Nottinghamshire County Council v Meikle

Factual and Procedural Background

The Appellant, Company A, employed the Appellee as a teacher from 1982, with full-time employment commencing in 1990. The Appellee developed a deteriorating visual impairment starting in 1993, resulting in significant difficulties in reading and requiring enlarged printed materials. Despite repeated requests, the Appellant failed to provide reasonable adjustments including enlarged documents and timetable alterations to accommodate the Appellee's disability. The Appellee experienced multiple absences due to eye-strain, culminating in suspension in September 1999 under an outdated policy, and was later placed on half-pay after 100 days of absence according to Company A's policy. The Appellee resigned in May 2000, citing breach of mutual trust and confidence and disability discrimination, and subsequently brought claims of disability discrimination and constructive dismissal. The Employment Tribunal found several instances of unlawful discrimination but dismissed claims of constructive dismissal and discrimination related to the reduction in sick pay. The Employment Appeal Tribunal reversed the Tribunal’s findings on these latter issues. The Appellant now appeals the EAT’s decision.

Legal Issues Presented

1. Whether the Appellee was constructively dismissed by the Appellant.
2. Whether constructive dismissal constitutes a "dismissal" under section 4(2)(d) of the Disability Discrimination Act 1995 (DDA).
3. Whether the reduction of the Appellee’s sick pay after 100 days’ absence amounted to discrimination under the DDA.

Arguments of the Parties

Appellee's Arguments

• The Appellant’s failure to make reasonable adjustments and the unjustified suspension amounted to fundamental breaches of contract, justifying constructive dismissal.
• Constructive dismissal should be considered a "dismissal" under the DDA, making it a discriminatory act.
• The reduction of sick pay was discriminatory both as a failure to comply with the duty to make reasonable adjustments (section 6) and as less favourable treatment (section 5(1)) related to disability, unjustified by the Appellant.

Appellant's Arguments

• The Appellee did not resign in response to a fundamental breach of contract by the Appellant but rather due to conditions she or her solicitors imposed, which did not constitute breach.
• Constructive dismissal does not fall within the meaning of "dismissal" in the DDA, supported by legislative history and statutory interpretation.
• The reduction of sick pay was justified under Company A’s policy for absences over 100 days and fell within an exclusion from the duty to make reasonable adjustments under section 6(11) of the DDA.
• Any timing issues regarding the bringing of claims are resolved by considering the repudiatory acts as "any other detriment," making a purposive construction unnecessary.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed analysis of the facts and legal principles relating to constructive dismissal, discrimination under the DDA, and the reduction of sick pay. It rejected the Employment Tribunal’s subjective test for breach of the implied term of trust and confidence, endorsing the objective test from Malik and Mahmud. The court found that the Appellant was in fundamental breach of contract due to its failure to implement reasonable adjustments and the unjustified suspension, which cumulatively destroyed the trust and confidence required in the employment relationship.

The court interpreted the Appellant’s failure to agree to reasonable adjustments, including enlargement of materials and additional non-contact time, as breaches sufficient to justify the Appellee’s resignation as constructive dismissal. It also held that the breakdown in the relationship with the Head Teacher, for whom the Appellant was vicariously liable, contributed to the breach.

Regarding the meaning of "dismissal" under the DDA, the court preferred the EAT’s reasoning in Catherall over the contrary decision in Harley, concluding that constructive dismissal does amount to a dismissal for the purposes of section 4(2)(d). The court reasoned that the substance of the employment termination should prevail over form, and legislative history did not mandate a narrow interpretation excluding constructive dismissal.

On the sick pay issue, the court examined the exclusion under section 6(11) of the DDA and concluded that contractual sick pay payments do not fall within the exclusion for occupational pension schemes or insurance arrangements. Therefore, the employer’s duty to make reasonable adjustments applied. The court found that the Appellant failed to justify the reduction in sick pay under section 5(1) because it had also failed to comply with its section 6 duty. The tribunal’s failure to apply section 5(5) properly was a significant error.

The court dismissed the Appellant’s arguments that the tribunal’s findings should be upheld or that the case should be remitted, finding the EAT’s conclusions legally sound and factually supported.

Holding and Implications

The court DISMISSED the appeal and upheld the Employment Appeal Tribunal’s decision.

The holding confirms that an employee’s resignation in response to an employer’s fundamental breaches of contract, including failure to make reasonable adjustments for disability, constitutes constructive dismissal. Furthermore, constructive dismissal qualifies as a "dismissal" under the Disability Discrimination Act 1995, making it a discriminatory act if related to disability. The decision also clarifies that contractual sick pay is subject to the employer’s duty to make reasonable adjustments and that unjustified reduction of such pay can amount to unlawful discrimination.

This ruling reinforces the employer’s obligations under the DDA and the Employment Rights Act, emphasizing the objective nature of breaches of trust and confidence and the broad interpretation of dismissal in discrimination law. No new precedent beyond the application of existing principles was established, but the decision provides authoritative guidance on these issues.