Butler v Mellons Ltd & Anor

Claims of disability discrimination, victimisation and constructive dismissal involve distinct legal inquiries. The absence of direct discrimination, failure to make reasonable adjustments or harassment does not establish that there was no victimisation, since victimisation concerns less favourable treatment because a protected act was done. Nor does the failure of a discrimination claim determine whether the employer breached the implied term of trust and confidence. Constructive dismissal requires an objective assessment of whether the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage trust and confidence. Relevant acts may be considered individually or cumulatively.

The claimant, after 23 years’ employment, brought claims for disability discrimination and constructive unfair dismissal. The Employment Tribunal rejected the discrimination complaints, including direct discrimination, failure to make reasonable adjustments and harassment. It dismissed victimisation and constructive dismissal on the basis that, because the discrimination claims failed, those claims necessarily failed too.

The claimant appealed, arguing that victimisation and breach of the implied term of trust and confidence required separate legal analysis. The central issues were whether the Tribunal had misunderstood the pleaded issues, whether its reasons were sufficient, and whether the matters should be remitted.

1. Appeal allowed. The Employment Tribunal had insufficiently explained its conclusions on victimisation and constructive unfair dismissal. Its use of the words “it follows” showed that it had treated the failure of the discrimination claims as determinative.
2. Victimisation under Disability Discrimination Act 1995, section 55, concerns less favourable treatment because the claimant has done a protected act, such as alleging a contravention of the Act. It is not necessary to establish an underlying act of direct discrimination, failure to make reasonable adjustments or harassment. The Tribunal therefore had to determine whether the alleged detriment resulted from the complaint itself or from the manner in which it was made.
3. Constructive dismissal involves a separate contractual inquiry. The question is whether the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely objectively to destroy or seriously damage the relationship of trust and confidence. The conduct may be assessed singly or cumulatively, without requiring a causal connection with disability or discrimination. The approach was consistent with Western Excavating (ECC) Ltd v Sharp.
4. The Tribunal’s findings did not establish that repudiatory breach was necessarily made out. However, the handling of the grievance appeal, including failure to address the claimant’s grounds of appeal, and any unauthorised delay in payment could be considered together in deciding whether the implied term was breached. The claimant would also have to show that he resigned in reliance on the breach.
5. The remission should be to the same Tribunal. Applying the considerations identified in Sinclair Roche & Temperley v Heard & Another, proportionality, cost, time, absence of apparent bias and the Tribunal’s professionalism favoured that course. The Tribunal had made an honest error rather than producing a totally flawed decision or demonstrating pre-judgment. The matters identified were remitted accordingly.

• Employment Tribunal, Bury St Edmunds: Reasons given on 25 January 2011. Disability discrimination claims were rejected, and victimisation and constructive unfair dismissal were dismissed on the basis that the discrimination claims had failed.
• Employment Appeal Tribunal: Appeal allowed because the reasoning on victimisation and constructive dismissal was insufficient. The identified issues were remitted to the same Tribunal.