Disability Discrimination Update – Spencer Keen
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Newcastle City Council v Spires UKEAT/0334/10/ZT
Keywords: Reasonable Adjustments – Constructive Dismissal – Whether Claiming Sick Pay Affirms Contract
C succeeded in a claim of disability discrimination and constructive unfair dismissal in the ET. R appealed.
FACTS
C went off sick with stress and raised a grievance. She stated that her illness was stress related and was caused by a lack of clarity around roles and responsibilities in her department. Her grievance was not dealt with. R’s occupational health advisers initially stated that C would not be able to return to work until her grievance was settled and she was assured about her work situation. Eventually C became unable to work for R again in any capacity. C resigned when her sick pay expired and claimed that R had failed to place her on the redeployment register or deal with her grievance.
The ET held that R was in breach of its duty to make reasonable adjustments, in breach of the implied term of trust and confidence and in breach of the implied term that it would reasonably and promptly afford a reasonable opportunity to employees to obtain redress of any grievance. R appealed on the basis that the ET had erred in: (i) finding that R had failed to make adjustments which had not properly been in issue in the case; (ii) finding that merely “considering” an adjustment could amount to a reasonable adjustment; and (iii) finding that C had not affirmed the contract by continuing to claim sick pay.
HELD
The EAT allowed the appeal in respect of 3 of the 4 adjustments which the ET held should have been made as they were not actually raised as issues during the ET case (following Chapman v Simon [1994] IRLR 124). The finding in respect of the 4th adjustment (a failure to consider redeployment) was an error of law since “merely going through the mental process of considering a potential step cannot amount to a ‘step’ for the purposes of section 4A.” However, the EAT agreed that the duty to make adjustments had arisen and, since the ET did not address the question of whether R had failed to place C on the redeployment register, the EAT remitted this part of the case to the ET.
The EAT also dismissed the other grounds of appeal. The failure to address C’s grievance was a fundamental breach of contract. C was entitled to continue claiming sick pay and it was open to C to accept the breach so long as R remained in fundamental breach of contract. There was no rule of law that an ET must hold that an employee who accepts sick pay has affirmed the contract or waived the fundamental breach.
COMMENT
One of the most frequent appeals in reasonable adjustments cases arises where an ET finds that a respondent has failed to “consider” an adjustment. “Considering” an adjustment is not making a reasonable adjustment. For instance, a finding that R has failed to consider medical advice is largely irrelevant to whether or not R has failed to implement the recommendations made by that advice. The leading case in this area is Tarbuck v Sainsburys Supermarket [2006] IRLR 664.
Practitioners will also be familiar with claimants who resign after a protracted period of absence when their sick pay has been exhausted. Employers who delay dealing with issues while an employee is on sick leave risk facing an unfair constructive dismissal claim even at the end of the sick leave even if the sick leave has been lengthy.
Disability Discrimination Update – 2011/Q2/p.4