United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS JOANNA HEAL (of Counsel) Instructed by: Messrs Ashton Graham Solicitors Waterfront House Wherry Quay Ipswich IP4 1AS
For the Respondent	MR OLIVER HYAMS (of Counsel) Instructed by: Messrs Thompson Smith & Puxon Solicitor 39-41 Station Road Clacton-on-Sea Essex CO15 1RN


 


SUMMARY

PART TIME WORKERS

DISABILITY DISCRIMINATION: Reasonable adjustments

UNFAIR DISMISSAL: Constructive dismissal

The Employment Tribunal did not err when it held the Claimant was Head of Art and so appointment of another constituted constructive unfair dismissal, and since the employer required the new Head to be full-time and the Claimant was not, it discriminated against her as a part-time worker and failed to make reasonable adjustments for her need as a disabled person not to work full-time.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the constructive unfair dismissal of a disabled part-time teacher. It is the judgment of the Court to which all members appointed by statute for their diverse specialist experience have contributed. This will become particularly useful when we address the specific invocation by Counsel of the reality of employment relations. We will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against the judgment of an Employment Tribunal chaired by Employment Judge Cole, sitting over seven days at Bury St Edmunds, registered with reasons on 5 January 2009. The parties were represented respectively by Mr Oliver Hyams and Ms Joanna Heal and we join the Employment Tribunal in expressing our gratitude for their roles today.
3. The Claimant claimed unfair dismissal, disability discrimination and unfair discrimination against her as a part-time worker. The Respondent disputed dismissal, denied discrimination and, where appropriate, asserted justification.

The issues

4. We will set out the issues as we describe the legislation below. The Employment Tribunal decided against the Claimant on two aspects of her Disability Discrimination Act 1995 claim, but in her favour on unfair dismissal, part-time worker discrimination and reasonable adjustments under the DDA. The Respondent appeals. It does not contest the finding that, if there were a dismissal, it was unfair. Directions sending this appeal to a full hearing were given in Chambers by HHJ Richardson.

The legislation

5. The relevant provisions of the legislation are not in dispute and we will cite only those relevant to the issues now on appeal. There is no issue on the burden of proof which is on the Claimant, save for justification which is on the Respondent.

Unfair dismissal

6. This is provided for by Section 95(1)(c) of the Employment Rights Act 1996 and is as follows:

"(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."

7. The issue in relation to constructive dismissal was whether the Respondent had acted in a way which caused the Claimant to leave, as a result of its conduct which it had carried on without justification or cause. In simple terms, it was to take away her position, as she put it, as Head of Art at the school. The test is contractual for repudiation and the principal authority relied on by the Employment Tribunal, of course, was, Western Excavating (ECC) Limited v Sharpe [1978] ICR 221 CA per Lord Denning MR.

Disability discrimination

8. Although the Claimant raised claims of direct discrimination contrary to Section 3A(5) and discrimination contrary to Section 3A(1), the sole issue now relevant is a failure to carry out the duty to make reasonable adjustments. Section 3A(2) of the Act provides as follows:

"(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person."

9. The particular form of discrimination outlawed in this case is said to be Section 4(2)(d), that is dismissal or detriment.
10. By Section 4A a duty is imposed upon employers to make adjustments generally described as a duty to make reasonable adjustments in the following terms:

"4A(1) Where -

(a) a provision, criterion or practice supplied by or on behalf of an employer, or

(b) any physical feature of any premises occupied by the employer,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case for him, to have to take in order to prevent the provision, criterion or practice, or feature, having that effect."

We will refer to that as a PCP.

11. In respect of part-time worker discrimination, the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2002 provides the following protection:

"5(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker -

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2) The right conferred by paragraph (1) applies only if -

(a) the treatment is on the ground that the worker is a part-time worker, and

(b) the treatment is not justified on objective grounds.

(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate."

