Salford NHS Primary Care Trust v Smith (Disability Discrimination) [2011] UKEAT 0507_10_2608

EAT
Salford NHS Primary Care Trust v Smith (Disability Discrimination)
[2011] UKEAT 0507_10_2608 · 2011-08-26
[1]This is an appeal by the Respondent and a cross‑appeal by the Claimant (as we shall continue to call them) from a decision of the Employment Tribunal at Manchester (Employment Judge Sherrat and lay members) sent to the parties on 6 August 2010. The Employment Tribunal found that the Respondent had discriminated against the Claimant, who was disabled, by failing to make reasonable adjustments. It also found that she had been unfairly dismissed (constructive dismissal). The appeal was referred to a full hearing by me on 26 October 2010, and the cross‑appeal was referred to a full hearing by Langstaff J on 20 December 2010. Factual background[2]We take these facts substantially from the decision of the Employment Tribunal.[3]The Respondent is a Primary Care Trust and substantial employer. On 3 February 1993 the Claimant joined the Respondent as an occupational therapist. At the time of her resignation/dismissal (23 June 2008) she was the Community Paediatric Team Leader/Clinical Specialist. She remained an occupational therapist but at a managerial level, and led a team of five paediatric occupational therapists while continuing to practice herself.[4]In late 2005 she took on a new post to review and assist young people in the care of the Respondent’s children’s services, making the transition to the care of its adult services. She worked together with a senior physiotherapist, Mrs Walmsley; each worked approximately nine hours in this post part‑time. Various responsibilities were in due course added to her job description, which was referred to as “transitional work.” She was paid at band 8a and worked from the Respondent’s premises at Burrows House. Her work entailed significant contact with the public.[5]In late 2006 and early 2007 dramatic events occurred in the Claimant’s personal life; we need not go into further detail. She took some time off and returned to work, but on 29 March 2007 she was certificated sick with a chest infection. She never in fact returned to work or indeed was passed fit for any work by her medical advisors. The Claimant later suffered from post‑infection debility and on 29 August 2007 was diagnosed as suffering from post‑viral fatigue syndrome, and on 19 September 2007 with chronic fatigue syndrome (CFS), which was her claimed disability.[6]While the Claimant was off sick her transition role was divided among others and in effect ceased to exist. On 7 August 2007 she first saw an occupational health nurse and thereafter had a series of meetings with her new manager, Kim Whitehead, some eight in all. She was referred to the Respondent’s occupational health advisors to explore what she might be able to do; she was unable to return to her post, but the transition post was her preferred option when she was able to return to work.[7]The meetings between the Claimant and Ms Whitehead were not minuted as such, but as is common practice the meetings were followed by a detailed letter to the Claimant, who was given the opportunity to correct anything in the letter if she felt it appropriate to do so. She did not do so on any occasion. Various posts were explored which might (when the Claimant was able to return to work) accommodate her. She tried to go to Burrows House to maintain contact with her work as suggested by Dr Gallagher, the occupational health physician. This was not successful, and the Claimant was not able to identify a suitable location where she might feel comfortable; see Employment Tribunal paragraph 18).[8]Reference was also made to the occupational health physician for advice as to whether ill‑health retirement was a possible option, or termination of the Claimant’s employment on the grounds of capability.[9]On 9 January 2008 the Claimant was informed that it might be necessary to consider termination of her employment depending on information received from the occupational health physician following his review of the Claimant’s position shortly to take place.[10]On 17 January 2008 Dr Gallagher wrote to the Respondent to the effect that the Claimant would be unable to deal with clients for a period of months rather than weeks. He considered that it was important that the stress upon the Claimant was not increased by expecting her to return to normal duties sooner than she was capable. Such pressure would be counter‑productive and impede her eventual return to work. Dr Gallagher envisaged any return to work would need to be on a gradually phased basis. He stated:
“I am not convinced that she is currently able to resume any productive work. I recommend that you think in terms of helping her get back to work in some capacity (as distinct from doing productive work) as a first objective.”
