The Charity Commission v Orbison

A constructive dismissal based on breach of the implied term of trust and confidence requires conduct which, assessed objectively, clearly shows an intention to abandon or altogether refuse contractual performance. Conduct directed to securing an employee’s return to work will not ordinarily meet that standard merely because the employee considers it unreasonable.

For a reasonable-adjustments claim under section 20 of the Equality Act 2010, the tribunal must identify the provision, criterion or practice, and the nature and extent of the substantial disadvantage it causes. It cannot assess whether a proposed step is reasonable without those findings.

The Charity Commission appealed against the Liverpool Employment Tribunal’s majority decision that Mr Orbison had been constructively unfairly dismissed and that the Commission had failed to make a reasonable adjustment. The Tribunal had dismissed his protected-disclosure, indirect-discrimination and discrimination-arising-from-disability claims.

Mr Orbison was disabled by an anxiety and depressive disorder and was absent from work. The Commission proposed an informal return-to-work meeting chaired by an independent manager, but maintained that his line manager, Ms Killoran, had to participate. Mr Orbison resigned rather than attend a meeting involving her.

The central issues were whether that requirement was a repudiatory breach of the implied term of trust and confidence, and whether the Commission should reasonably have permitted a meeting without Ms Killoran.

1. The appeal was allowed in part. The Tribunal’s finding of constructive unfair dismissal was set aside. Objectively assessed, the Commission’s purpose in requiring Ms Killoran to participate was to secure, rather than hinder, Mr Orbison’s return to work. Its actions were supported by occupational-health evidence and could not amount to a repudiatory breach.

2. The relevant inquiry was whether the alleged contract-breaker had clearly shown an intention to abandon and altogether refuse to perform the contract. A breach of the implied term of trust and confidence is necessarily repudiatory, but the alleged conduct must first be capable of amounting to such a breach. The Tribunal had identified no justified criticism of Ms Killoran that could make her attendance at the proposed meeting a contractual breach. Its contrary conclusion was one no reasonable tribunal could have reached.

3. The Tribunal’s reasonable-adjustments decision was also set aside. It was permissible to read its earlier finding of no disadvantage as excluding the requirement to meet Ms Killoran, so there was no fatal internal inconsistency. However, the Tribunal did not identify the nature or extent of the substantial disadvantage caused by that requirement. It also gave no reasons why a meeting with the independent manager alone would be a reasonable adjustment.

4. The Employment Appeal Tribunal could not conclude that the reasonable-adjustments claim was bound to fail. That issue was remitted for rehearing before a fresh Employment Tribunal, applying section 20 of the Equality Act 2010 and the required structured analysis.

• Employment Appeal Tribunal: Allowed the Commission’s appeal against the constructive-dismissal finding and set it aside. Set aside the reasonable-adjustments finding and remitted that issue to a fresh Employment Tribunal.
• Employment Tribunal, Liverpool: In a judgment sent to the parties on 3 June 2012, the majority upheld claims for failure to make reasonable adjustments and constructive unfair dismissal. It dismissed the protected-disclosure and other disability-discrimination claims.