12. It follows from filleted extracts from the statutes above that some aspects of the treatment of a person who is disabled or part-time can be justified. For example, the Employment Tribunal, since it was dealing with a claim under 3A(1) of the DDA, was required to look into the Respondent's justification, as it was in respect of the claim of discrimination contrary to the Part-time Workers Regulations. Some of that material is to be factored into a discussion of the issues still live on appeal.
13. As a result of the complex nature of the claims presented to the Employment Tribunal, it is right to acknowledge, as the Tribunal did, that the issues are, to some extent, overlapping and entangled as both Counsel have accepted before us for their respective client's reasons.
14. The simple fact is that when a person presents two strands of the anti-discrimination code - here, disability and part-time working - and particularly where one of those claims under disability has three strands to it, a Tribunal doing justice to the claim has to examine a large number of issues and it is unrealistic for it to apply a clinical approach. Thus it is in this case that we find the Tribunal, having set out its findings of fact, set out its conclusions. We take these as general conclusions relevant to its thinking on all of the strands of the anti-discrimination code which it was examining.
15. The Tribunal then deals with the specific aspects now live on appeal; that is, a failure to make reasonable adjustments, discrimination contrary to the Part-time Workers Regulations and constructive dismissal. It returns to reasonable adjustment in another part of its judgment. Perhaps an edit to place the two sections of its judgment dealing with reasonable adjustments under that heading could have been done, but that is to demand perfection, something we do not do since we give a judgment such as this a generous construction.
16. In saying that we will deal first with an issue raised by Ms Heal, which is that her client simply does not know why it lost this case. An Employment Tribunal is required to give reasons which are clear and show just that (see Meek v The City of Birmingham District Council [1987] IRLR 250). On the other hand, the Tribunal is not required to set out every single finding of fact, only those issues which are necessary for the finding which it makes (see English v Emery Reimbold [2002] 1 WLR 2409 CA). From that it will be clear that the cottage industry, so graphically identified by Sedley LJ, is still alive and thriving on globalised proportions in our jurisdiction.
17. We say at the outset the criticism that this Tribunal does not tell the employer why it lost is wholly misconceived. This is a comprehensive judgment and whereas we are used to receiving complaints such as this on a regular basis, this is another one of those which has no substance. If the teachers and governors reading this judgment could not understand why they failed then that is not the fault of the Employment Tribunal. We reject that ground of appeal.

Facts

18. The Employment Tribunal introduced the parties in this way.

"4. The Claimant was employed by the Respondent to teach art from January 1996 until 15 March 2007. Her employment had become permanent from 1 September 1996 on a part-time basis. The case interestingly charts the tensions, both legal and human, between the Claimant's illnesses and the Respondent's desires, aspirations and commercial needs.

5. The Respondent is a well-known private school for children aged between 2 to 13 years of age. It is a fee-paying school and there are between 270-300 children of whom just over 100 are boarders. Like all private education, there are increasing financial pressures and increasing fee levels, coupled with tenacious parental explanation of pupils. Art, as a subject, has not, hitherto, been regarded as mainstream but there is an increasing availability of art scholarships, quite properly sought after by both pupils and their parents, where there is appropriate talent. In terms of the Respondent's commercial peers, the Respondent's view was that it had fared less well as this aspect of student education (Art) became more focused across the country."

