Marks and Spencer Plc v Powell UKEAT/0258/10/LA
Appeal against a ruling that the respondent had failed to make a reasonable adjustment and the claimant had been unfairly constructively dismissed. Appeal allowed and claims dismissed.
The claimant had Tourette's Syndrome, linked OCD and a related vulnerability to stess and anxiety. She was classified as disabled under the DDA. She went off sick with stress, but a few days before this she had been caught shoplifting in another shop and given a police caution. She attended one meeting with the respondent in accordance with its Absence Procedure, and was told that, on her return to work, she would be subject to disciplinary proceedings because of the shoplifting incident. Further meetings were planned, but the claimant wrote that she could not attend until she had had a consultation with a psychologist. Several months went by, and correspondence between the claimant and respondent continued, until the respondent wrote again to invite the claimant to a meeting to discuss her absence. The letter contained the following words:
'the company may be unable to accommodate your continuing absence; that your contract of employment may therefore be terminated'.
The claimant tendered her resignation. The respondent persuaded her to retract her resignation and invited her to another meeting, this letter containing the words:
'at times [the process to help you return to work] has been difficult due to your non-cooperation'.
The claimant took offence at these words and resigned again. Her subsequent grievance was rejected, and she brought proceedings for direct discrimination, harassment, failure to make reasonable adjustments and constructive dismissal. The Tribunal upheld the latter two claims, saying that a reasonable adjustment would have been to have completed the disciplinary procedure in order to determine whether the claimant would be able to return to work following her sickness absence. The comparator they used was someone who was on long term sickness absence but who was not threatened with disciplinary proceedings immediately on their return to work. On the constructive dismissal claim, the Tribunal said that, because of the failure to make the reasonable adjustment described above, the respondent had destroyed or seriously damaged the trust and confidence between them and the claimant.
The EAT first considered the issue of a proper comparator and said that the Tribunal had chosen the wrong one. The comparator should have been a non-disabled person on long term sick absence who was threatened with disciplinary proceedings on their return to work. Applying the correct comparator, the only permissible conclusion for the tribunal was that the claimant was not placed at a substantial disadvantage by the PCP. On the reasonable adjustment issue, the EAT said that the finding by the Tribunal that the respondent should have proposed that disciplinary proceedings take place whilst the claimant was on long term sick leave was simply untenable on the facts of the case. Finally, they found it impossible to understand how the Tribunal could have reached a conclusion that the failure to propose to the claimant that disciplinary proceedings took place during her sickness absence caused the claimant to resign when no such proposal had been made.
Appeal No. UKEAT/0258/10/LA
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 14 December 2010
Judgment handed down on 1 March 2011
HIS HONOUR JUDGE BIRTLES
MR D BLEIMAN
MRS M V McARTHUR BA FCIPD
MARKS AND SPENCER PLC (APPELLANT)
MISS J POWELL (RESPONDENT)
Transcript of Proceedings
For the Appellant
MR THOMAS KIBLING (of Counsel)
Marks & Spencer Plc
Waterside House Mailroom 10.14
35 North Wharf Road
For the Respondent MR JEREMY GEERE (Representative)**SUMMARY**
DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Constructive dismissal
Employment Tribunal (a) found the wrong comparator; (b) found a reasonable adjustment to encourage a disabled employee to return to work was to hold a disciplinary hearing whilst she was on sick leave; (c) found that a failure to do so amounted to constructive dismissal. Appeal allowed on all 3 grounds. The EAT decided that the claims should be dismissed.**HIS HONOUR JUDGE BIRTLES** **Introduction**
- This is an appeal from the judgment of an Employment Tribunal sitting in Birmingham in February 2010. The judgment was sent to the parties on 4 March 2010. The unanimous judgment of the Tribunal was that the Claimant's claims of unfair dismissal and disability discrimination succeeded and the Respondent was ordered to pay her the sum of £11,003.05.
- The Appellant is represented by Mr Thomas Kibling of counsel. The Respondent is represented by Mr Jeremy Geere, who acted as a Citizens Advice Bureau representative for the Claimant in the Tribunal and on a private pro bono basis before us. We are grateful to both advocates for their written and oral submissions.