[11]He did not consider that the Claimant would have grounds for ill‑health retirement, nor did he think she could return to her current post because of her inability to deal with clients. The option of a reduction in hours and change of role and responsibilities was the most suitable one, which would need to involve non‑clinical work and a very gradually phased return to work:
“However, I cannot advise that she is currently ready to assume this type of approach. The possibility of an employment break should not be ruled out, but I would not regard this as the best option at this stage. Summarising, I think at this moment in time she is unfit for work of any kind. The only possible increase of contact with work could be a matter of an hour or two a week simply as a means of maintaining non‑clinical contact. Listening to her account of the workplace, her perception of the workplace is that it is stressful, and that this is leading to a long hours culture.”
[12]He went on to recommend that in preparation for an eventual return to work an occupational stress risk assessment should be carried out. The terms of this letter were discussed at a meeting on 1 February 2008 (which again referred to the possibility of employment being terminated).[13]On 27 February 2008 Dr Gallagher again wrote; the Claimant’s psychological state was unchanged, and he suggested the option of a career break appeared better than when he last saw her, to protect her employment and allow her the breathing space she needed to recover. His opinion was that there was every reason to expect a good long term recovery so she should regain her work fitness. The Claimant’s husband (who assisted and indeed represented her) emailed Ms Whitehead on 27 February 2008 and pressed for concrete proposals included rehabilitation options, identification of work she could do, and also raising the possibility of a career break, retirement options and sickness payments. The Respondent had made it clear it could not support a career break.[14]The letter following the next meeting contained a now familiar reference to the possibility of termination of employment.[15]By late March 2008 Dr Gallagher had further consulted with the Claimant’s GP, Dr Moss. His prognosis was uncertain, although he would expect a slow but gradual improvement. He considered it unlikely that the Claimant would return to pre‑diagnosis levels of mental acuity and physical energy. It would set the Claimant back were she to be forced to return to previous employment. He suggested part‑time work in the summer, possibly two mornings a week, two to three hours at most preferably with a day in between, and if the Claimant could manage that, working at that level for three months and then building up slowly; this would be better in a non‑client‑facing environment. Dr Gallagher reported to Ms Whitehead that the simplest solution would be a career break, but if this was not acceptable to the Respondent which would have to consider whether she could get back to work sooner than recommended by her GP.[16]Meanwhile the Claimant was becoming frustrated with the failure to resolve issues, and on 19 April 2008 Mr Smith wrote a letter to the HR Director of the Respondent, Mr Fish, in which he expressed that frustration. Mr Smith’s letter had been written between a meeting that took place on 11 April 2008 and the letter of confirmation, which was not sent until 13 May 2008. It is apparent that at this meeting the Claimant made clear she did not wish to return to Burrows House in any capacity because it was “too busy,” and was unable to identify a suitable location for her to return to in any capacity. She accepted that she did not wish, nor could she, return to her band 8a post as a specialist occupational therapist. She was returned to half pay at this meeting (it is unclear to us when this had previously ceased). Half pay was backdated to 1 April 2008. It is clear that the Respondent considered the Claimant was unable to return to post, so it considered other posts. It considered posts up to band 7, but the Claimant did not consider it appropriate to undertake administrative work because she had no IT competence. The Respondent was willing to give her IT training. On 23 May 2008 Ms Whitehead invited the Claimant to a further meeting on 30 May 2008, but late on 29 May 2008 Mr Smith wrote to complain that no progress had been made and detailed proposals were required. Mr and Mrs Smith would be unable to attend the meeting on 30 May 2008.[17]Ms Whitehead sent a detailed letter on 12 June which recounted the attempts that had been made and previous discussions as to finding a role for the Claimant on the basis she was unable to return as a clinical specialist. She also gave explanations, previously discussed, why posts that were available were unsuitable: by reason of her current disabilities, including the inability to have face‑to‑face contact with the public, or because she did not have sufficient IT skills. The Respondent again offered to provide training and invited her to a meeting of 18 June 2008, which again she did not attend. The Respondent had considered various other posts, but they were considered to be unsuitable or inappropriate.[18]On 18 June 2008, after the Claimant had now failed to attend two meetings, the Respondent wrote to invite her to a further meeting on 25 or 27 June 2008. She was advised to bring a trade union representative, and in her absence it was made clear the Respondent might have to consider employment options including termination. As the Employment Tribunal noted the final paragraph referring to employment options had been included in previous letters, so it was not new to the Claimant.[19]As the Employment Tribunal put it, the Claimant “took against” the Respondent on receipt of that letter and decided she must resign, as she did on 23 June 2008. The letter contains the following, which was quoted by the Employment Tribunal:
“I regret that this situation has reached a stage where I no longer have any confidence in my value to the PCT as an employee. Furthermore, our meetings and letters give me no confidence that medical advice from my GP and Dr Gallagher has been accepted. It appears that the PCT is not willing to accommodate the change in my health and circumstances nor to facilitate my eventual return to meaningful, productive and manageable work. My resignation is enclosed. We will be discussing pursuing a grievance procedure with Andy Gill in the immediate future. I wish the Children’s Therapy Team the best possible success for the future.”