19. It is accepted that the Claimant is disabled. It has been demonstrated that she has plainly met the terms of the Act and we will simply add also that "local" in Bury St Edmunds means Ipswich.
20. The Claimant began working for the Respondent pursuant to an offer made to her by Hugh Coke, then the Head Teacher, in November 1995 until the relationship ended by her resignation on 15 March 2007. Initially the offer was of a temporary part-time art teacher position, but she then applied for a permanent part-time position and that was offered to her, with effect from 1 September 1996. We have seen the exchange of correspondence relating to that and it is plain she was employed as a part-time art teacher. Over the course of the next few years the Claimant suffered a number of disorders which contributed to her disability and by 30 May 2006 the Claimant was seeking additional help.
21. Mr Ives, the Head Teacher employed after Mr Coke from 1997, was concerned about the cost of additional help, although there had been additional help provided for the Claimant in the form of another assistant teacher. Mr Ives raised the issue of someone working full-time. An important issue for the school was to achieve what is described conveniently as the "gold standard", which is to improve the art standards in the school and to encourage the grant of scholarships.
22. At a meeting on 30 May 2006, Mr Ives asked if the Claimant could guarantee that she would stay healthy. On 23 June 2006 there was a further discussion. Mr Ives made it clear that he needed more art lessons and the Claimant recognised that she was unable to do the 30 lessons which the school required. She contended she wished to stay as Head of the Department of Art teaching older students and that other additional duties caused stress and made her tired. It was agreed that there was a need to inspire top end students and it was plain Mr Ives considered that this could only be done by a full-time art appointment.
23. At this stage the Claimant asked about job sharing, but Mr Ives was convinced this would not solve the problem. She again asked for more help a week later and this was not accepted.
24. In the course of the next few months the school resolved to appoint a Head of Art on a full-time basis. The Claimant raised a grievance and had a meeting on 21 September 2006. It was shortly thereafter contended by the Respondent that the Claimant had never been Head of Art. This caused great surprise and distress to the Claimant and she did not agree to the proposals.
25. On 27 November 2006 she had another grievance meeting and the decision was sent to her on 7 December 2006 rejecting her grievance and recording that a Head of Art was to be appointed on a full-time basis. She said she would apply. She met the Head Teacher and did apply for that position on 1 February 2007. That was rejected on 3 March 2007 and on 15 March 2007, as we have said, she resigned.
26. The Employment Tribunal came to the following conclusions about the legal issues in the case. In its section on Discussion and Conclusions, the Tribunal resolved the first question as to whether she was the Head of Art. It said this:

"65. Was the Claimant Head of Art? Was that her contractual position? We have no doubt whatsoever it was. True to say she was not formally appointed to that position. True to say there was no written confirmation of change to Head of Art and true to say there is no clear evidence to lead us precisely to the date of any variation to her contract such that she became Head of Art. But we have no doubt that at all material times Ms Parker was the school Head of Art. It has not stretched us to come to that view. Even the badge depicting the Claimant as Head of Art for use during parent occasions might lead us, without more, to the conclusion we have reached. Nevertheless, there is other overwhelming evidence in support. Mr Ives failed to raise any objection to that description during copious correspondence exchanges, let alone by his letter of 14 July 2006 (see above) his express reference to Ms Parker as Head of Department, albeit he told us, by his evidence, he 'meant otherwise'. We agree with Mr Hyams that Mr Ives took the view that simply because the contractual documentation did not state the Claimant was Head of Art, led him to the view that '... the Claimant was something as other than Head of Art'. We see a useful comparison with Mr Collings as a Geography specialist, and Mr Lawson as Head of English. Albeit their contracts, it is said, were similarly silent, they each managed (as Head) a small Department (Geography or English as the case may be) supported from time to time by assistants. We are entirely persuaded by the evidence of Timothy and Marion Collings, Duncan Lawson and the Claimant's own evidence which sits comfortably in every way with her position and status at the school.

66. Whilst we accept the merits of Mr Ives desire to move the school forward in changing times and to cover the Art Department on a full time basis, we are persuaded, on the balance of probability, that the principal motive to advertise for a full time Head of Art related to the Claimant's illness (through her inability to work full time in the face of the Respondent's perception of its exclusive need for a full time Head of Art) and as put in the minuted meeting on 16 June 2006, as follows:

'Problems had arisen in the teaching of art due to staff illness. These were being addressed by the Headmaster'.

We bear in mind also, as Mr Hyams says we should, the Head Teacher's meeting with the Claimant on 30 May 2006 and his reference to the Claimant's blindness in one eye, the patience of colleagues and his request for a guarantee that she would stay healthy. Also we note Ms Parker told Mr Ives that if she has a kidney transplant she would be absent and, as he observed hopefully, thereafter, she would be more reliable."

