Factual and Procedural Background
This appeal arises from a decision of the Employment Tribunal at Cardiff concerning a Claimant employed part-time as a clerk/typist by the Respondent. The Claimant suffered a workplace injury in 1993, resulting in deteriorating health and long-term sickness absence from 2003. After relocating her residence, the Claimant sought to work from home due to her disability, but the Respondent refused this request. Recorded telephone conversations between an occupational health physician and the Claimant’s line manager suggested the Claimant did not wish to return to work, causing distress to the Claimant. The Respondent initiated capability procedures in late 2005, and the Claimant lodged a grievance regarding the recorded calls. Following an unsatisfactory grievance outcome, the Claimant resigned in January 2006, claiming constructive dismissal and disability discrimination.
The Employment Tribunal found that the grievance procedures had been complied with, the Claimant had been unfairly dismissed constructively, and the Respondent had discriminated against the Claimant on grounds of disability by failing to make reasonable adjustments, particularly by refusing home-working arrangements. The appeal was referred to a full hearing on 5 January 2007.
Legal Issues Presented
- Whether the Employment Tribunal adequately identified and explained the nature and extent of the substantial disadvantage suffered by the Claimant due to the Respondent's requirement to work in an office environment.
- Whether the Employment Tribunal properly applied the statutory duty to make reasonable adjustments under the Disability Discrimination Act 1995 and related amendments.
- Whether the Employment Tribunal provided sufficient reasons and findings of fact to support its conclusions on disability discrimination.
- Whether the Employment Tribunal correctly found that the recorded telephone conversations constituted a repudiatory breach of the implied term of trust and confidence, amounting to constructive unfair dismissal.
- Whether the Claimant affirmed the contract of employment by participation in the grievance procedure prior to resignation.
- Whether the refusal of home-working was relevant to the dismissal and whether the dismissal was unfair within the meaning of the Employment Rights Act 1996.
Arguments of the Parties
Respondent's Arguments
- The Employment Tribunal failed to give adequate reasons and explanations for its findings on disability discrimination, particularly regarding the identification of the provision, criterion or practice (pcp) disadvantaging the Claimant.
- The Tribunal made no findings on the nature and extent of the Claimant’s substantial disadvantage or how the proposed adjustments would alleviate it.
- The Tribunal failed to analyze the Claimant’s duties and the impact of the office environment versus the journey from her new home.
- The Tribunal ignored evidence that the Claimant’s difficulties were caused by the commute rather than the office environment.
- The Tribunal did not properly consider the practicality and reasonableness of home-working, including logistical and financial implications.
- The Tribunal conflated less favourable treatment with failure to make reasonable adjustments and improperly placed the burden of proof on the Respondent.
- Regarding unfair dismissal, the Tribunal failed to address whether the grievance procedure amounted to affirmation of the contract and did not consider all reasons for resignation.
Claimant's Arguments
- The Employment Tribunal made sufficient findings supported by medical evidence, complying with legal standards for reasons (Meek compliance).
- The Tribunal was entitled to infer that a trial period of home-working was a reasonable adjustment likely to succeed.
- The Tribunal rejected the suggestion that the commute was the cause of difficulties rather than the office environment.
- The Claimant’s change in home-working requests was acknowledged, with job sharing proposed to accommodate duties not possible at home.
- The Tribunal correctly applied the burden of proof, placing the duty on the Respondent to make reasonable adjustments.
- The recorded telephone conversations constituted a repudiatory breach of trust and confidence, justifying constructive dismissal.
- The Claimant did not affirm the contract by pursuing the grievance procedure and resigned within a reasonable time.
