SUMMARY
DISABILITY DISCRIMINATION
ACT
The Claimant
was a physiotherapist employed by the Respondent in a managerial position. At
the relevant time she was on long term sick leave because she suffered from
chronic fatigue syndrome. She was signed off work by her GP and was unable to
return to her post or perform any productive work. It was accepted that
she was disabled within the meaning of the Disability Discrimination Act
1995.
She
maintained that the Respondent failed to make reasonable adjustments to
facilitate an eventual return to work, contrary to its duties under ss 4A and
18B.
The
Employment Tribunal found that the relevant PCP was the expectation the
Claimant would perform her full role within the contracted hours, and that she
was thereby placed at a substantial disadvantage.
The
Employment Tribunal found that attempts should have been made to produce
something for the Claimant to do by way of rehabilitation, not necessarily
productive, to enable the Claimant to go to her doctor to say, ‘Doctor, this is
what they suggest I do involving perhaps light duties two or three hours a day,
two hours a week. Will you please sign me off to go back to work?’
notwithstanding that her GP maintained that at the time she was unable to
perform any work at all.
The Claimant
maintained that an alternative reasonable adjustment was to permit her to take
a career break.
Neither proposed adjustment
constituted a reasonable adjustment within the meaning of the Act as they did
not prevent the PCP placing the Claimant at a substantial disadvantage in
comparison with persons who were not disabled. Reasonable adjustments are
primarily concerned with enabling the disabled person to remain in or return to
work with the employer. Matters such as consultations and trials, exploratory
investigations and the like do not qualify as reasonable adjustments.
Tarbuck v Sainsbury’s
Supermarkets Ltd [2006] IRLR 664 and Environment Agency v Rowan
[2008] IRLR 20 applied.
HIS HONOUR JUDGE SEROTA
QC
Introduction
1.
This is an appeal by the Respondent and a cross‑appeal by the
Claimant (as we shall continue to call them) from a decision of the Employment
Tribunal at Manchester (Employment Judge Sherrat and lay members)
sent to the parties on 6 August 2010. The Employment Tribunal found
that the Respondent had discriminated against the Claimant, who was disabled,
by failing to make reasonable adjustments. It also found that she had been
unfairly dismissed (constructive dismissal). The appeal was referred to a full
hearing by me on 26 October 2010, and the cross‑appeal was
referred to a full hearing by Langstaff J on 20 December 2010.
Factual background
2.
We take these facts substantially from the decision of the Employment
Tribunal.
3.
The Respondent is a Primary Care Trust and substantial employer. On
3 February 1993 the Claimant joined the Respondent as an occupational
therapist. At the time of her resignation/dismissal (23 June 2008)
she was the Community Paediatric Team Leader/Clinical Specialist. She remained
an occupational therapist but at a managerial level, and led a team of five
paediatric occupational therapists while continuing to practice herself.
4.
In late 2005 she took on a new post to review and assist young people in
the care of the Respondent’s children’s services, making the transition to the
care of its adult services. She worked together with a senior physiotherapist,
Mrs Walmsley; each worked approximately nine hours in this post part‑time.
Various responsibilities were in due course added to her job description, which
was referred to as “transitional work.” She was paid at band 8a and worked
from the Respondent’s premises at Burrows House. Her work entailed significant
contact with the public.
5.
In late 2006 and early 2007 dramatic events occurred in the Claimant’s
personal life; we need not go into further detail. She took some time off and
returned to work, but on 29 March 2007 she was certificated sick with
a chest infection. She never in fact returned to work or indeed was passed fit
for any work by her medical advisors. The Claimant later suffered from
post‑infection debility and on 29 August 2007 was diagnosed as
suffering from post‑viral fatigue syndrome, and on
19 September 2007 with chronic fatigue syndrome (CFS), which was her
claimed disability.
6.
While the Claimant was off sick her transition role was divided among
others and in effect ceased to exist. On 7 August 2007 she first saw
an occupational health nurse and thereafter had a series of meetings with her
new manager, Kim Whitehead, some eight in all. She was referred to the
Respondent’s occupational health advisors to explore what she might be able to
do; she was unable to return to her post, but the transition post was her
preferred option when she was able to return to work.
7.
The meetings between the Claimant and Ms Whitehead were not minuted
as such, but as is common practice the meetings were followed by a detailed
letter to the Claimant, who was given the opportunity to correct anything in
the letter if she felt it appropriate to do so. She did not do so on any
occasion. Various posts were explored which might (when the Claimant was able
to return to work) accommodate her. She tried to go to Burrows House to
maintain contact with her work as suggested by Dr Gallagher, the
occupational health physician. This was not successful, and the Claimant was
not able to identify a suitable location where she might feel comfortable; see
Employment Tribunal paragraph 18).
8.
Reference was also made to the occupational health physician for advice
as to whether ill‑health retirement was a possible option, or termination
of the Claimant’s employment on the grounds of capability.
9.
On 9 January 2008 the Claimant was informed that it might be
necessary to consider termination of her employment depending on information
received from the occupational health physician following his review of the
Claimant’s position shortly to take place.
