Matthew Riley v Direct Line Insurance Group PLC

The Employment Appeal Tribunal dismissed the appellant's appeal from the Employment Tribunal. The EAT held that the tribunal did not fail to make reasonable adjustments in the conduct of the appellant's cross-examination and that any departure from a prior case management direction did not render the hearing substantively unfair. The EAT held that, on the facts, the termination of the appellant's employment on 19 September 2018 was by mutual consent and therefore not a "dismissal" for the purposes of section 95(1)(a) of the Employment Rights Act 1996. The tribunal had also found two failures to make reasonable adjustments (noise-cancelling headphones and Asperger's awareness training) but concluded those complaints were presented out of time and it was not just and equitable to extend time; the EAT found no error in that exercise of discretion because the claimant had decided to pursue the insurer's "pay direct" option rather than a return to work.

Background and procedural posture

• The appellant, who was accepted to be disabled by reason of autistic spectrum disorder and anxiety/depression, was employed by Direct Line from 2012 until the end of his contract in September 2018. He had been absent from work for an extended period and had been paid under a private health insurance scheme (UNUM) at 80% of salary.
• Following a phased return to work in April 2018 the appellant ceased work again in May 2018. Direct Line proposed that he move to UNUM's "pay direct" arrangement and end his employment. The appellant agreed to that option in August/September 2018 and a final meeting on 19 September 2018 recorded that he agreed. A later letter of 25 September 2018 recorded a dismissal on grounds of capability.
• The appellant brought claims for unfair dismissal, disability discrimination (including failure to make reasonable adjustments) and related relief. The Employment Tribunal (Leeds) rejected the unfair dismissal and discriminatory dismissal claims on the basis that the termination was consensual, found that two reasonable adjustments had not been made but that those claims were out of time and refused to extend time on just and equitable grounds. The appeal to the EAT proceeded on three grounds allowed at a rule 3(10) hearing: (1) failure to make reasonable adjustments to enable a fair hearing; (2) error of law in finding consensual termination; (3) error in refusal to extend time.

Issues framed by the court

• Whether the Employment Tribunal failed to make reasonable adjustments at the final hearing (notably by not providing written copies of cross-examination questions as ordered).
• Whether the tribunal erred in law in finding the termination was by mutual consent and thus not a dismissal under section 95(1)(a) Employment Rights Act 1996.
• Whether the tribunal misapplied the just and equitable discretion when refusing to extend time for the reasonable-adjustments claims.

Reasoning and disposition

• On reasonable adjustments at the hearing the EAT accepted contemporaneous evidence of a discussion about adjustments and the tribunal's assessment that the appellant had said he did not need written questions unless he requested them. The EAT concluded the tribunal had acted reasonably in relying on the appellant's expressed wishes and that no specific prejudice from the lack of written questions had been identified; there was therefore no substantive unfairness.
• On consensual termination the EAT set out the relevant legal propositions (including the question "who really terminated the contract?" and that freely given mutual consent is not a dismissal) and held that the tribunal, acting on the realities, was entitled on the evidence to find free mutual consent. The tribunal had considered whether the appellant was tricked or coerced and concluded his consent was informed; the EAT found no error of law in that factual conclusion.
• On extension of time the EAT accepted the tribunal's finding that the appellant had decided in August 2018 to pursue the pay-direct option rather than to seek continued return-to-work adjustments; that change of mind was a proper basis for refusing to extend time and the tribunal had adequately balanced length of delay and prejudice.

Relief sought: claims for unfair dismissal and disability discrimination; specific relief claimed is not stated in the judgment.

Appeal dismissed. The EAT upheld the Employment Tribunal's conclusions that (1) no substantive unfairness arose from the manner of the appellant's cross-examination because the tribunal reasonably relied on the appellant's expressed wishes about adjustments and there was no identified prejudice; (2) on the facts the termination of employment was by the free mutual consent of both parties and therefore not a dismissal under section 95(1)(a) Employment Rights Act 1996; and (3) the tribunal did not err in refusing to extend time for the reasonable-adjustments claims because the claimant had opted to pursue the insurer's pay-direct arrangement rather than pursue return-to-work adjustments.

Appeal from an Employment Tribunal sitting in Leeds (judgment promulgated 11 November 2019). A rule 3(10) hearing before His Honour Judge Auerbach allowed the appeal to proceed on three grounds. The matter was heard by the Employment Appeal Tribunal and delivered as [2023] EAT 118.