That was necessary for it to determine the basis upon which it could conclude there was a constructive unfair dismissal.

27. As to the beginning of the Tribunal's consideration of discrimination, it came to this conclusion in respect of comparators:

"67. By his evidence Mr Nichols, as Chairman of the Governors, confirmed that had the Claimant not been ill 'the question of her being replaced as Head of Department would not have arisen'.

68. We note also that Mr Ives had never told the Claimant, nor had there been any other formal or informal direction given to her that her capability of Head of Art or indeed as in any other capacity as an Art Teacher, was in question. Nevertheless we do accept that, to a limited degree, albeit not a principal feature, there was genuine concern at the Claimant's lack of ability to inspire and to lead in an inspirational way. That said, we recognise as genuine the motive, perception and need on the part of Mr Ives to bring the Art Department forward more as a mainstream subject. Had Ms Parker not been disabled we have little doubt that her escalation from a part time to full time basis would have been invited and entertained, but we cannot lose sight of the fact that even on that basis she may not have succeeded in motivating the Art Department and leading it sufficiently or in line with the school's no doubt justified, commercial and educational perception of what was ultimately required of the Art Department. We can only speculate in the face of our own perception and on the evidence before us. Had Ms Parker not been disabled but only been able to work part time (for a reason unrelated to disability) we suspect, on balance she would still have been dismissed in the face of the Respondent's perceived need for a full time Head of Art. That is a view which derives from the evidence we heard as to the boarding school culture and the need for, particularly in the case of boarding pupils, a 'round the clock' presence for the majority of teachers."

28. In paragraph 69, which immediately follows that, there is obviously a reference to disability discrimination and it seems to us that paragraph 68 is a reference to disability discrimination findings. It must, of course, be borne in mind that during this passage the Tribunal had in mind the claims facing it: direct discrimination, disability-related discrimination and a failure to make reasonable adjustments, only the last of which was upheld. The Tribunal also said this about a comparator:

"71. In reaching that decision we are also mindful of the comparison brought to us of the allegedly underperforming Head of Design and Technology. We note that in his case a disciplinary or capability route was preferred (albeit never actioned) and that for technology it was never suggested or even considered that a new Head of Department should be put in post. As Mr Ives admitted he could not have imposed a new Head of Design and Technology '... unless I have followed a capability procedure'."

29. As to its first discussion of reasonable adjustments specifically, the Tribunal held this:

"72. … So far as the gold standard level of excellence was concerned we agree with Mr Hyams this aspiration both could and should have been adjusted, in the Claimant's case, to accommodate her disability (without dilution of the standard itself) in any one of a number of ways, none the least by the provision of additional teaching assistance as Ms Parker had herself requested."

30. It continued its analysis by looking at the Code of Practice on Employment and Occupation under the DDA in relation to reasonable adjustments and directed itself in terms no found to be exceptionable by Ms Heal. It said this:

"96. The Code of Practice on Employment and Occupation is of assistance. We are constrained to take that guidance into account and we do so. An employer must consider any reasonable adjustment which would resolve any difficulty suffered by the employee. There should be consultation with the disabled person and if necessary expert advice to enable the disabled employee to continue in his or her present job if at all possible. Only where no reasonable adjustments are practicable is it necessary for suitable alternative positions to be considered. It may be necessary to modify a job to accommodate an employee's changing needs and opportunity should he taken through Job Centre Plus to the access to work scheme which includes the provision of financial assistance towards additional employment costs, or indeed to decide what steps to take.

97. True to say the resignation letter did not particularise the reasonable adjustments required. Ms Heal says that, albeit silent within the resignation letter, the Claimant's request made on 30 May 2006 for more support was not referred to. She says also that the imposition of a requirement to deliver 30 lessons per week in September was not in the resignation letter, nor did Ms Parker put that as a reason for her resignation."

