DISABILITY DISCRIMINATION
The Tribunal erred in concluding that, because it had found that the conduct of the Respondent which tipped the Claimant into resigning could not contribute to a breach of the implied duty of trust and confidence, his claim that he was constructively dismissed must fail. That would be correct only had it, properly, found that (a) there was no prior conduct by the Respondent amounting to a fundamental breach; or (b) there was, but it was affirmed. But if, in such a case, there was prior conduct amounting to a breach which was not affirmed, and which also materially contributed to the decision to resign, the claim of constructive dismissal will succeed. London Borough of Waltham Forest v Omilaju [2005] ICR 481 and Kaur v Leeds Teaching Hospital NHS Trust [2019] ICR 1 considered.
On the facts found, had the Tribunal applied the law correctly, it would have found that there was a constructive dismissal. It had found that there was prior conduct which contributed to the decision to resign, and which amounted to a breach of the implied term. It could not have properly found that such conduct had been followed by affirmation. A finding of constructive dismissal was therefore substituted. The Tribunal could not properly have found such dismissal to be for a fair reason, as claimed, and a finding of unfair dismissal was also substituted.
While some claims of discrimination pre-resignation had also succeeded, the question of whether the constructive dismissal was discriminatory would be remitted for consideration by the Tribunal.
The Tribunal decided that the withholding of certain information from the claimant in connection with disciplinary charges could not amount to a ‘practice’ for the purposes of a complaint of failure to comply with the duty of reasonable adjustment, because it was not sure that the relevant individual would have so acted in all such cases. That was setting the bar too high. The Tribunal should have considered whether there was sufficient element of repetition or persistence in the Claimant’s own case, for a practice to be found. Nottingham City Transport v Harvey UKEAT/0032/12 considered. Lamb v The Business Academy Bexley UKEAT/0226/15 applied. The appeal against this decision was also upheld, and this complaint remitted to the Tribunal for further consideration.
Citations:
[2020] UKEAT 0108 – 19 – 2001
Links:
Jurisdiction:
England and Wales
Employment
Updated: 27 November 2022; Ref: scu.650915