- In his submission on disposal of the appeal (assuming the appeal to be successful), Mr Kibling referred us toBournemouth University Higher Education Corporation v Buckland  ICR 908. That case was not in the bundle of authorities. We gave permission to Mr Geere to make written submissions on that case by 4.00pm on 21 December 2010 and for Mr Kibling (if he so desired) to make further representations by 4.00pm on 4 January 2011.
- We take the material facts from the judgment of the Tribunal:
The Claimant has Tourette's Syndrome and it was conceded by the Respondent that she is, by consequence of that, a disabled person for the purposes of section 1 DDA. She also suffers from obsessive compulsive disorder which is associated with her Tourette's Syndrome and her condition causes her to be vulnerable to mental stress, anxiety, depression and panic attacks.
4 The Claimant worked for the Respondent from 6 September 1998 for 16 hours per week it being agreed that the effective date of termination of her employment was 17 January 2009. While the Claimant had had a couple of panic attacks while at work, prior to May 2008 it was accepted that she was a good employee having an exemplary disciplinary record. On 7 May 2008 the Claimant was signed off work initially for two weeks although she did not return to work after that date. The reason given for the Claimant being off work was that she was suffering from stress.
5 The Respondent was aware that a matter of days prior to her being signed off work the Claimant had been caught shoplifting in a Debenhams store in the same street in Worcester as the Marks & Spencer store in which the Claimant worked and as a result of that had received a police caution.
6 On 15 May 2008 the Claimant was signed off work for a further four weeks. The reasons given being that she was suffering from anxiety problems, stress and low mood.
7 In accordance with its Absence Procedure, the Respondent wrote to the Claimant requesting that she attend an absence review meeting on 5 June 2008, the date of that meeting subsequently being amended to 4 June, to take place in the training room at the premises at which the Claimant was employed at 39 High Street, Worcester. There is dispute as to what took place immediately prior to that meeting commencing. The clamant says that she went to what she believed to be the training room adjacent to and requiring her to pass through the canteen which caused her embarrassment and distress in that she was seen by people who were in the canteen. The Respondent's evidence was that the room that the Claimant said she went to was not and never had been a training room. The training room was on the other side of the second floor, did not require the Claimant to go into the canteen and that Mr Kirk had gone to meet the Claimant. In the event, the meeting did not take place in the training room, wherever that might have been but because the training room and the room the Claimant said that she went to initially were both occupied, took place in the manager's office which the manager had vacated for that purpose.
8 At the commencement of the meeting reference was made to the Claimant being there alone, Mr Kirk saying 'Just to confirm that you have chosen to come alone', to which the Claimant replied 'Yes, Ella is on a course'. Ella being the person who the Claimant had wished to accompany her at the meeting.
9 Mr Kirk who, initially at least, appeared to the Claimant to be sympathetic towards her condition, asked her how she was to which the Claimant replied that she had taken a turn for the worst with her Tourette's Syndrome, that she also had an obsessive compulsive disorder which is subsidiary to her Tourette's, that she was feeling very on edge as a result of having two miscarriages and trying for a baby, and that being at work at that time with members of the public was too much for her. Mr Kirk said that he needed to inform her that they were aware that she had been cautioned by the police as a result of having been caught shoplifting in Debenhams to which the Claimant replied that she believed that her shoplifting was a result of her condition, that is her having Tourette's Syndrome. Mr Kirk then continued that he needed to make the Claimant aware that as a result of her having been caught shoplifting she would be subject to disciplinary proceedings upon her return to work. Mr Kirk went on to say that would be dealt with 'later' and that the meeting on that day was just to discuss her attendance.
10 In evidence Mr Kirk said that he believed that as a result of those disciplinary proceedings it was likely that the Claimant would have been dismissed for gross misconduct. The Claimant was concerned regarding the outcome of those disciplinary proceedings and those concerns had exacerbated her condition, the link between the shoplifting incident and the Claimant's absence being acknowledged by Mr Kirk in cross-examination.