[20]The Claimant threatened to issue a grievance, but did not do so until 3 September 2008. The Decision of the Employment Tribunal[21]The Respondent submitted to the Employment Tribunal that there had been no failure to make reasonable adjustments nor had there been a constructive dismissal, because there had been no breach of the implied term of trust and confidence. The letter of 18 June 2008 was not capable of being a “last straw,” and reference was made to the well‑known decision in Omilaju v London Borough of Waltham Forest [2005] IRLR 35 . Mr Grundy, counsel for the Respondent, submitted that reasonable adjustments had to be such as would have some practical consequences for preventing or mitigating the difficulties caused by the relevant provision, criteria or practice (PCP). These would not include a career break. There had been no failure to make reasonable adjustments and no constructive dismissal. It was submitted on behalf of the Respondent that the PCP in this case was the expectation that the Claimant would be able to perform her full role.[22]The Claimant submitted that the PCP was an expectation that the Claimant might return to her substantive post. Although the Claimant was unfit to return to work the Respondent should have taken steps to help her get back in some capacity. The Respondent was not sufficiently proactive; it had been slow in its investigations, and there had been no proper investigation as to what she might do. The Respondent was a large employer, and should have got the Claimant back to work; we interpolate to ask the obvious question, how and when? because she was still unfit for work.[23]The Employment Tribunal then directed itself as to the law. It cited from an IDS handbook and from the decision of London Borough of Hillingdon v Morgan [1999] EAT 1493/98 as authority for the proposition that rehabilitation was itself a reasonable adjustment. It also referred to an ACAS code of practice that had been superseded. We understand that the Employment Tribunal did not have a copy of the case. The Employment Tribunal then went on to consider section 4 of the Disability Discrimination Act and section 18B, as well as the authorities of Environment Agency v Rowan [2008] IRLR 20 and Buckland v University of Bournemouth [2010] IRLR 445 . It concluded (see paragraph 49) that the PCP was the expectation that the Claimant would do her full role in the contracted hours. This placed her at a substantial disadvantage because she was unable to multi‑task, deal with clients or set up emotional barriers. This was what the Employment Tribunal described as a “mountain” she would have to climb if she were to perform her role. Further, she could not work in a noisy or busy environment.[24]At paragraph 50 the Employment Tribunal noted that the Respondent was:
“[...] a Primary Care Trust and a substantial employer with commensurate resources. There was advice from Dr Gallagher and the claimant’s GP that the claimant was fit for rehabilitation not necessarily for substantive work. Given the size and resources of the respondent we take the view that attempts should have been made to produce something for the claimant to do by way of rehabilitation, not necessarily productive, but proposals should have been made to enable the claimant to go to her doctor to say, ‘Doctor, this is what they suggest I do involving perhaps light duties two or three hours a day, two hours a week. Will you please sign me off to go back to work?’ [...] That would have been a reasonable adjustment and in our judgment it should have been made. The fact that such a reasonable adjustment was not made, in our view, makes this a case where the respondent has failed in its duty to the claimant under the reasonable adjustments provisions of the DDA and so there has been disability discrimination.”
[25]The Employment Tribunal then turned to consider breach of the duty of trust and confidence. The Employment Tribunal at paragraph 51 repeated the terms of the Claimant’s letter of 23 June 2008, which we have set out earlier, and went on to ask:
“[...] was it reasonable for the claimant to hold that belief? We take the view that it was and indeed we have so found in our findings on the question of disability discrimination. Was this a loss of trust and confidence entitling the employee to leave? The employer has a statutory duty under the DDA. We take the view that the respondent’s failure to comply with that duty without reasonable and proper cause reasonably caused the claimant to lose trust and confidence in the employer therefore entitling her to leave.”
