Factual and Procedural Background
This opinion concerns consolidated claims brought by two claimants against two respondents before the Industrial Tribunals in Northern Ireland. The claimants initially presented claims between November 2016 and May 2017 relating to unlawful deduction of wages, breach of contract, age discrimination, sex discrimination, disability discrimination, and unfair constructive dismissal. Some claims were withdrawn during the course of the substantive hearing following settlement or withdrawal by the claimants.
The claimants were employed by the first respondent as home based workers, with contracts that specified working from home and included flexibility and mobility clauses. The respondents sought to change the claimants' status from home based to office based at a regional office in Belfast, which the claimants opposed, citing personal security concerns and contractual terms.
The dispute escalated following a meeting on 5 August 2016 where the respondents informed the claimants of the requirement to move to office based work within a short timeframe. The claimants raised grievances which were investigated but not upheld, and both claimants resigned in October 2016, claiming constructive dismissal. The claimants also raised claims under the Disability Discrimination Act 1995, alleging failure to make reasonable adjustments.
The tribunal heard extensive evidence including witness testimony and medical reports, and considered legal submissions before reaching its decision.
Legal Issues Presented
- Whether the second claimant was a disabled person at the material time pursuant to the Disability Discrimination Act 1995, as amended.
- If so, whether the second claimant was directly discriminated against by the respondents pursuant to the Disability Discrimination Act 1995, as amended.
- Whether the first respondent failed in its duty to make reasonable adjustments for the second claimant pursuant to the Disability Discrimination Act 1995, as amended.
- Whether the claimants were unfairly constructively dismissed by the first respondent.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Western Excavating v Sharp [1978] QB 761 |
Test for constructive dismissal; breach of contract must be repudiatory. |
Applied to determine whether the claimants were constructively dismissed due to breach of contract. |
| Malik v Bank of Credit & Commerce International SA [1997] UKHL 23 |
Implied term of trust and confidence in employment contracts. |
Applied to assess whether the respondents' conduct destroyed trust and confidence, justifying constructive dismissal. |
| Igen v Wong [2005] IRLR 258 |
Burden of proof in discrimination claims; two-stage process. |
Used to guide analysis of disability discrimination claims and burden of proof shifting. |
| Madarassy v Nomura International Plc [2007] IRLR 246 |
Clarification on burden of proof and evidence in discrimination claims. |
Referenced to explain evidential requirements and burden shifting. |
| Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 147 |
Test for discrimination and less favourable treatment. |
Applied to assess whether less favourable treatment was due to a protected characteristic. |
| Arnold v Britton [2015] AC 1619 |
Principles of contractual interpretation emphasizing primacy of language. |
Applied in interpreting the employment contracts regarding place of work and mobility clauses. |
| Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28 |
Contractual interpretation; objective approach considering background knowledge. |
Guided the tribunal's approach to interpreting contractual terms in the employment contracts. |
| Polkey v AE Dayton Services Ltd [1987] IRLR 50 |
Polkey deduction in unfair dismissal compensation. |
Applied to assess potential reduction in compensation based on predictive assessment of fair dismissal. |
| De Souza v Vinci Construction Ltd [2017] EWCA Civ 879 |
Adjustment of injury to feelings awards and Vento bands. |
Referenced in awarding injury to feelings compensation. |
| Donelien v Liberata UK Ltd [2018] EWCA Civ 219 |
Constructive knowledge of disability and duty to make reasonable adjustments. |
Applied in assessing whether the employer had knowledge of the claimant's disability. |
| CLFIS (UK) Ltd v Reynolds [2017] IRLR 246 |
Liability for discriminatory acts by employees motivated by protected characteristics. |
Considered in relation to whether individual acts by employees were motivated by disability. |
| Wright v North Ayrshire Council [2014] UKEAT/0197/14 |
Constructive dismissal; multiple causes and causation test. |
Applied to determine if breach played a part in resignation even if not sole cause. |
| Hadji v St Luke's Plymouth [2013] UKEAT/0095/02 |
Affirmation of contract and delay in resignation after breach. |
Considered in relation to whether claimants affirmed contract prior to resignation. |
| Firth Accountants Ltd v Law [2016] UKEAT/0108 |
Contributory fault and reduction of awards. |