31. It resolved an issue in the Claimant's favour relating to the knowledge of the Respondent of her conditions and came to this conclusion:

"103. It seems to us that a cry of help was exactly that. Casual or more structured assistance would have its obvious benefits. A reduction in hours, or more flexible hours (albeit there had been some movement in this direction) would have been obvious and no doubt much more would have emerged had there been meaningful consultation with Ms Parker. Perhaps the provision of an assistant, full time or even otherwise, might have helped. It was, of course, envisaged by Mr Ives, in the longer term, in any event. Likewise we see no reason why the gold standard/scholarship requirement for the Art Department pupils (and which requirement of itself we do not criticise) could still not have been achievable in the Claimant's hands, as part time Head of Department, provided flexibility in approach and teaching assistance or support (as called for by the Claimant) was allowed. Sadly it was not."

The Respondent's case

32. On behalf of the Respondent, it is contended that the Tribunal erred in relation to its examination of the claim as a matter of contract for constructive unfair dismissal. It failed correctly to apply the provisions of the reasonable adjustments regime in the DDA and it failed to properly analyse the way in which the Respondent had asserted justification in respect of the claim of discrimination contrary to the Part-Time Workers Regulations.
33. As to the contract, Ms Heal put it that at the core of the case there was no contractual justification for the finding that the Claimant had been appointed as Head of Art and without this all of the claim of constructive unfair dismissal must fail. There is a contractual test and there being no consideration for the Claimant's case that she had become Head of Art after her original appointment there could be no finding that there was a breach of contract.
34. As to Part-Time Workers, Ms Heal conjured for us an engaging image of a single strand diverting into a double helix. That is not inapt in this case because, as we have said, when presented with the Claimant putting forward four strands of discrimination, it is unreal to try and disentangle them.
35. The Tribunal failed to analyse correctly the comparables and the justification in respect of Part-Time Workers and on one pleading point the Tribunal has failed. It has said that the claim for comparison with the Head of Design and Technology is made only in respect of the Part-Time Workers claim. Paragraph 71 of the judgment must be related only to part-time working for the claim for disability discrimination is made only by reference to a hypothetical comparator. The Employment Tribunal has failed to go through the structured approach enjoined upon it by a judgment of the Employment Appeal Tribunal, HHJ Serota QC in Smiths Detection Watford Ltd v Berriman UKEAT/0712/04, at paragraph 85. The Tribunal failed to identify for the purposes of the DDA what was the PCP, for it was in two parts. It was, as the Claimant put it, the requirement to work full-time and for students to achieve the "gold standard".
36. When shown the judgment of the Court of Appeal in The Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld [2009] IRLR 475, both Counsel made submissions upon it, the submissions of Ms Heal being that the Tribunal, in our case, had been guilty of a whimsical departure from the contractual approach.

The Claimant's case

37. On behalf of the Claimant, Mr Hyams in a structured argument based upon the authorities contends that it is not necessary for consideration to be shown in specific terms for every adjustment there is in the contract of employment. It is appropriate to consider what the parties did following the original documentation of the contract, to which we will return.
38. As to the criticisms of a paucity of findings in relation to the DDA, it is contended that the hypothetical comparator was made out by the Tribunal, in paragraph 68, and the structured approach in Smiths Detection was indeed exigible from the Employment Tribunal's reasons.
39. In relation to the part-time workers' issue, the sole submission is that the Tribunal was correct to have found that what the Respondent wanted in this case was a full-timer and what they had in place was a part-timer.

The legal principles

40. The legal principles can be derived from the following authorities. As we have mentioned in relation to contract, the correct approach is, to begin with, Western Excavating. In Lee v GEC Plessey Telecommunications [1993] IRLR 383, the question of consideration for a change in terms and conditions, amongst a continuing workforce, arose and was addressed by Connell J in the following way:

"116. Secondly, the plaintiffs assert that where an improvement in the employees' terms and conditions is announced by the employer, the employee gives consideration by continuing to work on the basis of the improved terms and without seeking a larger or more significant improvement. Otherwise, say the plaintiffs, the result would be ludicrous because any employer who announced a pay increase in the context of a pay claim which is then paid by the employer and accepted by the employee could thereafter withdraw the pay increase at will and without being liable to a damages claim for the difference on the basis that there was no consideration for the increased payment.