10.
On 17 January 2008 Dr Gallagher wrote to the Respondent
to the effect that the Claimant would be unable to deal with clients for a
period of months rather than weeks. He considered that it was important that
the stress upon the Claimant was not increased by expecting her to return to
normal duties sooner than she was capable. Such pressure would be counter‑productive
and impede her eventual return to work. Dr Gallagher envisaged any return
to work would need to be on a gradually phased basis. He stated:
“I am not convinced that she is currently able to resume any
productive work. I recommend that you think in terms of helping her get back
to work in some capacity (as distinct from doing productive work) as a first
objective.”
11.
He did not consider that the Claimant would have grounds for ill‑health
retirement, nor did he think she could return to her current post because of
her inability to deal with clients. The option of a reduction in hours and
change of role and responsibilities was the most suitable one, which would need
to involve non‑clinical work and a very gradually phased return to work:
“However, I cannot advise that she is currently ready to assume
this type of approach. The possibility of an employment break should not be
ruled out, but I would not regard this as the best option at this stage.
Summarising, I think at this moment in time she is unfit for work of any kind.
The only possible increase of contact with work could be a matter of an hour or
two a week simply as a means of maintaining non‑clinical contact.
Listening to her account of the workplace, her perception of the workplace is
that it is stressful, and that this is leading to a long hours culture.”
12.
He went on to recommend that in preparation for an eventual return to
work an occupational stress risk assessment should be carried out. The terms
of this letter were discussed at a meeting on 1 February 2008 (which
again referred to the possibility of employment being terminated).
13.
On 27 February 2008 Dr Gallagher again wrote; the
Claimant’s psychological state was unchanged, and he suggested the option of a
career break appeared better than when he last saw her, to protect her
employment and allow her the breathing space she needed to recover. His
opinion was that there was every reason to expect a good long term recovery so
she should regain her work fitness. The Claimant’s husband (who assisted and
indeed represented her) emailed Ms Whitehead on 27 February 2008
and pressed for concrete proposals included rehabilitation options,
identification of work she could do, and also raising the possibility of a
career break, retirement options and sickness payments. The Respondent had
made it clear it could not support a career break.
14.
The letter following the next meeting contained a now familiar reference
to the possibility of termination of employment.
15.
By late March 2008 Dr Gallagher had further consulted with the
Claimant’s GP, Dr Moss. His prognosis was uncertain, although he would
expect a slow but gradual improvement. He considered it unlikely that the
Claimant would return to pre‑diagnosis levels of mental acuity and
physical energy. It would set the Claimant back were she to be forced to
return to previous employment. He suggested part‑time work in the
summer, possibly two mornings a week, two to three hours at most preferably
with a day in between, and if the Claimant could manage that, working at that
level for three months and then building up slowly; this would be better in a
non‑client‑facing environment. Dr Gallagher reported to
Ms Whitehead that the simplest solution would be a career break, but if
this was not acceptable to the Respondent which would have to consider whether she
could get back to work sooner than recommended by her GP.
16.
Meanwhile the Claimant was becoming frustrated with the failure to
resolve issues, and on 19 April 2008 Mr Smith wrote a letter to
the HR Director of the Respondent, Mr Fish, in which he expressed that
frustration. Mr Smith’s letter had been written between a meeting that
took place on 11 April 2008 and the letter of confirmation, which was
not sent until 13 May 2008. It is apparent that at this meeting the
Claimant made clear she did not wish to return to Burrows House in any capacity
because it was “too busy,” and was unable to identify a suitable location for
her to return to in any capacity. She accepted that she did not wish, nor
could she, return to her band 8a post as a specialist occupational therapist.
She was returned to half pay at this meeting (it is unclear to us when this had
previously ceased). Half pay was backdated to 1 April 2008. It is
clear that the Respondent considered the Claimant was unable to return to post,
so it considered other posts. It considered posts up to band 7, but the
Claimant did not consider it appropriate to undertake administrative work
because she had no IT competence. The Respondent was willing to give her IT
training. On 23 May 2008 Ms Whitehead invited the Claimant to a
further meeting on 30 May 2008, but late on 29 May 2008
Mr Smith wrote to complain that no progress had been made and detailed
proposals were required. Mr and Mrs Smith would be unable to attend the
meeting on 30 May 2008.
17.
Ms Whitehead sent a detailed letter on 12 June which recounted
the attempts that had been made and previous discussions as to finding a role
for the Claimant on the basis she was unable to return as a clinical
specialist. She also gave explanations, previously discussed, why posts that
were available were unsuitable: by reason of her current disabilities,
including the inability to have face‑to‑face contact with the
public, or because she did not have sufficient IT skills. The Respondent again
offered to provide training and invited her to a meeting of
18 June 2008, which again she did not attend. The Respondent had
considered various other posts, but they were considered to be unsuitable or
inappropriate.
18.