11 At the conclusion of the meeting it was agreed that a further meeting should be held on 16 June. On 12 June Claimant's doctor wrote to Mr Kirk saying that in his opinion the Claimant was unfit to attend that meeting and would be unfit to attend any similar meetings for the foreseeable future due to her present symptoms of 'severe mental stress', adding that the meeting would be particularly difficult for her as she was not allowed to have a friend or relative to accompany her. The letter continued that the Claimant was currently waiting to see a psychologist but the waiting list for the appointment may be anything up to two months and in his opinion it was likely that the Claimant would be unable to participate in a constructive way with any hearing or meeting until her treatment with the psychologist had commenced. The letter concludes by saying that if the Respondent required any further information regarding the Claimant's medical condition they would be happy to provide that information on receipt of their request and the Claimant's written consent.
12 On 18 June the Respondent wrote to the Claimant again saying that it was noted that, in accordance with the letter from her doctor, she would be unable to attend the meeting on 16 June but that she was required, in accordance with her contract, to maintain contact with her employer and inviting her to a meeting 'in the near future' to help support the Claimant in relation to her return to work, it being said that at that meeting, in addition to her being able to be accompanied by a work colleague, 'BIG' (Business interest Group) or trade union representative, the Claimant would be allowed to be accompanied by a friend or relative, and that meeting would take place on 24 June in the training room at the Worcester store although with the Claimant being given the option that the meeting could take place at a different location. The Claimant was though going to be on holiday on the 24 June and wrote to Mr Kirk advising him of that, saying that she would he in touch with him again on her return on 30 June.
13 On 2 July the Claimant wrote to Mr Kirk advising him that she was unable to attend an absence meeting at that time as the letter from her doctor had stated that she needed to see her psychologist before such a meeting could take place.
14 On 22 July Mr Kirk wrote to the Claimant saying that he understood that her doctor felt that she was unable to attend any form of absence meeting until she had seen a psychologist. The letter continued by saying that one of the reasons for the meeting was to arrange an occupational health referral so that they could gain a greater understanding of her current health condition and establish any further support or adjustments needed to support that condition and requested the Claimant's consent to refer her to occupational health, to which the Claimant consented by her letter of 5 August.
15 Mr Kirk then completed an occupational health referral form in which he said that the Claimant was not attending work at present, that she had attended one meeting about her absence but had since been 'unwilling' to attend further meetings. The form also indicates that occupational health were informed that the Claimant had been off work with stress since she had been arrested for shoplifting, reiterating the link between that incident and the Claimant being away from work.
16 The occupational health service record sheet records a conversation with Mr Kirk in which he informed occupational health that the Claimant had been a good employee for 10 years but more recently 'has been disciplined for shoplifting in Debenhams' for which she had been cautioned not arrested 'as originally thought'. The reference to the Claimant having been disciplined is incorrect as at that stage no disciplinary action had been taken.
17 A telephone conversation then took place between the Claimant and occupational health (that apparently being the way in which the Respondent deals with such matters), the notes recording that the Claimant had been off work since May 2008 and at that time there seemed 'no likelihood' of a return because of the stress that she was under and that that she needed the psychology appointment to take place before she would be able to contemplate any return to work. The report which was then sent by occupational health to Mr Kirk stated that the Claimant was 'currently unfit for work' and that it was difficult to determine a return date at that stage. In particular the report states that 'in this case managerial judgment, discretion and support would be invaluable in her recovery and subsequent return to work'.
18 Following that report having been received Mr Kirk wrote to the Claimant on 20 August 2008 thanking her for her cooperation in regards to her recent occupational health referral, there being no suggestion that the Claimant was being other than cooperative. The letter went an to request that the Claimant advise Mr Kirk of the date of her specialist's appointment so that he could arrange a meeting afterwards to discuss the Claimant's current health and a possible return to work date.