117. The consideration is, they say: (a) the employee continuing to work; and (b) not continuing with his pay claim, so that the employer avoids industrial action and benefits from the continued services of a known employee.

119 (110.1, 124.5, 160). The situation is similar with an increase in the severance payments made to those who lose their employment due to redundancy, for a redundancy payment is part of the remuneration package. The employee continues to work for the employer, thereby abandoning any argument that the increase should have been even greater and removing a potential area of dispute between employer and employee. The employer has both secured a benefit and avoided a detriment (see Williams v Roffey Bros and Nicholls (Contractors) Ltd [1991] 1 QB 1).

120. The case of Price v Rhondda Urban Council [1923] 2 Ch 372 is plainly distinguishable from the instant case, since in Price there was no negotiation between the employer and the employee as to whether married women should be employed or not, so that there was no extra value to the employer in women teachers continuing in their employment.

123. Further, in the instant case, if in each individual contract of employment there were incorporated the provisions of relevant collective agreements agreed from time to time, as well as general instructions and notices, the contention that each improvement in the employees' terms requires fresh consideration fails to give proper recognition to the value to be attributed by the employer to the continuation of the same workforce in his employ and/or to the possibility of making adjustments from time to time to the detail of the contracts of employment without having to issue new contracts whenever adjustments are put into effect."

41. When looking at the nature of the contract in relation to a contract said to be a sham, the Court of Appeal in Protectacoat Firthglow Limited v Szilagyi [2009] IRLR 365 gave the following guidance. Smith LJ said this:

"56. Tribunals will be well aware that contracts may be partly written and partly oral and that they can also be constituted or evidenced by conduct. While a document which can be shown to be a sham designed to deceive others will be wholly disregarded in deciding what is the true relationship between the parties, it is not only in such a case that its contents cease to be definitive. If the evidence establishes that the true relationship was, and was intended to be, different from what is described in the document, then it is that relationship and not the document or the document alone which defines the contract.

57. In a case involving a written contract, the tribunal will ordinarily regard the documents as the starting point and will ask itself what legal rights and obligations the written agreement creates. But it may then have to ask whether the parties ever realistically intended or envisaged that its terms, particularly the essential terms, would be carried out as written. By the essential terms, I mean those terms which are central to the nature of the relationship, namely mutuality of obligation: see Carmichael v National Power [1999] ICR 1226 and the obligation of personal performance of the work."

42. Sedley LJ added this apercu of his own:

"So far as concerns the substantive issue, it seems to me that, in the field of employment at least, it is more helpful and relevant, in the light of the principles which Smith LJ has derived from the decided cases, to ask in a case like this not whether the written agreement is a sham but simply what the true legal relationship is. Although there will be in many cases (as there was in this one) an intention to conceal or misrepresent the actual relationship, there is no logical reason why this should be a universal requirement. The courts not uncommonly have to decide whether the entirety of a contractual relationship is constituted or evidenced by a document which one party says is definitive, without any need to decide whether that party has studied to deceive or is simply mistaken. I would wish to keep this question open for other cases in which the facts found are not as sharp as those found here."

43. When considering what reasonable adjustments are to be made it is important to start with a consideration of what is a requirement, or in earlier stages of the legislation, an arrangement. For this Smith v Churchill Stairlifts PLC [2006] ICR 525 is instructive. That case drew heavily upon the previous judgment of the House of Lords in Archibald v Fife Council [2004] ICR 954 in looking at what were the arrangements; see, for example, the judgment of Maurice Kay LJ at paragraph 29ff, in particular, the citation from the speech of Lord Hope of Craighead in Archibald at paragraph 11 where this is said:

"11. Mrs Archibald was employed by the council as a manual worker. It was an implied 'condition' or an 'arrangement' of her employment within the meaning of section 6(2)(b) that she should at all times be physically fit to do her job as a road sweeper. She met this requirement when she entered the council's employment on 6 May 1997. She underwent minor surgery in April 1999 as a result of which she became disabled. As a result she was no longer physically fit to do this job. This exposed her to another implied "condition" or "arrangement" of her employment, which was that if she was physically unable do the job she was employed to do she was liable to be dismissed."