- It was accepted that unlawful disability discrimination causing dismissal would be highly likely to be unfair dismissal.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Clark v Novacold [1999] IRLR 318 |
Definition and application of disability discrimination, particularly less favourable treatment and reasonable adjustments under the Disability Discrimination Act. |
The Employment Tribunal relied on this authority to find disability-related less favourable treatment and failure to make reasonable adjustments. |
| Archibald v Fife Council [2004] IRLR 651 |
Principles regarding reasonable adjustments and discrimination arising from disability. |
Referred to in assessing the Respondent’s duty and failure to make reasonable adjustments. |
| Hendricks v Metropolitan Police Commissioner [2003] ICR 867 |
Consideration of "acts extending over a period" for time limits in discrimination claims. |
Law acknowledged but not challenged on appeal; relevant to time extension issues. |
| London Borough of Barnet v Ferguson UKEAT/0220/06/DA |
Schematic approach for Employment Tribunals to assess failure to make reasonable adjustments. |
Used to evaluate whether the Employment Tribunal properly identified key elements of the discrimination claim. |
| Smiths Detection Watford v Berriman UKEAT/0712/04 and UKEAT/0144/05 |
Guidance on assessing reasonable adjustments under the Disability Discrimination Act. |
Endorsed as part of the schematic approach for tribunals. |
| Meek v City of Birmingham District Council [1987] IRLR 250 |
Requirement for Employment Tribunals to provide adequate reasons explaining factual and legal conclusions. |
Applied to assess whether the Employment Tribunal’s reasons were sufficient to allow appellate review. |
| English v Emery Reimbold & Strick Ltd [2003] IRLR 710 |
Standards for appellate courts to understand the basis of tribunal decisions, including identification and explanation of critical issues. |
Referenced to evaluate adequacy of tribunal’s reasoning and findings. |
| Cox Toner v Crook [1981] IRLR 443 |
Principles of repudiatory breach and affirmation of contract in employment law. |
Applied to determine whether the Claimant affirmed the contract by participating in grievance procedures before resigning. |
| British Sugar Plc v Kirker [1998] IRLR 624 |
Unlawful disability discrimination causing dismissal is highly likely to be unfair dismissal. |
Accepted to support the Employment Tribunal’s conclusion on unfair dismissal. |
| Sinclair Roche & Temperley v Heard [2004] IRLR 763 |
Guidance on remitting cases for rehearing before a differently constituted tribunal. |
Applied in deciding to remit the case for rehearing. |
| Marriott v Oxford Co-operative Society [1970] 1 QB 196 |
Clarification on affirmation of contract despite continued work and pay, provided employee objects to breach. |
Used to support the finding that the Claimant did not affirm the contract by continuing to work post-breach. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the Employment Tribunal’s findings on disability discrimination, focusing on the statutory framework under the Disability Discrimination Act 1995 and its amendments. It emphasized the necessity for tribunals to identify four critical elements: the provision, criterion or practice (pcp) or physical feature disadvantaging the disabled person; the identity of relevant comparators; and the nature and extent of the substantial disadvantage suffered.
The court found that the Employment Tribunal had failed to adequately identify and explain the nature and extent of the Claimant’s substantial disadvantage caused by the office working requirement. The Tribunal did not sufficiently analyze the Claimant’s duties or how home-working would alleviate the disadvantage. The conflicting evidence regarding whether the difficulties arose from the office environment or the long commute was not addressed. There was no explanation why home-working was a reasonable adjustment despite logistical challenges raised by the Respondent.
The court also expressed doubts about whether a trial period of home-working, as found by the Tribunal, constituted a reasonable adjustment in itself, noting that such a trial is more properly a procedural step rather than an adjustment under the legislation.
Regarding unfair dismissal, the court accepted the Tribunal’s finding that the recorded telephone conversations constituted a repudiatory breach of the implied term of trust and confidence. It upheld the Tribunal’s conclusion that the Claimant did not affirm the contract by participating in the grievance procedure and resigned within a reasonable time. The Tribunal was entitled to find the dismissal unfair, particularly given the link between the dismissal and unlawful disability discrimination.
Holding and Implications
The court’s final decision was to allow the appeal on the issue of disability discrimination but dismiss the appeal on unfair dismissal. Specifically, the court held that the Employment Tribunal’s decision on disability discrimination was flawed due to insufficient findings and reasoning regarding the substantial disadvantage and reasonable adjustments, necessitating a rehearing.
The appeal is ALLOWED in relation to disability discrimination and DISMISSED in relation to unfair dismissal.
The case is remitted for rehearing before a differently constituted Employment Tribunal. The decision does not establish new precedent but clarifies the importance of detailed findings and reasoning in disability discrimination cases, particularly concerning the identification of substantial disadvantage and the reasonableness of adjustments. The direct effect is that the disability discrimination claim requires reconsideration, while the unfair dismissal finding remains intact.