Marks and Spencer Plc v. Powell

For disability discrimination, the comparator must reflect the disadvantage caused by the relevant provision, criterion or practice. Where the arrangement is that work-related issues, including disciplinary action, are suspended during sickness absence, the comparator is a non-disabled employee on long-term sickness absence who is threatened with disciplinary proceedings on returning to work. A reasonable adjustment must have an evidential and factual basis. It cannot be imposed merely because disciplinary action might affect a disabled employee’s return. Constructive dismissal requires a fundamental breach of contract which causes the resignation. An alleged failure to make an adjustment cannot cause resignation where the adjustment was never proposed and the employee resigned for different reasons.

Marks and Spencer Plc appealed against an Employment Tribunal decision in Birmingham, sent to the parties on 4 March 2010. The Tribunal had upheld claims of failure to make reasonable adjustments under section 4A of the Disability Discrimination Act 1995 and constructive unfair dismissal, awarding £11,003.05. It had found that the employer should have commenced disciplinary proceedings while the claimant remained on sick leave, and that failure to do so caused a breach of trust and confidence.

The appeal concerned the proper comparator, whether the alleged disadvantage was supported by the evidence, whether the proposed disciplinary hearing was a reasonable adjustment, and whether it caused the resignation.

1. The appeal was allowed. The EAT substituted its own decision because the Employment Tribunal had found all material facts and no further factual inquiry was required.

2. The Employment Tribunal identified the wrong comparator. The relevant arrangement was the suspension of work-related issues, including disciplinary action, while the claimant was absent through sickness. The proper comparator was a non-disabled person on long-term sickness absence who was threatened with disciplinary proceedings on returning to work. On that comparison, the claimant was not placed at a substantial disadvantage.

3. The finding that the claimant could not return to work until disciplinary proceedings were concluded was misconceived. It was unsupported by the medical evidence and was not the claimant’s case. The proposed adjustment, namely commencing disciplinary proceedings during long-term sick leave, had no sufficient factual or evidential basis and was untenable on the facts.

4. The constructive dismissal finding was fatally flawed. The claimant resigned in response to threats concerning the continuation of her absence and a later allegation of non-cooperation. No proposal had been made to hold disciplinary proceedings during her sickness absence. There was therefore no causal connection between the alleged failure to make that adjustment and the resignation, and no breach of the implied term of trust and confidence entitling the claimant to resign.

5. The EAT did not determine the compensation issue or perversity ground because its conclusions on the other grounds disposed of the appeal. The claims were dismissed.

• Employment Appeal Tribunal: allowed Marks and Spencer Plc’s appeal and dismissed the claims.
• Employment Tribunal, Birmingham: upheld the claims of failure to make reasonable adjustments and constructive unfair dismissal and awarded £11,003.05. The judgment was sent to the parties on 4 March 2010.