44. He also went on to consider a submission as to who the proper comparator was and Maurice Kay LJ said this:

"40. In that kind of case the disabled person is carrying out the work which she is employed to do but is placed at a disadvantage by the conditions of her employer's flexible working scheme. There it is easy to see that an "arrangement" made by the employer places her at a substantial disadvantage in terms of section 6(1). At first sight, the position is rather less clear where, as in the present case, an employee becomes disabled and, simply for that reason, is unable to carry out the essential functions of the job she is employed to do. As Lord McCluskey noted obiter, at para 43, the disabled person's disadvantage might seem to derive from the onset of her disability rather than from any arrangements ..."

45. In relation to the structured approach to which we have adverted by reference to Smiths Detection, the following are the conditions to be considered:

"85. In our opinion an Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 5(2) of the Act by failing to comply with the Section 6 duty must identify:

(a) the relevant arrangements made by the employer

(b) the relevant physical features of the premises occupied by the employer

(c) the identity of non-disabled comparators (where appropriate) and

(d) the nature and extent of the substantial disadvantage suffered by the Claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the Claimant may involve a consideration of the cumulative effect of both "arrangements" and "physical features" so it would be necessary to look at the overall picture.

In our opinion an Employment Tribunal cannot properly make findings of a failure to make reasonable adjustments under Section 5(2) without going through that process."

Discussion and conclusions

46. Applying those principles we have decided that the appeal should be dismissed for we prefer the arguments of Mr Hyams to those carefully addressed to us by Ms Heal. We will take a structured approach to what is now a simpler task for us than it was for the Employment Tribunal.

Unfair dismissal

47. It is difficult to see how an Employment Tribunal could not come to the conclusion that the Claimant was Head of Art. This is because of two findings of fact. The first relates to a statement by the Head Teacher that the Claimant was Head of Art and the live evidence given by Mr Nichols, the Chairman of the Governors, recorded at paragraph 67. We accept that the Claimant was not, in terms, at the start, appointed Head of Art, but she was the only teacher in the Art Department. When new contracts were issued to all staff, in the Claimant's case on 5 March 2001, no distinction was drawn as to the discipline in which she teaches or the grade in which she is. The Employment Tribunal saw two other contracts of teachers who are heads of departments, it is not disputed, and who do not have contracts specifying their discipline or their status in the hierarchy.
48. The Tribunal was thus entitled to come to the conclusion that since they were silent the parties would know whether each managed a small department, in the case of the Claimant, a department of herself, or occasionally with one other. The Tribunal was persuaded by the evidence, not only in documentary form but oral, that the Claimant was Head of Art. In our judgment that is a finding which it was entitled to make. Indeed, we accept the submission it was the only finding which was open to it on the basis of this material. We accept the submission made by reference to Neufeld that what the parties do in relation to the contract of employment during the course of its life is a matter which can affect the construction of the contract.
49. We have been called upon to apply reality in our experience of employment relations. We do. It is only necessary for us to look at the way in which the Court of Appeal examines contracts of employment developing throughout a lifetime in Neufeld.
50. We accept Mr Hyams' submission that, in reality, the Claimant was Head of Art. She had evolved into that position if she was not appointed to it initially, everybody accepted that she was. So without the need for any specific consideration, she continued to stay on at work enjoying, as she perceived it, the status of Head of Art. That was sufficient to indicate if consideration were needed, that had it had been given. Thus the Claimant was entitled to regard her job as coming to an end when it was advertised and she was refused it. There being no live appeal against the auxiliary grounds set out in the Tribunal's judgment, this claim of constructive unfair dismissal was correctly upheld by the Employment Tribunal.