On 18 June 2008, after the Claimant had now failed to attend
two meetings, the Respondent wrote to invite her to a further meeting on
25 or 27 June 2008. She was advised to bring a trade union
representative, and in her absence it was made clear the Respondent might have
to consider employment options including termination. As the Employment
Tribunal noted the final paragraph referring to employment options had been
included in previous letters, so it was not new to the Claimant.
19.
As the Employment Tribunal put it, the Claimant “took against” the
Respondent on receipt of that letter and decided she must resign, as she did on
23 June 2008. The letter contains the following, which was quoted by
the Employment Tribunal:
“I regret that this situation has reached a stage where I no
longer have any confidence in my value to the PCT as an employee. Furthermore,
our meetings and letters give me no confidence that medical advice from my GP
and Dr Gallagher has been accepted. It appears that the PCT is not
willing to accommodate the change in my health and circumstances nor to
facilitate my eventual return to meaningful, productive and manageable work.
My resignation is enclosed. We will be discussing pursuing a grievance
procedure with Andy Gill in the immediate future. I wish the Children’s
Therapy Team the best possible success for the future.”
20.
The Claimant threatened to issue a grievance, but did not do so until
3 September 2008.
The Decision of the Employment Tribunal
21.
The Respondent submitted to the Employment Tribunal that there had been
no failure to make reasonable adjustments nor had there been a constructive
dismissal, because there had been no breach of the implied term of trust and
confidence. The letter of 18 June 2008 was not capable of being a
“last straw,” and reference was made to the well‑known decision in Omilaju v London Borough of Waltham Forest [2005] IRLR 35.
Mr Grundy, counsel for the Respondent, submitted that reasonable
adjustments had to be such as would have some practical consequences for
preventing or mitigating the difficulties caused by the relevant provision,
criteria or practice (PCP). These would not include a career break. There had
been no failure to make reasonable adjustments and no constructive dismissal.
It was submitted on behalf of the Respondent that the PCP in this case was the
expectation that the Claimant would be able to perform her full role.
22.
The Claimant submitted that the PCP was an expectation that the Claimant
might return to her substantive post. Although the Claimant was unfit to
return to work the Respondent should have taken steps to help her get back in
some capacity. The Respondent was not sufficiently proactive; it had been slow
in its investigations, and there had been no proper investigation as to what
she might do. The Respondent was a large employer, and should have got the
Claimant back to work; we interpolate to ask the obvious question, how and when?
because she was still unfit for work.
23.
The Employment Tribunal then directed itself as to the law. It cited
from an IDS handbook and from the decision of London Borough of Hillingdon v Morgan
[1999] EAT 1493/98 as authority for the proposition that rehabilitation was
itself a reasonable adjustment. It also referred to an ACAS code of practice
that had been superseded. We understand that the Employment Tribunal did not
have a copy of the case. The Employment Tribunal then went on to consider
section 4 of the Disability Discrimination Act and
section 18B, as well as the authorities of Environment Agency v Rowan
[2008] IRLR 20 and Buckland v University of Bournemouth
[2010] IRLR 445. It concluded (see paragraph 49) that the PCP was the
expectation that the Claimant would do her full role in the contracted hours.
This placed her at a substantial disadvantage because she was unable to multi‑task,
deal with clients or set up emotional barriers. This was what the Employment
Tribunal described as a “mountain” she would have to climb if she were to
perform her role. Further, she could not work in a noisy or busy environment.
24.
At paragraph 50 the Employment Tribunal noted that the Respondent
was:
“[...] a Primary Care Trust and a substantial employer with
commensurate resources. There was advice from Dr Gallagher and the
claimant’s GP that the claimant was fit for rehabilitation not necessarily for
substantive work. Given the size and resources of the respondent we take the
view that attempts should have been made to produce something for the claimant
to do by way of rehabilitation, not necessarily productive, but proposals
should have been made to enable the claimant to go to her doctor to say,
‘Doctor, this is what they suggest I do involving perhaps light duties two or
three hours a day, two hours a week. Will you please sign me off to go back to
work?’ [...] That would have been a reasonable adjustment and in our judgment
it should have been made. The fact that such a reasonable adjustment was not
made, in our view, makes this a case where the respondent has failed in its
duty to the claimant under the reasonable adjustments provisions of the DDA and
so there has been disability discrimination.”
25.
The Employment Tribunal then turned to consider breach of the duty of
trust and confidence. The Employment Tribunal at paragraph 51 repeated
the terms of the Claimant’s letter of 23 June 2008, which we have set
out earlier, and went on to ask:
“[...] was it reasonable for the claimant to hold that belief?
We take the view that it was and indeed we have so found in our findings on the
question of disability discrimination. Was this a loss of trust and confidence
entitling the employee to leave? The employer has a statutory duty under the
DDA. We take the view that the respondent’s failure to comply with that duty
without reasonable and proper cause reasonably caused the claimant to lose
trust and confidence in the employer therefore entitling her to leave.”
26.
As no potentially fair reason had been put forward by the Respondent,
this was, in the words of the Employment Tribunal, “an unfair constructive
dismissal.”
Notice of Appeal and Respondent’s submissions
27.
