EAT Disability Discrimination – Section 15
HARRASSMENT
UNFAIR DISMISSAL – Constructive dismissal
Equality Act 2010 (‘EqA’) sections 15 (unfavourable treatment because of something arising in consequence of disability) and 26 (harassment)
Employment Rights Act 1996 sections 95(1)(c) (constructive dismissal) and 98 (unfair dismissal)
On the Claimant’s claims of discrimination under sections 15 and 26 EqA and of constructive unfair dismissal, the ET had found:
(1) That the First Respondent’s failing to better inform itself and/or to formally review the Claimant’s position during her period of rehabilitation into work amounted to discrimination for section 15 EqA purposes.
(2) Separately, that the First Respondent’s letter to the Claimant of 8 November 2013 amounted to an act of harassment.
(3) And further, that the letter of 8 November 2013 amounted to conduct in breach of the implied obligation to maintain trust and confidence and the Claimant had thereby been constructively unfairly dismissed.
Upon the First Respondent’s appeal, allowing the appeal in respect of the discrimination findings but rejecting the appeal against the finding of constructive unfair dismissal:
(1) Given that the ET had rejected the Claimant’s claim that the First Respondent had acted in breach of any obligation to make reasonable adjustments (sections 20 and 21 EqA), the basis of the conclusion that the Claimant had suffered unfavourable treatment for the purposes of section 15 (i.e. posing some form of disadvantage, applying Trustees of Swansea University Pension Scheme and Anor v Williams [2015] ICR 1197) was unclear. Further, the ET’s conclusion that the treatment had been because of something arising in consequence of the Claimant’s disability was inconsistent with its finding (again on the reasonable adjustments claim) that the First Respondent’s reason was because it believed that an informal process was sufficient. The ET’s conclusion on the section 15 claim could not stand and would be substituted by a finding that this claim was dismissed.
(2) On the harassment claim, the ET had found that the letter of 8 November 2013 ‘related to’ the Claimant’s debilitating illness, which it referred to as the relevant protected characteristic but had made no finding that her illness at that time was related to her disability (thyroid dysfunction and cardiac arrhythmia); rather it had found that her illness in November 2013 was due to her own misperception of issues properly raised with her. The conclusion could not stand and would, given the ET’s findings, be substituted by a ruling that the claim under section 26 EqA was dismissed.
(3) As for the finding on the constructive unfair dismissal claim, taken as a whole, it was apparent that the ET was influenced by its finding that the letter of 8 November 2013, written to an employee known to be very ill, raised a number of concerns that were not serious and did not need to be dealt with at that stage (some of which had been dealt with and were closed). The ET had not lost sight of its earlier finding as to the genuine nature of the First Respondent’s concerns or the right of management to raise those issues with the Claimant, nor did it fail to take account of its own findings as to the Claimant’s misperceptions of the situation. The ET was entitled to conclude that its findings in respect of the letter meant that any reasonable and proper cause on the part of the First Respondent had been undermined. Further, given the evidence before it, the ET was entitled to conclude that the letter of 8 November had been a causative factor in the Claimant’s resignation. The appeal against the finding on constructive unfair dismissal would be dismissed.
Eady QC HHJ
[2016] UKEAT 0134 – 15 – 1501
Bailii
England and Wales
Employment
Updated: 31 October 2021; Ref: scu.562526