The Carphone Warehouse Ltd v Martin

A failure to exercise care in a particular transaction, or to progress a disciplinary process efficiently, is not without more a provision, criterion or practice for the reasonable-adjustment duty. Nor is the avoidance of error or delay a step which an employer can be required to take under section 4A of the Disability Discrimination Act.

A constructive dismissal may nevertheless arise from a cumulative course of conduct. Individual matters need not each be contractual breaches. A final act need only add something to the cumulative breach of trust and confidence, provided it is not wholly innocuous. An employee may resign in response to that course of conduct without having identified every earlier component in the resignation letter.

The Employment Tribunal held that the claimant, who had a personality disorder and was disabled, had been constructively and unfairly dismissed. It also upheld two reasonable-adjustment claims arising from an erroneous July 2010 pay payment and the prolonged suspension and disciplinary process.

The employer appealed those findings. It contended that the reasonable-adjustment claims did not fall within section 4A of the Disability Discrimination Act, and that the Tribunal had erred in finding a repudiatory breach, resignation in response to it, and unfair dismissal. The claimant cross-appealed against other adverse findings.

The central issues were whether mistakes and delay could constitute a provision, criterion or practice and whether the employer's cumulative conduct justified constructive dismissal.

1. Appeal allowed in part. The Employment Appeal Tribunal set aside the two findings of disability discrimination based on a failure to make reasonable adjustments. It dismissed the employer's appeal against the finding of constructive and unfair dismissal, and dismissed the claimant's cross-appeal.

2. Section 4A of the Disability Discrimination Act required an employer to take reasonable steps to prevent a provision, criterion or practice, or a physical feature, placing a disabled person at substantial disadvantage. A lack of competence in preparing a particular wage payment was not a provision, criterion or practice applied by the employer. Requiring the employer to take care to pay correctly was not requiring it to take a step within the section.

3. The same analysis applied to the prolonged suspension. Incompetence, lack of application, or failure to meet internal time limits was not a provision, criterion or practice. Avoiding delay was not itself the taking of a step for section 4A purposes. The Tribunal's contrary findings could not stand.

4. The constructive-dismissal finding was open to the Tribunal. It was entitled to treat the incorrect July pay, procedural delay and continued suspension, mishandling of the bankruptcy issue, and the inappropriate warning of further disciplinary action as a cumulative course of conduct. Taken together, those matters could amount to a repudiatory breach of the implied term of trust and confidence. The failure to telephone the FSA during the final meeting was innocuous, but the warning at that meeting added to the earlier breaches.

5. The claimant's resignation email sufficiently linked his departure both to the final meeting and to the preceding year of treatment. Continued employment before the final straw did not affirm the contract. The Tribunal had not reversed the burden of proof in finding that he resigned in response to the cumulative breaches. On the findings made, it was plainly open to conclude that the constructive dismissal was unfair under sections 98(2) and 98(4) of the ERA.

• Employment Appeal Tribunal: The employer's appeal succeeded on the two reasonable-adjustment findings but failed on constructive and unfair dismissal. The claimant's cross-appeal was dismissed.
• Employment Tribunal: Held that the claimant had been constructively and unfairly dismissed; upheld two reasonable-adjustment claims; and rejected direct disability discrimination and other proposed disability discrimination claims.