Callender v South London and Maudsley NHS Foundation Trust

In a claim under section 15 of the Equality Act 2010, an Employment Tribunal may find that a final written warning for disability-related absence is a proportionate means of achieving a legitimate aim where the absence has materially affected the employer's service, the warning is not an extreme sanction, and no further particular adverse impact or less intrusive measure is established.

A Tribunal must determine the constructive-dismissal case which has been identified and pleaded. It need not entertain, at closing submissions, a substantially broader last-straw case. An act occurring after an employee has evidenced an intention to resign cannot constitute the last straw inducing that resignation.

The Claimant, a community occupational therapist, had lengthy sickness absence and received a final written warning under the Respondent's sickness policy. She alleged that the warning was unfavourable treatment arising from disability under section 15 of the Equality Act 2010.

Her claims for disability-related discrimination, failure to make reasonable adjustments, and constructive unfair dismissal were dismissed by the Employment Tribunal. There was no appeal concerning reasonable adjustments. The constructive-dismissal claim, as framed after a preliminary hearing, relied on an allegedly false statement in a letter of 2 December 2016. The Claimant had written on 6 December that she had made a constructive-dismissal claim, and resigned on 4 January 2017.

She appealed on proportionality, the use of Carranza, the alleged last straw, and whether the 6 December letter could show a settled intention to resign.

1. Appeal dismissed. The Employment Tribunal made no error of law in dismissing the section 15 and constructive-unfair-dismissal claims.

2. The Tribunal had correctly identified the issue under section 15 of the Equality Act 2010: whether the final written warning was a proportionate means of achieving a legitimate aim. Reading its Reasons as a whole, it had carried out the required balance. The warning followed a further 187 days' absence in six months. The Tribunal accepted unchallenged evidence that continued absence significantly affected the team, service users and service delivery. A final written warning was not an extreme sanction, and its adverse impact on an employee who had already received warnings was self-evident. The Claimant identified no particular further adverse impact or alternative measure making the warning disproportionate, and accepted that a warning about the possible consequences of continued absence was reasonable.

3. The Tribunal was entitled to treat General Dynamics Information Technology Ltd v Carranza [2015] ICR 169 as relevant by analogy. Although its discussion of a hypothetical section 15 claim arose in a reasonable-adjustments case, its observation that consistent attendance is a legitimate aim and that a carefully considered final warning may be proportionate was relevant, subject to the facts of the individual case.

4. The Tribunal did not misunderstand the constructive-dismissal case. The amendment order and the case stated at the outset confined it to the letter of 2 December 2016. It was not required to permit a fundamentally wider last-straw case to be advanced only in closing submissions, particularly where the Respondent would have presented its case differently.

5. The Tribunal was also entitled to find that the 6 December letter evidenced an intention to resign. Its reference to a constructive-dismissal claim and an ET1 outweighed the tenor of the rest of the letter. A statement received on 7 December could not be the last straw where the intention to resign had already been formed. The letter was, in any event, incapable in its overall context of amounting to a fundamental breach of trust and confidence.

• Employment Appeal Tribunal: dismissed the Claimant's appeal.
• Employment Tribunal, London South: dismissed the claims for disability-related discrimination, failure to make reasonable adjustments, and constructive unfair dismissal. The Written Reasons were sent on 11 August 2017.