Mr Grundy submitted that the “reasonable adjustment” found by the
Employment Tribunal which we have just referred to was not in law a reasonable
adjustment. It was not contended for by the Claimant in the list of issues
(see page 75 of the bundle), nor was it addressed in evidence, nor is it
an adjustment contemplated by the code of practice. Failure to make proposals
for non‑productive work is at best a matter of procedure rather than an
adjustment, and would neither prevent nor alleviate the substantial
disadvantage of her inability to multi‑task, deal with clients or set up
emotional boundaries and work in a noisy or busy environment. The Respondent
stressed that a distinction needed to be drawn between procedural steps an
employer might take to determine what reasonable adjustments ought to be made
as distinct from the reasonable adjustments themselves, or substantive steps
that might be taken to prevent the relevant substantial disadvantage. The duty
to consult a GP or put forward proposals were not in themselves substantive
steps; reliance was placed on Tarbuck v Sainsbury’s Supermarkets Ltd
[2006] IRLR 664 and on Newcastle City Council v Spires
[2011] EAT 22 February 2011.
28.
The Employment Tribunal’s proposal at paragraph 50 was not “Meek”
compliant: see Meek v City of Birmingham District Council
[1987] IRLR 250. The Employment Tribunal had failed to give adequate reasons
to explain what proposals for non‑productive work might have been made
and when, and how these would have prevented or alleviated the substantial
disadvantage identified. Further, it should have explained how such proposals
were within the meaning of section 18(b) of the Disability Discrimination Act
or the code of practice, and why this failure amounted to a repudiatory breach.
The Employment Tribunal should have borne in mind that medical evidence was
that the Claimant was unfit for any work, including part‑time work, at
least until the summer of 2008; and that the Respondent had attempted to meet
the Claimant on at least two occasions to discuss the situation further, and
the Claimant had declined to attend the meetings.
29.
It was submitted that the Employment Tribunal should have explained why
the Respondent’s proposal (which was made and accepted) that the Claimant
should come into Burrows House for two to three hours to see how she coped was
not reasonable.
30.
The Respondent complained that the Employment Tribunal had referred to
an out‑of‑date ACAS code which it quoted from the IDS brief and Morgan.
The case in any event was not in point, and if it was relied upon as authority
for the proposition that procedural steps such as trial periods at home or
formulating proposals for rehabilitation could be reasonable adjustments it no
longer was good law.
31.
It was also observed that no employer could take someone back for any
kind of work unless cleared to work by their GP. Otherwise, there would be
insurance and health and safety issues. The purpose of the meeting called for
25 June 2008 was to discuss possible steps that might enable the
Claimant in due course to return to work.
32.
In relation to unfair dismissal on the basis of breach of the implied
term of trust and confidence, the Employment Tribunal, it was submitted, had
not applied the objective test as to whether the Respondent acted in breach of
the implied term of trust and confidence but a subjective test of whether it
was reasonable for the Claimant to hold the belief set out in her letter of
23 June 2008. We were referred to the speech of Lord Nicholls
in Malik v BCCI [1997] IRLR 462. The Employment
Tribunal wrongly asked itself whether the Respondent’s failure to comply with
its duty had reasonably caused the Claimant to lose trust and confidence; it
looked at the matter from the Claimant’s perspective rather than objectively.
33.
It was submitted that not every failure to comply with the duty to make
reasonable adjustments amounted to a breach of the implied term; reference was
made to Greenhof v Barnsley Metropolitan Council
[2006] IRLR 97.
34.
In relation to the “last straw,” the Employment Tribunal did not address
the issue as to whether the letter could properly amount to a “last straw.”
The last straw had to be more than innocuous, even if the Claimant had
interpreted it genuinely but mistakenly as hurtful and destructive of trust.
Further, it had to be the last in a series of acts and incidents which
cumulatively amounted to a repudiation of the contract. Also, the letter of
18 June 2008 was entirely innocuous; the final paragraph was standard
and not new to the Claimant.
35.
The Employment Tribunal did not address the issue that at the time of
her resignation the process of considering adjustments was a continuing one.
36.
Further, the Employment Tribunal had not given adequate reasons to
explain what proposals for non‑productive work should have been made and
when, and how failure to make such proposals amounted to a repudiatory breach
of contract.
The Claimant’s submissions and cross‑appeal
37.
The adjustment relied upon, it was submitted, was not a process but an
adjustment. The Employment Tribunal had the case of Rowan well
in mind. If the Employment Tribunal had failed to record what the outcome may
have been of the steps, it suggested in paragraph 50 the appropriate
course was to remit the matter for further consideration by the Employment
Tribunal under the Burns/Barke procedure.
38.
The Employment Tribunal should have asked itself if the burden of proof
had shifted to the Respondent in relation to rehabilitative work; the
Respondent had failed to satisfy the burden of proof that it had made
reasonable adjustments.
39.
Even if there was no duty on the part of the Respondent to make
reasonable adjustments, the Employment Tribunal was entitled to conclude that
the failure to provide rehabilitative work was a breach of the duty of trust
and confidence, and would thus justify constructive dismissal.
