Meikle v Nottinghamshire County Council

This appeal concerned three principal issues in employment and disability discrimination law: (1) whether the employee had been constructively dismissed; (2) whether a constructive dismissal amounts to a "dismissal" for the purposes of the Disability Discrimination Act 1995 (the DDA); and (3) whether a reduction of contractual sick pay to half-pay after 100 days constituted unlawful discrimination under the DDA. The Employment Tribunal had rejected constructive dismissal, held that constructive dismissal was not a "dismissal" under section 4(2)(d) of the DDA, and found the half-pay decision justified. The Employment Appeal Tribunal reversed those conclusions.

The Court of Appeal dismissed the employer's appeal. The court held that (a) the tribunal had applied the wrong, subjective, test to the implied term of mutual trust and confidence and was wrong to reject the "last straw"/cumulative course of conduct analysis; (b) on the proper objective test the employer had repudiated the contract by persistent failures (including an unjustified suspension and failure to implement reasonable adjustments such as enlarged materials and additional non-contact time) and the employee resigned in response, so she was constructively dismissed (Employment Rights Act 1996 s.95(1)(c) applied); (c) a constructive dismissal can amount to a "dismissal" under section 4(2)(d) of the DDA and so may be a discriminatory act; and (d) contractual sick-pay paid directly by an employer is not excluded by section 6(11) of the DDA, the employer had failed in its section 6 duties and, on proper application of section 5(5), could not justify the reduction to half-pay.

Background and facts:

• The respondent, Mrs Gaynor Meikle, was employed by Nottinghamshire County Council (NCC) as a teacher. From about 1993 she suffered progressive visual impairment and required enlarged print and other workplace adjustments (for example enlarged daily cover timetables and additional non-contact time to mark during daylight).
• Over a period the school and NCC repeatedly failed to implement adjustments which the tribunal later found were reasonable. In September 1999 she was suspended on grounds which the tribunal found to be irrational and unjustified. From 17 December 1999 NCC placed her on half-pay under a policy reducing sickness benefit after 100 days' absence. Extensive correspondence between her solicitors and NCC in March–May 2000 set out requested adjustments and, in a letter of 15 May 2000, additional preconditions for her return. She resigned on 30 May 2000, characterising her resignation as in response to breach of the implied term of mutual trust and confidence and discrimination.

Procedural history and relief sought:

• Mrs Meikle presented two originating applications alleging disability discrimination and (in the second application) constructive dismissal. The Employment Tribunal found multiple DDA breaches in her favour but rejected her claims of constructive dismissal and held that constructive dismissal was not a "dismissal" under section 4(2)(d) of the DDA; it also upheld the employer's justification for placing her on half-pay. The Employment Appeal Tribunal allowed her appeal on the three points noted above. The County Council then appealed to the Court of Appeal.

Issues framed by the court:

1. Did the employee validly accept a repudiation of contract such that she was constructively dismissed (Employment Rights Act 1996 s.95(1)(c))?
2. If there was a constructive dismissal, does "dismissal" in section 4(2)(d) of the DDA include constructive dismissal?
3. Does section 6(11) of the DDA exclude contractual sick-pay from the duty to make reasonable adjustments, and, if not, could NCC justify reducing her pay to half-pay? How did section 5(5) affect justification?

Court's reasoning and conclusions:

• Constructive dismissal: the tribunal had erred by applying a subjective test to the implied term of mutual trust and confidence. Applying the objective test from Malik and Mahmud, the Court of Appeal agreed with the EAT that NCC's cumulative conduct (including an unjustified suspension and long-standing failures to make reasonable adjustments such as enlargement of materials and allocation of non-contact time) amounted to a fundamental breach. The tribunal's finding that the employee resigned because of NCC's refusal of the four new conditions was properly read as including the longstanding reasonable adjustments; her resignation was in response to the employer's repudiation and therefore amounted to constructive dismissal.
• Meaning of "dismissal" in the DDA: on statutory construction and practical considerations (including limitation periods), the court held that constructive dismissal can be a "dismissal" under section 4(2)(d) of the DDA. The court rejected arguments from legislative history that the DDA should be read narrowly on this point, and preferred the EAT's view that treating constructive dismissal as a dismissal accords with substance over form and avoids prejudicing the employee by limitation rules.
• Sick-pay reduction: the Court rejected the tribunal's conclusion that section 6(11) excluded contractual sick-pay from the section 6 duty. Contractual sick-pay paid directly by an employer is not an excluded occupational pension or third-party insurance benefit. The employer had failed to show that, had it complied with its section 6 duty, the employee would nonetheless have been absent for over 100 days. Applying section 5(5), the employer could not justify the less favourable treatment of placing her on half-pay.

Disposition:

• The Court of Appeal upheld the EAT. The employer's appeal was dismissed.

This is an appeal against the Employment Appeal Tribunal's allowance of an appeal by the employee. The Court of Appeal dismissed the employer's appeal. It held that the Employment Tribunal applied the wrong subjective test to the implied term of mutual trust and confidence and erred in law; on the correct objective test the cumulative failures of the employer (including an unjustified suspension and persistent failure to make reasonable adjustments such as enlarged materials and additional non-contact time) amounted to a repudiation of contract which the employee accepted, so she was constructively dismissed. The court also held that constructive dismissal can amount to a "dismissal" under section 4(2)(d) of the Disability Discrimination Act 1995 and that contractual sick-pay is not excluded by section 6(11); applying section 5(5) the employer could not justify reducing the employee to half-pay. For these reasons the EAT's conclusions were upheld and the appeal is dismissed.

Employment Tribunal (first instance) found multiple DDA breaches in claimant's favour but rejected claims of constructive dismissal and the sick-pay challenge; Employment Appeal Tribunal (EAT/0033/03/RN) allowed the claimant's appeal on constructive dismissal, the meaning of "dismissal" under the DDA, and the sick-pay issues; Court of Appeal ([2004] EWCA Civ 859) dismissed the employer's appeal and upheld the EAT.