19 On 1 September a further sick note was provided to the Respondent for a period of one month, the reason stated being 'Tourette's Syndrome and mental stress', the sick note also noting that the Claimant was awaiting an appointment with a psychologist. Notwithstanding that sick note having been delivered, on 6 September Mr Kirk wrote to the Claimant saying that he was 'very concerned' at not having heard from her in reply to his letter of 20 August and that in accordance with the terms of her contract and the company's Sickness Absence she was required to keep in regular contact so that they 'could work together towards a solution'. In response the Claimant wrote to Mr Kirk on 12 September stating that she had still not had her appointment with the psychologist but had seen a specialist at the Tourette's clinic who was looking to change her medication, that she would continue to have further appointments at the clinic and would update Mr Kirk as soon as she had more information. From additional documents that were supplied to us by the Claimant at a very late stage in the course of these proceedings we know that the Claimant's letter of 12 September was not a complete disclosure by her of the situation at that time as, while she was correct in saying that she had not had her appointment with the psychologist on 12 September, she had been advised by letter dated 2 September that that appointment would take place on 15 September. However, as has been indicated, neither the Respondent nor Mr Kirk were aware of the Claimant's failure to disclose the appointment with her psychologist until a very late stage in the course of these proceedings.
20 In response on 30 September Mr Kirk wrote to the Claimant with a questionnaire the idea of which was, he said, to give him an insight into the Claimant's current state or health and prognosis as well as understanding if there was any further support or guidance the Respondent could offer the Claimant to help with her current state of health. With that letter Mr Kirk also enclosed information relating to the Respondent's confidential counselling service.
21 The Claimant replied to the questionnaire on 29 October. In response to the question of whether there was anything the Respondent could do to assist her in her return to work, the Claimant said that 'It would help immensely if I could return to work without the fear of a disciplinary hearing'.
22 Mr Kirk did not respond to this but instead on 27 November invited the Claimant to another meeting 'to discuss concerns regarding your sickness absence record and current state of health, your possible return to work and any support required to achieve this'. The letter went on to say that 'the company may be unable to accommodate your continuing absence; that your contract of employment may therefore be terminated' although the company was keen to work with her to avoid this situation and would like to discuss this during the meeting.
23 The Claimant's response to being invited to that meeting was to resign by her letter of on 8 December stating that there was 'a constant threat of the company being unable to accommodate your continuing absence, that your contract of employment may therefore be terminated', as a result of which she had no alternative other than to resign. Mr Kirk replied to that saying that he had been sorry to receive the Claimant's resignation and that 'throughout the course of these letters I have been keen to meet with you regarding your current state of health and ways in which we could support your return to work' but that the Claimant had 'been unable to meet with me on any of the suggested occasions'.
24 On 20 December the Claimant wrote to Mr Kirk saying that she was prepared to have a meeting with him to discuss the situation to which Mr Kirk responded on 23 December saying that it was proposed that the meeting should take place on 12 January in the Guild Hall Tea Room, Worcester. The letter stated that the purpose of the meeting would be to discuss 'Concerns regarding your sickness absence and current state of health, your possible return to work and support required to achieve this and your concerns regarding your employment that led you to tender your resignation' which at that point was in abeyance. The letter went on to remind her that the aim of the process was to help her return to work and to fulfil her commitment to the Respondent which Mr Kirk said he had tried to achieve for her but that 'at times this has been difficult due to your non-cooperation'.
25 As a result of the letter alleging her 'non-cooperation', the Claimant wrote to the Respondent on 4 January 2009 saying that while she had been prepared to attend a meeting with Mr Kirk, she felt that comment to be unfair as a result of which she confirmed her resignation.
26 On 26 February the Claimant sent a grievance letter to the Respondent setting out the matters which she said had caused her to resign, namely threats of disciplinary action and possible dismissal due to absence caused by her ongoing illness; threats of disciplinary action hanging over her on return to work relating to a 'past incident' involving the police which was not related to her employment with the Respondent and was due solely to her Tourette's condition and 'unfounded comment' in correspondence regarding alleged non-cooperation in the process of returning to work.
