Fox v South Essex Academy Trust

An Employment Tribunal errs in law where its conclusions on reasonable adjustments and constructive dismissal rest on a material factual premise contradicted by the evidence. A grievance decision-maker's reliance on documents which were relevant and readily available, but which had not been disclosed to the disabled employee before the grievance hearing, could materially affect whether adequate adjustments were made and whether trust and confidence was undermined.

Where the asserted disclosure failure was ongoing, and the Tribunal treated earlier disclosure as sufficient, the same error could also undermine the dismissal of a related harassment claim.

The claimant, a primary-school teacher, resigned after the respondent conducted her grievance hearing in her absence. She claimed disability discrimination, harassment and constructive unfair dismissal. The Employment Tribunal dismissed those claims, while upholding an unlawful-deduction claim.

The claimant appealed against the dismissals. The central issue was whether the Tribunal had wrongly assumed that the grievance documents relied on by the grievance investigator had been disclosed to the claimant in the bundle sent to her on 1 March 2017.

1. Appeal allowed. The Employment Tribunal erred in law by finding that the bundle provided on 1 March 2017 contained the relevant and readily available grievance documents. A comparison between the investigator's evidence describing the material she considered and the documents supplied to the claimant showed that, subject to limited exceptions, it did not.
2. The missing material was both relevant and readily available. It had been relied on by the investigator when deciding the grievance. The Tribunal's conclusions on reasonable adjustments and constructive dismissal depended materially on the contrary premise that relevant disclosure had been provided in good time for the 31 March hearing.
3. The error was not cured by the Tribunal's separate finding that it was reasonable to arrange the grievance hearing. Its findings on reasonable adjustments were additionally flawed because they conflated documents specifically requested by the claimant with the wider category of relevant and readily available documents. Some documents specifically requested were also relevant and readily available.
4. The claimant was a litigant in person with a disability in a document-heavy case. Although she could not advance a new case on appeal, the disclosure issue was not new: the Tribunal had itself treated it as relevant to the reasonable-adjustments and constructive-dismissal claims.
5. With hesitation, the Tribunal also held that the error undermined the harassment decision. The earlier complaint about disclosure embraced an ongoing failure, since the disclosure on 1 March had not remedied the failure to provide the relevant documents.

• Employment Appeal Tribunal: Allowed the claimant's appeal from the Employment Tribunal.
• Employment Tribunal, East London: In a judgment sent to the parties on 14 November 2018, dismissed the claimant's claims for disability discrimination, harassment and constructive unfair dismissal, but declared that there had been an unlawful deduction from wages.