40.
The cross‑appeal was to the effect that the PCP of requiring the
Claimant to return to her substantive post or face dismissal placed her at a
substantial disadvantage; this would have been alleviated by a career break. A
career break was a reasonable adjustment and was one of the issues set out for
the Employment Tribunal to consider; see page 76 at 4:4. A career break
had been suggested by the occupational health physician, Dr Gallagher, to
Ms Whitehead, as it would give the Claimant the chance of recovery. In
those circumstances it would have been a reasonable adjustment. The Employment
Tribunal never adjudicated upon this.
41.
Mr Grundy responded to the cross‑appeal by submitting that the
Employment Tribunal was correct at paragraph 36 when it held that, “a
career break was not designed to cover the situation obtaining and was not a
reasonable adjustment.”
42.
The Claimant had made no submissions on this point, and in fact never
applied for a career break. The PCP was not as the Claimant had asserted, but
as the Employment Tribunal had found at paragraph 49, namely that it was
expected the Claimant could do her full role in contracted hours. There was no
reference in that PCP to any failure to comply automatically leading to
dismissal. The effect of the PCP that prevented the Claimant returning to work
would not have been alleviated by a career break; it would not have enabled the
Claimant to return to work or mitigate or alleviate the effect of the
substantial disadvantage caused to her by the PCP. Further, the career break
would have suspended any obligation on the Claimant to undertake any duties,
and would not have been a reasonable step to prevent the disadvantage caused by
the PCP. A PCP would have been outside the terms of section 18(b)(ii) of
the Act; the terms of the Respondent’s employment break policy made clear that
the purpose of the policy was to provide an opportunity for the Respondent’s
staff:
“[...] to tailor their working life to meet commitments in
family life (for example, childcare, elder care, care for another dependent,
training, study leave or work abroad) while maintaining and developing their
CARRERS [sic] to meet their individual needs and those of the Trust. Other
reasons for an employment break will be considered on their merits [...].”
43.
The Employment Tribunal did not address this policy. Further, the
statutory code of practice makes no reference to a career break as being a
possible reasonable adjustment.
The law
44.
Discrimination is defined in section 3A of the Disability Discrimination Act 1995:
“(1) For the purposes of this Part, a person discriminates
against a disabled person if-
(a) for a reason which relates to
this disabled person’s disability, he treats his less favourably than he treats
or would treat others to whom that reason does not or would not apply, and
(b) he cannot show that the treatment
in question is justified.
(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.
(3) Treatment is justified for the purposes of subsection (1)(b)
if, but only if, the reason for it is both material to the circumstances of the
particular case and substantial [...].
(5) A person directly discriminates against a disabled person
if, on the ground of the disabled person’s disability, he treats the disabled
person less favourably than he treats or would treat a person not having that
particular disability whose relevant circumstances, including his abilities,
are the same as, or not materially different from, those of the disabled
person.”
45.
Section 4A provides for the duty placed on employers to make
adjustments:
“(1) Where-
(a) a provision, criterion or
practice applied by or on behalf of an employer, or
(b) any physical feature of 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.
(2) In subsection (1), ‘the disabled person concerned’ means-
(a) in the case of a provision,
criterion or practice for determining to whom employment should be offered, any
disabled person who is, or has notified the employer that he may be, an
applicant for that employment;
(b) in any other case, a disabled
person who is-
(i) an applicant
for the employment concerned, or
(ii) an employee
of the employer concerned.
(3) Nothing in this section imposes any duty on an employer in
relation to a disabled person if the employer does not know, and could not
reasonably be expected to know-
(a) in the case of an applicant or
potential applicant, that the disabled person concerned is, or may be, an
applicant for the employment; or
(b) in any case, that the person has
a disability and is likely to be affected in the way mentioned in subsection
(1).”
46.
Further provision as to reasonable adjustments is to be found at
section 18B:
“(1) In determining whether it is reasonable for a person to
have to take a particular step in order to comply with a duty to make
reasonable adjustments, regard shall be had, in particular, to-
(a) the extent to which taking the
step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is
practicable for him to take the step;
(c) the financial and other costs
which would be incurred by him in taking the step and the extent to which
taking it would disrupt any of his activities;
(d) the extent of his financial and
other resources;
(e) the availability to him of
financial or other assistance with respect to taking the step;
(f) the nature of his activities and
the size of his undertaking;
(g) where the step would be taken in
relation to a private household, the extent to which taking it would-
(i) disrupt that
household, or
(ii) disturb any
person residing there.
(2) The following are examples of steps which a person may need
to take in relation to a disabled person in order to comply with a duty to make
reasonable adjustments-
(a) making adjustments to premises;
(b) allocating some of the disabled
person’s duties to another person;
(c) transferring him to fill an
existing vacancy;
(d) altering his hours of working or
training;
(e) assigning him to a different
place of work or training;
(f) allowing him to be absent during
working or training hours for rehabilitation, assessment or treatment;
(g) giving, or arranging for,
training or mentoring (whether for the disabled person or any other person);
(h) acquiring or modifying equipment;
(i) modifying instructions or
reference manuals;
(j) modifying procedures for testing
and assessment;
(k) providing a reader or
interpreter;
(l) providing supervision or other
support.”
