Conry v Worcestershire Hospital Acute NHS Trust

An Employment Tribunal must address all material acts and omissions relied on as capable, alone or cumulatively, of amounting to a repudiatory breach of the implied term of trust and confidence. It must not confine the analysis to selected reasonable-adjustment failures or reject the claim solely because other allegations have failed.

For a constructive-dismissal claim, the final act need not itself be blameworthy, but must be capable of contributing to a cumulative repudiatory breach. A resignation may be in response to such a breach even where other concerns also contributed.

Under section 26 of the Equality Act 2010, absence of an intention to create a prohibited environment does not determine harassment. The tribunal must also assess the effect of unwanted conduct by reference to the claimant’s perception, the other circumstances and objective reasonableness.

The Claimant, a disabled specialist nurse, appealed the Birmingham Employment Tribunal’s dismissal of her claims for constructive unfair dismissal and disability-related harassment. The claims concerned a delayed and inadequately implemented office reorganisation on 13 April 2015. The Tribunal found failures to make reasonable adjustments, including delay in providing a chair and dedicated telephone line, but held that those matters had not concerned the Claimant sufficiently to found constructive dismissal.

The Claimant contended that the Tribunal had failed to address the wider consequences of the reorganisation, including lack of consultation, an unsuitable workspace, obstructions and trip hazards. She also challenged its harassment conclusion, which focused on the Respondent’s lack of intention to create an intimidating environment. The central issues were whether those omissions disclosed errors of law and the proper scope of any remission.

1. Appeal allowed. The Employment Tribunal erred in law by failing to address an important part of the constructive-dismissal case. Its reasoning considered only the reasonable-adjustment failures and the rejected conspiracy allegation. It did not consider whether the manner and consequences of the office reorganisation were acts or omissions capable, individually or cumulatively, of breaching the implied term of trust and confidence.

2. The Tribunal wrongly treated the Claimant’s lack of concern about particular adjustments as decisive. That confused breach with causation and overlooked findings that the reorganisation had made her workspace worse, created hazards and remained a serious source of distress. The absence of direct discrimination, and the fact that the changes were attempted adjustments, did not prevent the mishandled implementation from being relevant to a contractual repudiation.

3. The Tribunal also adopted an incorrect approach to the last-straw issue. It was not necessary to identify a series of separate contractual breaches. A series of acts or incidents may cumulatively amount to repudiation, and the final act need only contribute to it. The meeting with Dr Basheer was not entirely innocuous on the Tribunal’s findings and was capable of being a last straw when considered with the reorganisation. The finding as to the real reason for resignation was therefore unsafe. [2005] IRLR 35 and [2004] IRLR 703 were applied.

4. The harassment decision also could not stand. The Tribunal had correctly directed itself under section 26 of the Equality Act 2010, but its reasons addressed intention only. It failed to determine whether the unwanted conduct had the prohibited effect, taking account of the Claimant’s perception, all the circumstances and whether that effect was reasonable.

5. The Burns/Barke procedure was inappropriate because the defects were legal errors, not merely inadequate reasons. Both claims were remitted to the same Tribunal. On remission, the Tribunal could revisit relevant factual findings and receive fresh evidence as necessary, but was to confine itself to the two remitted claims concerning the events of 13 April 2015 and their consequences.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal and remitted the constructive-dismissal and harassment issues to the same Employment Tribunal.
• Birmingham Employment Tribunal: Judgment promulgated on 23 May 2016. It dismissed the constructive-dismissal and harassment claims while upholding two failures to make reasonable adjustments.