings the Claimant had been placed at a disadvantage due to his disability (the continuing effects of his injuries sustained in the cycling accident), the ET nevertheless dismissed his disability discrimination claim because it found that an expectation or assumption that the Claimant should work late was not the PCP he had pleaded.
Turning to the complaint of constructive unfair dismissal, the Claimant appealed against the ET’s rejection of his disability discrimination complaint and on its finding as to his reason for resigning. The Respondent cross-appealed on the basis that the ET had failed to engage with the question of possible acquiescence.
Held: allowing the appeal and dismissing the cross-appeal.
The identification of the PCP was an important aspect of the ET’s task, the starting point to determining a reasonable adjustments claim (Environment Agency v Rowan [2008] IRLR 20 EAT). In approaching the statutory definition, the protective nature of the legislation meant a liberal, rather than an overly technical approach, should be adopted (Nottingham City Transport Ltd v Harvey UKEAT/0032/12/JOJ at paragraph 18; EHRC Code of Practice on Employment 2011 at paragraph 6.10). Adopting a real world approach, whilst ‘requirement’ might be taken to imply some element of compulsion, an expectation or assumption placed upon an employee – in the sense found by the ET – might well suffice. As the ET recognised by its reference to the ‘commercial or political’ factors (referable to the workplace rather than more generally), employees can feel obliged to work in a particular way even if disadvantageous to their health. Characterising the Respondent’s expectation as a ‘requirement’ in that context was an entirely straightforward construction of the Claimant’s case. Given the Claimant was relying on the ‘requirement’ as a form of ‘practice’ by the Respondent, the ET’s approach was overly technical and led it to treat the Claimant’s case as having been more narrowly put than it in fact was. That was a point the ET might have understood more clearly if it had the Claimant’s final submissions in reply.
Approaching the Claimant’s case on PCP in the correct way, on the ET’s findings it was apparent his case had been made out in that respect.
That, however, was not an end of the matter. Although the ET had found the Claimant suffered a disadvantage, as compared to a non-disabled comparator, as a result of the PCP of working later hours, its findings did not go so far as to determine the nature and extent of that disadvantage, and it did not go on to assess the steps that it might have been reasonable for the Respondent to take at the relevant time (the adjustments it might have been obliged to make). Those matters needed to be remitted and it was proportionate for this to be to the same ET.
On the constructive unfair dismissal case, the ET found the Respondent’s conduct – taken cumulatively – amounted to a fundamental breach of contract. It did not, however, consider that was the reason for the Claimant’s resignation and referred to various other matters, largely occurring thereafter. The correct approach was as laid down by Keene LJ in Nottinghamshire County Council v Meikle [2004] IRLR 703, which recognised that the question was not so much whether the breach of contact constituted the reason for the resignation as whether it was a reason for that resignation (see Lochuack v London Borough of Sutton UKEAT/ 0197/14/RN). On this question, the ET had been led into error by the description of the point in the list of issues, which seemed to require the breach of contract to be the only reason for the resignation; that alone rendered the decision unsafe. More generally, however, the ET erred in its approach. It being common ground that the Claimant’s resignation on 14 February had been effective to terminate his contract of employment, the ET needed to determine what had led him to resign at that stage. Whilst what he subsequently did might not be irrelevant, the evidence made it plain that something had occurred that morning which caused the Claimant to resign that day. The only permissible conclusion was that the Claimant had resigned – at least in part – in response to the Respondent’s repudiatory breach. That being so – and the Respondent having put no alternative case as to a potentially fair reason for any constructive dismissal – the ET’s decision in this respect would be set aside and substituted by a finding that the Claimant’s complaint of constructive unfair dismissal was made out.
As for the cross-appeal, given the ET’s finding as to the last relevant act being on 14 February itself, there could be no proper finding that the Claimant had waived the breach. The cross-appeal would be dismissed.
Eady QC HHJ
[2016] UKEAT 0266 – 15 – 0704
Bailii
England and Wales
Employment
Updated: 17 January 2022; Ref: scu.565118