27 An investigation was then undertaken into the Claimant's grievance by Mr Ling, the grievance being dealt with under the modified procedure. As part of that investigation Mr Ling had a meeting with Mr Kirk at which he was asked what he had meant by 'non-co-operation' in his letter of 23 December. Mr Kirk response was that was due to the fact that the Claimant had only attended one meeting and had 'refused' to attend all future meetings. Mr Kirk was also asked whether the Claimant had at any time asked to be allowed to return to work without the risk of facing disciplinary dismissal to which Mr Kirk replied 'No'. Mr Ling had then concluded that he was unable to uphold any of the Claimant's grievances, that decision being communicated to the Claimant in his letter of 2 April 2009."**The Employment Tribunal judgment**
- After setting its factual findings, the Tribunal set out the relevant law at paragraphs 28-40 of its judgment.
- The Tribunal then made its findings at paragraphs 41-58 of its judgment. Much of the findings sections is discursive and does not appear to us to have any relevance to the actual decision made by the Tribunal.
- The Tribunal dismissed (a) the Claimant's claim for direct discrimination under section 3A(1) of the Disability Discrimination Act 1995 as amended and (b) the Claimant's claim for harassment under section 3B(1) of the 1995 Act: see the judgment at paragraph 52. There is no extant cross-appeal against those conclusions.
- The Tribunal then went on to conclude (a) that the Respondent had failed to make reasonable adjustments under section 4A of the 1995 Act and (b) that the Respondent had constructively dismissed the Claimant.
- Its reasoning on reasonable adjustments is set out at paragraph 53 of its judgment. The Tribunal said this:
"53 Turning to the question of whether the Respondent failed to make reasonable adjustments we had regard to the three-stage test set out in Environment Agency v Rowan  ICR 218. We find that the provision, criterion or practice applied by or on behalf of the Respondent was that the Claimant should return to work prior to any disciplinary proceedings being taken against her. In relation to the identity of non-disabled comparators, the correct comparator in our view is a person who is on long-term sickness absence but who was not threatened with disciplinary proceedings immediately on their return to work. In relation to the nature and extent of the substantial disadvantage suffered by the Claimant, we find that as a result of the Respondent's insistence that the absence procedure should be completed and the Claimant returned to work before the disciplinary proceedings could take place, the Claimant was in fact prevented from being able to return to work, the adjustment required being that the Respondent should have proposed that the disciplinary proceedings take place in order to determine whether the Claimant would be able to return to work following her sickness absence. As a result of those proceedings the Claimant may have been dismissed. Alternatively a different conclusion reached in which case it is likely that the Claimant would have been able to return to work after a relatively short period. What this case demonstrates is that companies should not always slavishly follow procedure, ticking all the boxes. Sometimes, as was suggested in this case by Occupational Health, it is necessary to think outside the box."
- The Tribunal's reasoning on constructive dismissal is set out at paragraph 54 of its judgment. The Tribunal said this:
"54 In relation to the Claimant's claim of constructive unfair dismissal, we find that by failing to make a reasonable adjustment in order to facilitate the matter being resolved, the Respondent acted in a way so as to destroy or seriously damage the relationship of trust and confidence between employer and employee entitling the Claimant to resign in response, as she did. The Claimant's claim of constructive unfair dismissal therefore succeeds."
- The Tribunal then went on to consider a Polkey reduction (Polkey v A E Dayton Services Ltd. It decided not to make any reduction for the reasons set out in paragraphs 55-56 of its judgment. The Tribunal said this:
"55 We then asked ourselves what would have happened if a disciplinary hearing had been held. The Respondent's case was that having regard to the Claimant having received a police caution for shoplifting, that the Claimant accepted that she had done this regularly and the terms of its disciplinary policy, it was inevitable that the Claimant would have been dismissed with the result that the Claimant had not suffered any loss for which she is entitled to be compensated.