Referenced in considering contributory conduct and appropriate reduction of awards. |
| Pan v Portigon AG London Branch [2013] UKEAT/0116 |
Last straw doctrine in constructive dismissal. |
Considered in relation to cumulative breaches leading to resignation. |
| Lochuack v London Borough of Sutton [2014] UKEAT/0197/14 |
Concurrent causes in constructive dismissal. |
Applied to confirm multiple factors can contribute to resignation. |
| Software 2000 Ltd v Andrews [2007] UKEAT/0533/06 |
Assessment of Polkey deduction. |
Guided tribunal in assessing compensation reductions. |
| Hill v Governing Body of Great Tey Primary School [UKEAT/0237/12/SM] |
Polkey deduction as an assessment of chance rather than probability. |
Applied to compensation assessment methodology. |
| Mark Noble v Martin Raymond Owens [2008] EWHC 359 (QB) |
Relevance of symptoms over diagnostic labels in psychiatric evidence. |
Considered in evaluating medical evidence of claimant's mental health. |
| Park Cakes Ltd v Shamba and Others [2013] EWCA Civ 974 |
Implied terms and custom and practice in employment contracts. |
Applied to assess claimants' reliance on custom and practice to interpret contract terms. |
| GilIen J in Thornton v NIHE [2010] NIQB 4 |
Assessment of witness credibility and reliability. |
Guided tribunal's evaluation of witness evidence. |
| London Borough of Hackney v Sivanandan [2013] EWCA Civ 22 |
Joint and several liability in discrimination claims. |
Referenced in relation to awarding compensation against multiple respondents. |
Court's Reasoning and Analysis
The tribunal undertook a detailed factual and legal analysis focusing on the claims of the second claimant under the Disability Discrimination Act 1995 and the claims of unfair constructive dismissal by both claimants.
Regarding disability, the tribunal found that the second claimant suffered from a mental impairment (depression with features of PTSD) that had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities as of 5 August 2016. However, it was established that the respondents did not have knowledge of this disability at the relevant time, and the claimant objected to the change of work location on security grounds rather than disability. Consequently, no direct disability discrimination was found.
Following receipt of medical reports in October 2016, the respondents acquired knowledge of the claimant’s disability and thus had a duty to make reasonable adjustments. The tribunal found that the respondents failed to comply with this duty, notably by issuing an interim decision to enforce the office move before engaging in the recommended mediation process. This failure caused injury to the claimant’s feelings.
On constructive dismissal, the tribunal interpreted the employment contracts and concluded that the mobility clause did not permit the respondents to require the claimants to move from home based to office based work. The tribunal gave weight to the ordinary dictionary meanings of "from" and "at" and to the longstanding custom and practice of home based working for similar employees.
The respondents’ failure to provide proper notice, consultation, and time to implement the change was found to be a fundamental breach of contract and/or a breach of the implied term of trust and confidence. This breach was a factor in the claimants’ resignation, constituting unfair constructive dismissal.
The tribunal found no contributory fault on the part of the claimants and applied a Polkey deduction in assessing compensation, concluding that had proper procedures been followed, a fair dismissal might have been possible in early 2017.
The tribunal also considered the grievance process and found it unsatisfactory but did not award an uplift for failure to comply with the Labour Relations Code of Practice due to the claimants’ resignation prior to its conclusion.
Holding and Implications
The tribunal made the following core rulings:
- The claims for unlawful deduction of wages, breach of contract related to holiday pay and cost of a pass, age discrimination, and sex discrimination were dismissed following withdrawal by the claimants.
- No finding of direct disability discrimination against the respondents was made.
- The respondents breached their duty to make reasonable adjustments under the Disability Discrimination Act 1995.
- Both claimants were unfairly constructively dismissed by the first respondent.
- Compensation awards were made to the claimants as follows:
- First claimant: £12,758.00 for unfair constructive dismissal plus £2,000.00 for injury to feelings with interest.
- Second claimant: £18,443.26 in total, including compensation for unfair constructive dismissal and injury to feelings.
The decision directly affects the parties by confirming liability for unfair constructive dismissal and failure to make reasonable adjustments and awarding compensation accordingly. The tribunal did not establish any new legal precedent but applied established legal principles to the facts of this case.