47.
At this point we stress that reasonable adjustments are limited to those
that prevent the PCP or feature placing the disabled person concerned at a
substantial disadvantage in comparison with persons who are not disabled.
Reasonable adjustments are primarily concerned with enabling the disabled
person to remain in or return to work with the employer.
48.
The PCP in this particular case as found the Employment Tribunal at
paragraph 49 was the expectation the Claimant would perform her full role
within the contracted hours, and that she was thereby placed at a substantial
disadvantage by reason of her disability. The effect of the PCP and the nature
and extent of the substantial disadvantage were that she was unable to multi‑task,
deal with clients, set up emotional barriers, and, as we have noted, would have
to “climb a mountain” in order to perform her role. She was unable to work in
a noisy or busy environment. Any proposed reasonable adjustment must be judged
against the criteria that they must prevent the PCP from placing her at the
substantial disadvantage.
49.
Adjustments that do not have the effect of alleviating the disabled
person’s substantial disadvantage as we have set it out above are not
reasonable adjustments within the meaning of the Act. Matters such as
consultations and trials, exploratory investigations and the like do not
qualify.
50.
This was made clear by Elias J in Tarbuck. He made
clear there was no such duty as a duty to consult; this would not amount to a
reasonable adjustment in itself. He observed at paragraph 72 of the
decision that a failure to consult might make it difficult or impossible for an
employer to say that a particular adjustment would not be reasonable. An
employer cannot use the lack of knowledge that would have resulted from
consultation as a shield to defend a complaint he has not made reasonable
adjustments. Underhill P followed this dictum in HM Prison Service v Johnson
[2007] IRLR 951.
51.
In Rowan I had this to say about a trial period of home‑working:
“61. We do not decide the question as to whether the trial
period of home‑working was capable of constituting a reasonable adjustment
because for some reason the matter was not fully argued. However, we have
considerable difficulty in seeing how an investigation or trial period as such
can be regarded as a reasonable adjustment; we do not need to decide the point
but express our doubts. A trial period is a procedure that an employer should
sensibly adopt in an appropriate case but does not appear to be an adjustment
as such. It is not a procedure specifically referred to in S4A or S18B(2). As
has been observed in other cases what S4A and S18D(2) envisage is that steps
will be taken which will have some practical consequence of preventing or
mitigating the difficulties faced by a disabled person at work. It is not
concerned with the process of determining what steps should be taken; it is
prudent for employers to adopt a trial period in an appropriate case to see
whether home‑working for example is a reasonable adjustment. An employer
who has failed to investigate the possibility of home‑working by a trial
period may find it difficult to establish that home‑working was not a
reasonable adjustment. We consider that a trial period is akin to a
consultation, or the obtaining of medical and other specialist reports; these
do not themselves mitigate or prevent or shield the employee from anything.
They serve to better inform the employer as to what steps, if any, will have
that effect, but of themselves they achieve nothing. In circumstances such as
the present case, where there is an issue as to whether home‑working
would be a reasonable adjustment a trial period of home‑working is a tool
which may enable the parties to determine whether home‑working is in fact
capable of being a reasonable adjustment that would, in this case, prevent or
mitigate the difficulties said to be faced by the claimant when working in the
Respondent’s office.”
52.
Newcastle City Council v
Spires (supra), was a case where the Claimant was unable to work and
had taken out a grievance. The issues had been agreed and recorded; the
Employment Tribunal dealt with issues that had not been raised.
HHJ Richardson accepted that the Employment Tribunal should have
concentrated on the agreed issues, and that it was impermissible to come up
with its own solution without giving the parties the opportunity to deal with the
matter. At paragraph 27 counsel for the Appellant in that case submitted
that the Tribunal had erred in law in the way it had dealt with the issue of
medical redeployment. It did not find that Mrs Spires should have been
medically redeployed. It found only that medical redeployment should have been
“explored” or “considered.” This was a matter preparatory to substantive
action being taken and, on the authority of Tarbuck, was not a
free‑standing reasonable adjustment of the kind contemplated by the Act:
“34. The giving of early assurances to Mrs Spires was not a
reasonable adjustment put forward on behalf of Mrs Spires; and the
Tribunal ought not to have found the Council in breach of its duty to make
reasonable adjustments on this basis.”
53.
We have considered London Borough of Hillingdon v Morgan.
Although at paragraph 28 the Employment Tribunal said, “they [the
employers] are required to see if they can make reasonable adjustments so as to
enable a person who is disabled to be retained in their employment,” the case
is of little assistance beyond being authority for the proposition that a
phased return to work may be a reasonable adjustment. It is not authority for
the proposition that rehabilitation is a reasonable adjustment.
54.
We now turn to consider the authorities on breach of the implied term of
trust and confidence.
55.