[26]As no potentially fair reason had been put forward by the Respondent, this was, in the words of the Employment Tribunal, “an unfair constructive dismissal.” Notice of Appeal and Respondent’s submissions[27]Mr Grundy submitted that the “reasonable adjustment” found by the Employment Tribunal which we have just referred to was not in law a reasonable adjustment. It was not contended for by the Claimant in the list of issues (see page 75 of the bundle), nor was it addressed in evidence, nor is it an adjustment contemplated by the code of practice. Failure to make proposals for non‑productive work is at best a matter of procedure rather than an adjustment, and would neither prevent nor alleviate the substantial disadvantage of her inability to multi‑task, deal with clients or set up emotional boundaries and work in a noisy or busy environment. The Respondent stressed that a distinction needed to be drawn between procedural steps an employer might take to determine what reasonable adjustments ought to be made as distinct from the reasonable adjustments themselves, or substantive steps that might be taken to prevent the relevant substantial disadvantage. The duty to consult a GP or put forward proposals were not in themselves substantive steps; reliance was placed on Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 and on Newcastle City Council v Spires [2011] EAT 22 February 2011.[28]The Employment Tribunal’s proposal at paragraph 50 was not “ Meek ” compliant: see Meek v City of Birmingham District Council [1987] IRLR 250 . The Employment Tribunal had failed to give adequate reasons to explain what proposals for non‑productive work might have been made and when, and how these would have prevented or alleviated the substantial disadvantage identified. Further, it should have explained how such proposals were within the meaning of section 18(b) of the Disability Discrimination Act or the code of practice, and why this failure amounted to a repudiatory breach. The Employment Tribunal should have borne in mind that medical evidence was that the Claimant was unfit for any work, including part‑time work, at least until the summer of 2008; and that the Respondent had attempted to meet the Claimant on at least two occasions to discuss the situation further, and the Claimant had declined to attend the meetings.[29]It was submitted that the Employment Tribunal should have explained why the Respondent’s proposal (which was made and accepted) that the Claimant should come into Burrows House for two to three hours to see how she coped was not reasonable.[30]The Respondent complained that the Employment Tribunal had referred to an out‑of‑date ACAS code which it quoted from the IDS brief and Morgan . The case in any event was not in point, and if it was relied upon as authority for the proposition that procedural steps such as trial periods at home or formulating proposals for rehabilitation could be reasonable adjustments it no longer was good law.[31]It was also observed that no employer could take someone back for any kind of work unless cleared to work by their GP. Otherwise, there would be insurance and health and safety issues. The purpose of the meeting called for 25 June 2008 was to discuss possible steps that might enable the Claimant in due course to return to work.[32]In relation to unfair dismissal on the basis of breach of the implied term of trust and confidence, the Employment Tribunal, it was submitted, had not applied the objective test as to whether the Respondent acted in breach of the implied term of trust and confidence but a subjective test of whether it was reasonable for the Claimant to hold the belief set out in her letter of 23 June 2008. We were referred to the speech of Lord Nicholls in Malik v BCCI [1997] IRLR 462 . The Employment Tribunal wrongly asked itself whether the Respondent’s failure to comply with its duty had reasonably caused the Claimant to lose trust and confidence; it looked at the matter from the Claimant’s perspective rather than objectively.[33]It was submitted that not every failure to comply with the duty to make reasonable adjustments amounted to a breach of the implied term; reference was made to Greenhof v Barnsley Metropolitan Council [2006] IRLR 97.[34]In relation to the “last straw,” the Employment Tribunal did not address the issue as to whether the letter could properly amount to a “last straw.” The last straw had to be more than innocuous, even if the Claimant had interpreted it genuinely but mistakenly as hurtful and destructive of trust. Further, it had to be the last in a series of acts and incidents which cumulatively amounted to a repudiation of the contract. Also, the letter of 18 June 2008 was entirely innocuous; the final paragraph was standard and not new to the Claimant.[35]The Employment Tribunal did not address the issue that at the time of her resignation the process of considering adjustments was a continuing one.[36]Further, the Employment Tribunal had not given adequate reasons to explain what proposals for non‑productive work should have been made and when, and how failure to make such proposals amounted to a repudiatory breach of contract. The Claimant’s submissions and cross­‑appeal[37]The adjustment relied upon, it was submitted, was not a process but an adjustment. The Employment Tribunal had the case of Rowan well in mind. If the Employment Tribunal had failed to record what the outcome may have been of the steps, it suggested in paragraph 50 the appropriate course was to remit the matter for further consideration by the Employment Tribunal under the Burns/Barke procedure.