56 Again, we disagree. Contrary to any impression our findings may give, we believe that the Respondent is a very fair, reasonable and responsible employer. If the Claimant had been given her disciplinary hearing she would have had the opportunity to explain that her shoplifting was a consequence of her Tourette's, that having been accepted by police. She would have been able to say that she had received therapy. As a result she had been made aware of the causes of her shoplifting and had taken steps to ensure that it does not recur. As a reasonable employer, and having regard to the Claimant's length of service, we believe that the Respondent would not have dismissed the Claimant but would instead have given her a final written warning. On this basis there should be no percentage reduction in the amount of the award to which the Claimant is entitled to take account of the percentage risk of her being dismissed."**The Notice of Appeal**
- The Notice of Appeal is at EAT Bundle, pages 16-22. We take each ground of appeal separately.
- At paragraph 53 of its judgment, the Tribunal determined that the provision, criterion or practice (PCP) " … was that the Claimant should return to work prior to any disciplinary proceedings being taken against her." The Tribunal held that it was the Respondent's failure to engage its disciplinary procedure, which constituted the PCP and not the operation of that policy. That finding would appear to come from the remark by Mr Kirk on 4 June 2008 that the Claimant faced disciplinary action on her return and not on any other conceded, established or proven PCP.
- In our judgment the proper comparator is readily identified by reference to the disadvantage caused by the relevant arrangements. The relevant arrangement was the suspension of all work-related issues including disciplinary action whilst the Claimant was absent due to sickness. In paragraph 53 of the judgment, the Tribunal identify the non-disabled comparator as:
"A person who is on long-term sickness absence but who was not threatened with disciplinary proceedings immediately on their return to work."
In our judgment, this is not the proper comparator. Given the identified PCP, the comparator must be a non-disabled person on long-term sickness absence who was threatened with disciplinary proceedings on their return to work. Applying that correct comparator, the only permissible conclusion for the Tribunal was that the Claimant was not placed at a substantial disadvantage by the PCP.Issue 2: Impermissible disadvantage
- Mr Kibling submits that the Tribunal identified an impermissible disadvantage on the evidence before it as it was never the view of the medical practitioners that the Claimant could not return to work until the disciplinary process was at an end. It was necessary for her to attend an appointment with a psychologist before she could consider returning to work; and the first appointment was on 15 September 2008, some ten weeks before her resignation.
- At paragraph 53 of the judgment, the Tribunal said this:
"53 In relation to the nature and extent of the substantial disadvantage suffered by the Claimant, we find that as a result of the Respondent's insistence that the absence procedure should be completed and the Claimant returned to work before the disciplinary proceedings could take place, the Claimant was in fact prevented from being able to return to work … ."
In our judgment this statement was based on the misconceived assertion that until the disciplinary action was concluded, the Claimant would be unable to return to work. This was not the Claimant's case nor was it supported by the medical evidence, despite purporting to follow Environment Agency v Rowan and in particular the guidance given by HHJ Serota QC at paragraphs 55-56.Issue 3: Reasonable adjustment
- At paragraph 53 of its judgment, the Tribunal said that the only reasonable adjustment required in this case was:
"53 … that the Respondent should have proposed that the disciplinary proceedings take place in order to determine whether the Claimant would be able to return to work following her sickness absence. As a result of those proceedings the Claimant may have been dismissed. Alternatively a different conclusion reached in which case it is likely that the Claimant would have been able to return to work after a relatively short period."
- Mr Kibling submits that the Tribunal is here effectively stating that because there was a real risk of dismissal, the Respondent was required to commence the disciplinary process, whilst the Claimant was off sick. We note that there is no provision for this in the Respondent's documents produced at the Tribunal which are Managing Underlying Ill Health – Appendix 1: EAT bundle pages 62-65 or in the extracts from the Appellant's Employment Handbook: EAT bundle pages 66-70. Second, there is nothing in the evidence which suggests that the Claimant would have agreed to such a proposal. The evidence recorded by the Tribunal particularly at paragraphs 11; 13; 17-21; 23-26 suggest only one possible response by the Claimant to the proposal that the disciplinary proceedings take place in order to determine whether the Claimant be able to return to work following her sickness absence while she was on sickness absence would have been a refusal by the Claimant to participate and indeed almost certainly her resignation. Finally, on a more general note, it is the experience of all three members of this Tribunal that an employer who commenced disciplinary proceedings against all the available medical advice would be far more open to criticism than an employer who held off from commencing proceedings in accordance with such advice. It simply runs contrary to our collective experience. In our judgment, the finding by the Tribunal that the Respondent should have proposed that disciplinary proceedings take place whilst she was on long-term sick leave is simply untenable on the facts of this case. There is simply no factual material on which the Tribunal could find that this was a required reasonable adjustment.