Reasonable adjustments

51. The easiest way to look at the issue of the comparator is through the passage in Smiths Detection. The relevant arrangement, now known as PCP, was that the Claimant should work full-time. There is no need for a consideration of physical features or premises, since that is not an issue in this case. She was not provided with any assistance, so a combination of requiring her to work towards the "gold standard" without assistance, necessarily involving longer hours and was a PCP.
52. We accept Ms Heal's point that the direct comparison in this case with the Head of Design and Technology, who was alleged to be underperforming, is relevant only to the part-time workers' claim and so the Claimant must rely on a finding in relation to hypothetical comparators. As to this, we hold that paragraph 68 of the judgment contains just such an identification; it is with a person who was not disabled. The Tribunal says so and so we hold that the identification of hypothetical comparator has been made good in this case.
53. Finally, as to the nature and extent of the substantial disadvantage, the Claimant under stress was unable to perform the work to the standard required by the employer and this put her at a substantial disadvantage. We may add as a supplement, possibly an (e) under paragraph 85 of Smiths Detection, measures necessary to alleviate that were plainly regarded by the Tribunal as having been made out here. There is no reason, as the Tribunal found, for the Head of Art to be full-time and so the adjustments the Tribunal found to have been reasonably required were not met by the Respondent.

The Part-time Workers' case

54. The Tribunal decided in relation to the part-time worker discrimination in simple terms. It said this:

"73. It is plain to us, as is not in dispute, Mr Ives preferred a full time Head of Art. Ms Parker puts forward the Head of Design and Technology as a comparator. Ms Heal raises time delay points for part of that complaint (the gold standard scholarship aspiration). She may be right. Mr Hyams by his closing submissions has not sought to advance that part of his argument which we disregard (and make no finding in regard to) in favour of the more attractive argument advanced by Mr Hyams, namely that the Head of DT, as a full time worker, was never made to apply for his own post. More appropriately, it seems to us, the issue for us to decide is that as put within the Claim Form, namely that, as a result thereof the Claimant was dismissed from her post on the grounds that she was a part time worker. Ms Heal says that she was not dismissed, she resigned. That is not our finding, see below. She says she (the Claimant) was not demoted, she was never Head of Art. Similarly that is not out finding (see above).

74. We regard the Claimant's status as a part time worker as the principal reason she was not appointed to the Head of Art position. That does not dilute our earlier observation, namely had she been appointed she may not have succeeded in the longer term. But her part time status was the principal reason she was not appointed. We have little doubt that the Claimant, had she been a full time worker akin to the Head of Design and Technology, would not have been dismissed. We do not regard the Respondent's stated business motive as objective justification for the Claimant's dismissal in the face of the view we have already expressed, namely that we do not accept, the school stated requirement in every case, that the incumbent Head of Art be required to be a full time employee, particularly in the face of the opportunity for a full time assistant to work in that Department under the supervision of Ms Parker on a coordinated basis. Thus we agree with Mr Hyams there is a breach of the 2000 Regulations, albeit it is not a breach which is likely to sound significantly, or at all in compensation, because of its overlap with our other findings. But what it comes to is that Ms Parker lost her job because of her part time status, albeit we accept, to a limited extent, the school perception of her as lacking inspiration."

55. That is the synthesis of the evidence which was before it in its previous findings and we have no doubt that the Employment Tribunal addressed the justification advanced by the Respondent and rejected it. It is plain that the school required its Head of Art to be full-time, the Claimant was not. She was dismissed because they wanted to appoint a full-time teacher and thus the discrimination necessary for a finding under the Regulations was made.
56. As the Tribunal says in the following passage when it analysed all of the evidence, including what it has said in relation to disability discrimination, it did not accept that the requirement in every case was that the Head of Art should be a full-time employee. There was a very substantial body of evidence before it for that conclusion and we hold that no error has occurred. In the circumstances the appeal is dismissed.