[38]The Employment Tribunal should have asked itself if the burden of proof had shifted to the Respondent in relation to rehabilitative work; the Respondent had failed to satisfy the burden of proof that it had made reasonable adjustments.[39]Even if there was no duty on the part of the Respondent to make reasonable adjustments, the Employment Tribunal was entitled to conclude that the failure to provide rehabilitative work was a breach of the duty of trust and confidence, and would thus justify constructive dismissal.[40]The cross‑appeal was to the effect that the PCP of requiring the Claimant to return to her substantive post or face dismissal placed her at a substantial disadvantage; this would have been alleviated by a career break. A career break was a reasonable adjustment and was one of the issues set out for the Employment Tribunal to consider; see page 76 at 4:4. A career break had been suggested by the occupational health physician, Dr Gallagher, to Ms Whitehead, as it would give the Claimant the chance of recovery. In those circumstances it would have been a reasonable adjustment. The Employment Tribunal never adjudicated upon this.[41]Mr Grundy responded to the cross‑appeal by submitting that the Employment Tribunal was correct at paragraph 36 when it held that, “a career break was not designed to cover the situation obtaining and was not a reasonable adjustment.”[42]The Claimant had made no submissions on this point, and in fact never applied for a career break. The PCP was not as the Claimant had asserted, but as the Employment Tribunal had found at paragraph 49, namely that it was expected the Claimant could do her full role in contracted hours. There was no reference in that PCP to any failure to comply automatically leading to dismissal. The effect of the PCP that prevented the Claimant returning to work would not have been alleviated by a career break; it would not have enabled the Claimant to return to work or mitigate or alleviate the effect of the substantial disadvantage caused to her by the PCP. Further, the career break would have suspended any obligation on the Claimant to undertake any duties, and would not have been a reasonable step to prevent the disadvantage caused by the PCP. A PCP would have been outside the terms of section 18(b)(ii) of the Act; the terms of the Respondent’s employment break policy made clear that the purpose of the policy was to provide an opportunity for the Respondent’s staff:
“[...] to tailor their working life to meet commitments in family life (for example, childcare, elder care, care for another dependent, training, study leave or work abroad) while maintaining and developing their CARRERS [sic] to meet their individual needs and those of the Trust. Other reasons for an employment break will be considered on their merits [...].”
[43]The Employment Tribunal did not address this policy. Further, the statutory code of practice makes no reference to a career break as being a possible reasonable adjustment. The law[44]Discrimination is defined in section 3A of the Disability Discrimination Act 1995 :
“(1) For the purposes of this Part, a person discriminates against a disabled person if- (a) for a reason which relates to this disabled person’s disability, he treats his less favourably than he treats or would treat others to whom that reason does not or would not apply, and (b) he cannot show that the treatment in question is justified. (2) For the purposes of this part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person. (3) Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial [...]. (5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.”
[45]Section 4A provides for the duty placed on employers to make adjustments:
“(1) Where- (a) a provision, criterion or practice applied by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect. (2) In subsection (1), ‘the disabled person concerned’ means- (a) in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment; (b) in any other case, a disabled person who is- (i) an applicant for the employment concerned, or (ii) an employee of the employer concerned. (3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know- (a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or (b) in any case, that the person has a disability and is likely to be affected in the way mentioned in subsection (1).”
[46]Further provision as to reasonable adjustments is to be found at section 18B:
“(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to- (a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed; (b) the extent to which it is practicable for him to take the step; (c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities; (d) the extent of his financial and other resources; (e) the availability to him of financial or other assistance with respect to taking the step; (f) the nature of his activities and the size of his undertaking; (g) where the step would be taken in relation to a private household, the extent to which taking it would- (i) disrupt that household, or (ii) disturb any person residing there. (2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments- (a) making adjustments to premises; (b) allocating some of the disabled person’s duties to another person; (c) transferring him to fill an existing vacancy; (d) altering his hours of working or training; (e) assigning him to a different place of work or training; (f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment; (g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person); (h) acquiring or modifying equipment; (i) modifying instructions or reference manuals; (j) modifying procedures for testing and assessment; (k) providing a reader or interpreter; (l) providing supervision or other support.”
