Nottinghamshire County Council v Meikle

A constructive dismissal is assessed objectively. An employer’s persistent failure to make reasonable adjustments may fundamentally breach the implied term of mutual trust and confidence. The employee must resign in response to that repudiation, but it need only be part of the reason for resignation. A cumulative course of conduct may amount to the breach even though the final event is not itself repudiatory.

A constructive dismissal is a dismissal for section 4(2)(d) of the Disability Discrimination Act 1995. Contractual sick pay paid directly by an employer is not excluded from the reasonable-adjustment duty by section 6(11). Section 5(5) prevents an employer justifying disability-related less favourable treatment by relying directly or indirectly on its own unjustified failure to make adjustments.

The respondent was a teacher with a serious visual impairment. The Employment Tribunal upheld numerous complaints that her employer had failed to make reasonable adjustments, including enlarging written material, altering her timetable and providing additional non-contact time. It nevertheless rejected her claims for constructive dismissal, discriminatory dismissal and discrimination arising from reducing her sick pay to half pay.

The Employment Appeal Tribunal reversed those conclusions. The employer appealed. The central questions were whether the respondent had resigned in response to a fundamental breach of contract, whether constructive dismissal was a dismissal under the Disability Discrimination Act 1995, and whether the sick-pay reduction could be justified.

1. Appeal dismissed. Keene LJ, with whom Thorpe LJ and Bennett J agreed, held that the EAT had correctly reversed the tribunal on all three issues.
2. The tribunal had wrongly treated actual subjective loss of trust and confidence as necessary. The correct inquiry, following Malik and Mahmud v Bank of Credit and Commerce International [1998] A.C. 20, is objective. The employer’s prolonged and continuing failure to provide reasonable adjustments, together with the unjustified suspension, was capable of repudiating the contract. The failure concerning enlargement of material and non-contact time was fundamental in this case.
3. For constructive dismissal, resignation must be in response to the repudiation. It need not be caused solely by it. The respondent’s proposed conditions for returning to work included the outstanding reasonable adjustments. The tribunal’s own findings showed that she reasonably concluded they would not be made. She therefore resigned, at least in part, in response to the employer’s fundamental breach.
4. A cumulative course of conduct may breach the implied term even if the final event is not itself a breach. Applying Wood v W.M. Car Services (Peterborough) Ltd [1981] I.C.R. 666, as approved in Lewis v Motorworld Garages Ltd [1986] I.C.R. 157, the EAT was entitled to substitute findings of constructive and wrongful dismissal rather than remit the case.
5. A constructive dismissal is a dismissal within section 4(2)(d) of the Disability Discrimination Act 1995. A construction excluding an employee driven from employment by discriminatory conduct would attach undue importance to form and could adversely affect limitation. The court preferred Catherall v Michelin Tyres plc [2003] I.C.R. 28 and Derby Specialist Fabrication Ltd v Burton [2001] I.C.R. 833 to Commissioner of Police of the Metropolis v Harley [2001] I.C.R. 927.
6. Direct contractual sick pay was not a benefit excluded by section 6(11). The employer was obliged to consider a reasonable adjustment to prevent the disadvantage caused by half pay. Further, section 5(5) barred justification for the half-pay reduction because the employer had unjustifiably failed to make adjustments; it had not shown that the respondent would have been absent for more than 100 days had the necessary adjustments been made.

• Court of Appeal (Civil Division): The employer’s appeal was dismissed. The court upheld the EAT’s reversal of the tribunal on constructive dismissal, discriminatory dismissal and sick pay.
• Employment Appeal Tribunal: In EAT/0033/03/RN, the EAT allowed the employee’s appeal from the Employment Tribunal on those issues.
• Employment Tribunal: The tribunal upheld numerous reasonable-adjustment complaints but rejected the claims for constructive dismissal, discriminatory dismissal and discrimination arising from the reduction of sick pay.