- We have set out the Tribunal's conclusions on the issue of constructive unfair dismissal in paragraph 54 of its judgment above. We do not propose to set out the wording of paragraph 54 again but it is important to note that the paragraph contains a logical inconsistency. The Tribunal conclude that the Claimant resigned because of the Appellant's failure to make the reasonable adjustment which they identified as being the required one. That conflicts with the Tribunal's findings as to (a) the Claimant's resignation by her letter of 8 December 2008 and (b) her confirmation of that resignation by her letter of 4 January 2009.
- The resignation by letter of 8 December 2008 was, the Tribunal found:
" … that there was 'a constant threat of the company being unable to accommodate your continuing absence, that your contract of employment may therefore by terminated', a result of which she had no alternative other than to resign."
That itself was triggered by an invitation to a meeting by Mr Kirk in his letter of 27 November 2008 which is set out in paragraph 22 of the judgment.
- Furthermore, the confirmation of the resignation by the Claimant in her letter of 4 January 2009 was as a result of a remark made by Mr Kirk in a letter dated 23 December 2008 referring to the Claimant's "non-cooperation": judgment paragraph 24.
- It is therefore impossible to understand how the Tribunal could have reached a conclusion that the failure to propose to the Claimant that disciplinary proceedings took place during her sickness absence caused the Claimant to resign when no such proposal was made to her. In other words there is no causal connection between the failure to make the reasonable adjustment and the Claimant's reasons for resignation.
- Mr Kibling argues the same point in a slightly different way. His submission is that the Tribunal by its repeated references to the unreasonable conduct of the Respondent (a relevant ingredient of the reasonable adjustment issue) indicates that the wrong test was being applied, namely a "reasonableness" test and not a "contract" test. We agree.
- Because we have found the Tribunal has made the above errors of law we do not find it necessary to discuss the issue of compensation.
- The test for perversity is well known. It does not bear repeating yet again in another judgment of this Tribunal. The hurdle is a high one to surmount. In our judgment for the reasons we have already given it is not necessary to decide the issue of perversity in this case.
- We have effectively found that the Tribunal was completely wrong in its findings of (a) the correct comparator (which we have identified); (b) that the sole reasonable adjustment suggested by the Tribunal had no basis in the evidence; and (c) that the finding of constructive dismissal is fatally flawed.
- Mr Kibling referred us to Bournemouth University Higher Education Corporation v Buckland and in particular the comments made by Jacob LJ at paragraphs 57-58. No more evidence was required and it was therefore an error to send a case back to the Tribunal. Carnwath LJ at paragraph 50 agreed. In this case, the Tribunal found all the material facts. It made serious errors of law both in respect of disability discrimination and constructive dismissal. Those were errors of law which came from the facts it found. There are no further facts to be found in this case and in our judgment we are in as good a position as the Tribunal to decide this case on the facts as found by the Tribunal.
- Given the errors of law we have identified it is quite clear that this appeal must be allowed. There is no merit to sending it back to the same Tribunal or to a fresh Tribunal to re-hear the case. We are in position to substitute our decision for that of the Tribunal.
- Our conclusions are that (a) applying the correct comparator which we have identified in this judgment, i.e. a non-disabled person on long-term sick absence who was threatened with disciplinary proceedings on their return to work; (b) that there was no substantial disadvantage compared to such a comparator by the PCP; and (c) that there was no breach of the implied term of trust and confidence which (i) caused the Claimant to resign and (ii) would enable her to successfully bring a claim for constructive unfair dismissal.
- For these reasons we allow the appeal and dismiss the claim.
Published: 02/03/2011 15:22