[47]At this point we stress that reasonable adjustments are limited to those that prevent the PCP or feature placing the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled. Reasonable adjustments are primarily concerned with enabling the disabled person to remain in or return to work with the employer.[48]The PCP in this particular case as found the Employment Tribunal at paragraph 49 was the expectation the Claimant would perform her full role within the contracted hours, and that she was thereby placed at a substantial disadvantage by reason of her disability. The effect of the PCP and the nature and extent of the substantial disadvantage were that she was unable to multi‑task, deal with clients, set up emotional barriers, and, as we have noted, would have to “climb a mountain” in order to perform her role. She was unable to work in a noisy or busy environment. Any proposed reasonable adjustment must be judged against the criteria that they must prevent the PCP from placing her at the substantial disadvantage.[49]Adjustments that do not have the effect of alleviating the disabled person’s substantial disadvantage as we have set it out above are not reasonable adjustments within the meaning of the Act. Matters such as consultations and trials, exploratory investigations and the like do not qualify.[50]This was made clear by Elias J in Tarbuck . He made clear there was no such duty as a duty to consult; this would not amount to a reasonable adjustment in itself. He observed at paragraph 72 of the decision that a failure to consult might make it difficult or impossible for an employer to say that a particular adjustment would not be reasonable. An employer cannot use the lack of knowledge that would have resulted from consultation as a shield to defend a complaint he has not made reasonable adjustments. Underhill P followed this dictum in HM Prison Service v Johnson [2007] IRLR 951 .[51]In Rowan I had this to say about a trial period of home‑working:
“61. We do not decide the question as to whether the trial period of home‑working was capable of constituting a reasonable adjustment because for some reason the matter was not fully argued. However, we have considerable difficulty in seeing how an investigation or trial period as such can be regarded as a reasonable adjustment; we do not need to decide the point but express our doubts. A trial period is a procedure that an employer should sensibly adopt in an appropriate case but does not appear to be an adjustment as such. It is not a procedure specifically referred to in S4A or S18B(2). As has been observed in other cases what S4A and S18D(2) envisage is that steps will be taken which will have some practical consequence of preventing or mitigating the difficulties faced by a disabled person at work. It is not concerned with the process of determining what steps should be taken; it is prudent for employers to adopt a trial period in an appropriate case to see whether home‑working for example is a reasonable adjustment. An employer who has failed to investigate the possibility of home‑working by a trial period may find it difficult to establish that home‑working was not a reasonable adjustment. We consider that a trial period is akin to a consultation, or the obtaining of medical and other specialist reports; these do not themselves mitigate or prevent or shield the employee from anything. They serve to better inform the employer as to what steps, if any, will have that effect, but of themselves they achieve nothing. In circumstances such as the present case, where there is an issue as to whether home‑working would be a reasonable adjustment a trial period of home‑working is a tool which may enable the parties to determine whether home‑working is in fact capable of being a reasonable adjustment that would, in this case, prevent or mitigate the difficulties said to be faced by the claimant when working in the Respondent’s office.”
[52]Newcastle City Council v Spires (supra), was a case where the Claimant was unable to work and had taken out a grievance. The issues had been agreed and recorded; the Employment Tribunal dealt with issues that had not been raised. HHJ Richardson accepted that the Employment Tribunal should have concentrated on the agreed issues, and that it was impermissible to come up with its own solution without giving the parties the opportunity to deal with the matter. At paragraph 27 counsel for the Appellant in that case submitted that the Tribunal had erred in law in the way it had dealt with the issue of medical redeployment. It did not find that Mrs Spires should have been medically redeployed. It found only that medical redeployment should have been “explored” or “considered.” This was a matter preparatory to substantive action being taken and, on the authority of Tarbuck , was not a free‑standing reasonable adjustment of the kind contemplated by the Act:
“34. The giving of early assurances to Mrs Spires was not a reasonable adjustment put forward on behalf of Mrs Spires; and the Tribunal ought not to have found the Council in breach of its duty to make reasonable adjustments on this basis.”