We start by referring to Buckland. HHJ Peter Clark
pointed out the proof error in the report of Mahmud v BCCI
[1997] ICR 606. HHJ Clark observed:
“[...] on a breach of the implied term of trust and confidence
requires the employee to show that the employer has, without reasonable and
proper cause conducted himself in a matter calculated or likely to destroy or
seriously damage the relationship of confidence and trust between them. See Mahmud
[...].”
56.
The relevant passage from the speech of Lord Steyn, amended to take
account of the proof error of the use of the word “and’ for the use of the word
‘or’, wherein italicised:
“[...] For convenience I shall set out the [implied] term again.
It is expressed to impose an obligation that the employer shall not:
‘[...] without reasonable and proper cause, conduct itself
in a manner calculated or likely to destroy or seriously damage the
relationship of confidence and trust between employer and employee.’”
57.
The conduct must be such, it must be stressed, as to amount to a
repudiatory breach of contract so the individual act or omission, or the
cumulative effect of a number of acts or omissions, must be significant. The
test, as appears from the Judgment of Dyson LJ in the passage we shall
quote from Omilaju, is objective (paragraph 14):
“4. The test of whether there has been a breach of the implied
term of trust and confidence is objective. As Lord Nicholls said in Malik
at page 35C, the conduct relied on as constituting the breach must
‘impinge on the relationship in the sense that, looked at objectively,
it is likely to destroy or seriously damage the degree of trust and confidence
the employee is reasonably entitled to have in his employer (emphasis added).
5. A relatively minor act may be sufficient to entitle the
employee to resign and leave his employment if it is the last straw in a series
of incidents. It is well put at para [480] in Harvey on Industrial Relations
and Employment Law:
‘Many of the constructive dismissal cases which arise from
the undermining of trust and confidence will involve the employee leaving in
response to a course of conduct carried on over a period of time. The
particular incident which causes the employee to leave may in itself be
insufficient to justify his taking that action, but when viewed against a
background of such incidents it may be considered sufficient by the courts to
warrant their treating the resignation as a constructive dismissal. It may be
the ‘last straw’ which causes the employee to terminate a deteriorating
relationship.’”
58.
We also refer from the lengthy and well‑known passage cited by
Mr Grundy from the Judgment of Dyson LJ:
“19. The question specifically raised by this
appeal is: what is the necessary quality of a final straw if it is to be
successfully relied on by the employee as a repudiation of the contract? When
Glidewell LJ said that it need not itself be a breach of contract, he must
have had in mind, amongst others, the kind of case mentioned in Woods at
p 671F‑G where Browne‑Wilkinson J referred to the
employer who, stopping short of a breach of contract, ‘squeezes out’ an
employee by making the employee's life so uncomfortable that he resigns. A
final straw, not itself a breach of contract, may result in a breach of the
implied term of trust and confidence. The quality that the final straw must
have is that it should be an act in a series whose cumulative effect is to
amount to a breach of the implied term. I do not use the phrase ‘an act in a
series’ in a precise or technical sense. The act does not have to be of the
same character as the earlier acts. Its essential quality is that, when taken
in conjunction with the earlier acts on which the employee relies, it amounts
to a breach of the implied term of trust and confidence. It must contribute
something to that breach, although what it adds may be relatively
insignificant.
20. I see no need to
characterise the final straw as ‘unreasonable’ or ‘blameworthy’ conduct. It may
be true that an act which is the last in a series
of acts which, taken together, amounts to a breach of the implied term of trust
and confidence will usually be unreasonable and,
perhaps, even blameworthy. But, viewed in isolation, the final straw may not
always be unreasonable, still less blameworthy. Nor do I see any reason why it
should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively
amount to a repudiation of the contract by the employer. The last straw must
contribute, however slightly, to the breach of the implied term of trust and
confidence. Some unreasonable behaviour may be so
unrelated to the obligation of trust and confidence that it lacks the essential
quality to which I have referred.
21. If the final straw is not
capable of contributing to a series of earlier acts which cumulatively amount
to a breach of the implied term of trust and confidence, there is no need to
examine the earlier history to see whether the alleged final straw does in fact
have that effect. Suppose that an employer has committed a series of acts
which amount to a breach of the implied term of trust and confidence, but the
employee does not resign his employment. Instead, he soldiers on and affirms
the contract. He cannot subsequently rely on these acts to justify a
constructive dismissal unless he can point to a later act which enables him to
do so. If the later act on which he seeks to rely is entirely innocuous, it is
not necessary to examine the earlier conduct in order to determine that the
later act does not permit the employee to invoke the final straw principle.
22. Moreover, an entirely
innocuous act on the part of the employer cannot be a final straw, even if the
employee genuinely, but mistakenly, interprets the act as hurtful and
destructive of his trust and confidence in his employer. The test of whether
the employee's trust and confidence has been undermined is objective (see the
fourth proposition in para 14 above).”
Conclusions - general
59.
