Newcastle City Council v Spires

An employment tribunal must determine only the reasonable adjustments identified as issues in the case. A tribunal cannot establish breach by reference to assurances or grievance handling which were not properly advanced as adjustments.

Considering or consulting about a possible adjustment is not itself necessarily a statutory step. The tribunal must identify the specific adjustment relied upon and decide whether it was reasonable. In a redeployment case, that may require consideration of placing the employee on a redeployment register.

Where an employer’s fundamental breach is continuing, the employee may resign while it continues. Receipt of sick pay does not automatically affirm the contract. A final act may be a last straw if it contributes, however slightly, to the cumulative breach of trust and confidence.

Mrs Spires, an employee of Newcastle City Council, brought claims of disability discrimination and constructive unfair dismissal. The Employment Tribunal upheld both claims.

On disability discrimination, the Tribunal found that the Council’s working practices placed Mrs Spires at a substantial disadvantage. It held that the Council should have given assurances, dealt promptly with her grievance and explored medical redeployment.

On constructive dismissal, the Tribunal found a continuing fundamental breach arising from the failure to deal with her grievance. It also found that replacing Mrs Spires without informing her was a final straw. The Council appealed, principally challenging the reasonable-adjustment findings and the conclusion that Mrs Spires had not affirmed the contract.

The appeal was allowed in relation to reasonable adjustments and dismissed in relation to constructive unfair dismissal.

1. Issues identified. The Tribunal was not entitled to find breaches based on early assurances that Mrs Spires would not return to the same environment or that medical redeployment would be considered. Nor was it entitled to treat the prompt hearing of the grievance as a reasonable adjustment where those matters had not been identified as the adjustments in issue. Chapman v Simon [1994] IRLR 124 and Tarbuck v Sainsbury's Supermarkets Limited [2006] IRLR 664 applied.
2. Redeployment. The Tribunal’s finding that redeployment should have been considered or explored was inadequate. Merely considering or consulting about a possible step is not itself a statutory step. The Tribunal had to address the specific case that Mrs Spires should have been placed on the Council’s redeployment register. That issue was remitted for determination by the same Tribunal, with the structure identified in Environment Agency v Rowan [2008] IRLR 20 and the requirements of section 18B kept in mind.
3. Constructive dismissal. The failure to deal with the grievance was a continuing fundamental breach. Under Bliss v South East Thames Regional Health Authority [1985] IRLR 308, Mrs Spires remained entitled to accept that breach while it continued. Continuing to receive sick pay did not establish agreement that the grievance need not be dealt with.
4. The Council’s decision to arrange Mrs Spires’s replacement without informing her could constitute the last straw. Applying London Borough of Waltham Forest v Omilaju [2005] IRLR 65 and Lewis v Motorworld Garages Ltd [1985] IRLR 465, the final act need not itself be a breach, but it must contribute, however slightly, to the cumulative breach of trust and confidence.
5. The Tribunal’s conclusion that there had been no affirmation contained no error of law. There is no rule that accepting sick pay necessarily affirms the contract: El-Hoshi v Pizza Express Restaurants [2003] UKEAT/0857/03. The reasonable-adjustment issue was remitted to the same Tribunal, having regard to Sinclair Roche & Temperley v Heard [2004] IRLR 763.

• Employment Appeal Tribunal: The appeal from the Employment Tribunal’s judgment dated 14 April 2010 was allowed on the reasonable-adjustment issue and remitted to the same Tribunal. The finding of constructive unfair dismissal was upheld.