We now turn to our conclusions. It will be recalled that the reasonable
adjustment found by the Employment Tribunal was that the Respondent should have
produced something the Claimant could take to ask her GP to sign off for, such
as two to three times per day, two to three times per week as a form of
rehabilitation even if not productive work, some form of “light duties”. The
short answer to this appeal is that this was not a reasonable adjustment. Similarly,
so far as the cross‑appeal is concerned, the suggestion that the
Respondent should have permitted the Claimant to take a career break was
equally not a reasonable adjustment for the reasons given by Elias J in Tarbuck
and given by me in Rowan.
60.
I have had the benefit of sitting with two lay members who have
considerable industrial experience. Their view on the facts before this
Employment Tribunal was that this employer did not have a closed mind; it did
what an employer should have done, and explored retraining the Claimant in IT
(something she was unwilling to undertake). It proposed her attending at Burrows
House to keep in touch with fellow employees; something she did not feel able
to do. It ascertained that there was no job which the Claimant was capable of
doing at the time, whether part‑time or otherwise, let alone her original
post. The Claimant never disagreed with any of the letters sent to her, in
which the efforts made by the Respondent had been set out. She chose not to
attend two meetings intended to discuss possible adjustments. The Claimant
could not even attend Burrows House simply to meet colleagues because she found
this too stressful.
61.
The career break that was argued for in the cross‑appeal is
incapable of being a reasonable adjustment. My colleagues have never heard of
a career break being used in the way the Claimant suggested. They would regard
it as highly irregular and contrary to proper and recognised industrial
practice, let alone good industrial practice. It would be contrary to the
terms of the career break policy which Mr Grundy referred to
(page 146 of our bundle) and would in no way be a substitute for long‑term
sick leave. Had the Respondent proposed that the Claimant should be
transferred from long‑term sick leave to a career break, the Claimant
would have had legitimate cause for complaint, for being moved from long‑term
sickness absence with benefits, including at the time half pay, to an unpaid
career break which in no way would have prevented the disadvantage caused to
the Claimant by the PCP, as found by the Employment Tribunal, or alleviated her
inability to multi‑task, deal with clients, set up emotional barriers, or
“climb the mountain.”
62.
As Mr Clancy pointed out during the course of submissions, how
would a change of label from long‑term sick leave to career break enable
the Claimant to return to work? Mrs Gallico pointed out that transfer to
a career break could prejudice the Claimant by frustrating the possibility of
ill‑health retirement, because she would not have been shown to be sick.
She would also of course lose her half pay. We are all agreed that a transfer
would have set a highly undesirable precedent.
Proposal for non‑productive work – unfair dismissal
63.
Suggestion by the Employment Tribunal that the Respondent should have
produced something the Claimant could have taken to ask her GP to sign her off
for as being a form of rehabilitation is also not a reasonable adjustment for
the same reasons as the career break. It simply would not mitigate the effects
of the PCP.
64.
We also accept the Respondent’s submission that the proposal made the
Employment Tribunal at paragraph 50 was not Meek compliant
because the Employment Tribunal had failed to give adequate reasons to explain
what proposals for non‑productive work should have been made and when,
and how these would have prevented or alleviated the substantial disadvantage
identified; and, further, how such proposals were consistent with
section 18B or with the code of practice. The Employment Tribunal should
also have explained why the failure of the Respondent to make such a proposal,
together with other matters, could amount to a repudiatory breach of contract.
It is necessary, of course, to bear in mind that the Claimant’s GP had said she
was unfit for any work including part‑time work until the summer
of 2008.
65.
In any event and independently the proposal made by the Employment
Tribunal was not an issue that had been identified and argued, and for that
reason alone the Employment Tribunal should not have considered the point.
Breach of confidence last straw
66.
The decision of the Employment Tribunal that there had been a
constructive dismissal is wrong on three separate grounds. There was no “last
straw”; the letter of 18 June 2008 was wholly innocuous. The
Respondent’s earlier behaviour was not repudiatory. The fact that there was a
reference of the possibility of termination on the grounds of capability was
both standard and reasonable in the circumstances. The Employment Tribunal’s
findings in relation to constructive dismissal depended on the failure to make
reasonable adjustments. There was no such failure.
67.
In any event the Employment Tribunal applied a subjective as opposed to
an objective test to determine if there was a breach of the implied term; see
the passage from the speech of Lord Nicholls in Malik set
out in the passage from Omilaju in the Judgment of Dyson LJ
we quoted above. The Employment Tribunal used the language of subjective
intent (whether it was reasonable for the Claimant to hold the belief)
expressed in her letter of resignation which we have quoted from earlier.
68.
Although it is not necessary so far as this decision is concerned, we
would observe that in our opinion the reasoning of the Employment Tribunal in
relation to constructive dismissal was not Meek compliant as
submitted by Mr Grundy. The Employment Tribunal had also not given
consideration to the fact that the Claimant was on indefinite half pay, and the
reasonable adjustments were to be discussed and were under consideration at a
time when the Claimant was still unable to do any work. There is no
explanation from the Employment Tribunal as to what proposals for non‑productive
work should have been made and when, and how a failure to make such proposals
could amount to a repudiatory breach of contract.
69.
In the circumstances, the appeal must be allowed, and the cross‑appeal
must be dismissed.