[53]We have considered London Borough of Hillingdon v Morgan . Although at paragraph 28 the Employment Tribunal said, “they [the employers] are required to see if they can make reasonable adjustments so as to enable a person who is disabled to be retained in their employment,” the case is of little assistance beyond being authority for the proposition that a phased return to work may be a reasonable adjustment. It is not authority for the proposition that rehabilitation is a reasonable adjustment.[54]We now turn to consider the authorities on breach of the implied term of trust and confidence.[55]We start by referring to Buckland . HHJ Peter Clark pointed out the proof error in the report of Mahmud v BCCI [1997] ICR 606 . HHJ Clark observed:
“[...] on a breach of the implied term of trust and confidence requires the employee to show that the employer has, without reasonable and proper cause conducted himself in a matter calculated or likely to destroy or seriously damage the relationship of confidence and trust between them. See Mahmud [...].”
[56]The relevant passage from the speech of Lord Steyn, amended to take account of the proof error of the use of the word “and’ for the use of the word ‘or’, wherein italicised:
“[...] For convenience I shall set out the [implied] term again. It is expressed to impose an obligation that the employer shall not: ‘[...] without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.’”
[57]The conduct must be such, it must be stressed, as to amount to a repudiatory breach of contract so the individual act or omission, or the cumulative effect of a number of acts or omissions, must be significant. The test, as appears from the Judgment of Dyson LJ in the passage we shall quote from Omilaju , is objective (paragraph 14):
“4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must ‘impinge on the relationship in the sense that, looked at objectively , it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer (emphasis added). 5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para [480] in Harvey on Industrial Relations and Employment Law: ‘Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the ‘last straw’ which causes the employee to terminate a deteriorating relationship.’”
[58]We also refer from the lengthy and well‑known passage cited by Mr Grundy from the Judgment of Dyson LJ: “19. The question specifically raised by this appeal is: what is the necessary quality of a final straw if it is to be successfully relied on by the employee as a repudiation of the contract? When Glidewell LJ said that it need not itself be a breach of contract, he must have had in mind, amongst others, the kind of case mentioned in Woods at p 671F‑G where Browne‑Wilkinson J referred to the employer who, stopping short of a breach of contract, ‘squeezes out’ an employee by making the employee's life so uncomfortable that he resigns. A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase ‘an act in a series’ in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.[20]I see no need to characterise the final straw as ‘unreasonable’ or ‘blameworthy’ conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and , perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.[21]If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.[22]Moreover, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee's trust and confidence has been undermined is objective (see the fourth proposition in para 14 above). ” Conclusions - general[59]We now turn to our conclusions. It will be recalled that the reasonable adjustment found by the Employment Tribunal was that the Respondent should have produced something the Claimant could take to ask her GP to sign off for, such as two to three times per day, two to three times per week as a form of rehabilitation even if not productive work, some form of “light duties”. The short answer to this appeal is that this was not a reasonable adjustment. Similarly, so far as the cross‑appeal is concerned, the suggestion that the Respondent should have permitted the Claimant to take a career break was equally not a reasonable adjustment for the reasons given by Elias J in Tarbuck and given by me in Rowan .[60]I have had the benefit of sitting with two lay members who have considerable industrial experience. Their view on the facts before this Employment Tribunal was that this employer did not have a closed mind; it did what an employer should have done, and explored retraining the Claimant in IT (something she was unwilling to undertake). It proposed her attending at Burrows House to keep in touch with fellow employees; something she did not feel able to do. It ascertained that there was no job which the Claimant was capable of doing at the time, whether part‑time or otherwise, let alone her original post. The Claimant never disagreed with any of the letters sent to her, in which the efforts made by the Respondent had been set out. She chose not to attend two meetings intended to discuss possible adjustments. The Claimant could not even attend Burrows House simply to meet colleagues because she found this too stressful.[61]The career break that was argued for in the cross‑appeal is incapable of being a reasonable adjustment. My colleagues have never heard of a career break being used in the way the Claimant suggested. They would regard it as highly irregular and contrary to proper and recognised industrial practice, let alone good industrial practice. It would be contrary to the terms of the career break policy which Mr Grundy referred to (page 146 of our bundle) and would in no way be a substitute for long‑term sick leave. Had the Respondent proposed that the Claimant should be transferred from long‑term sick leave to a career break, the Claimant would have had legitimate cause for complaint, for being moved from long‑term sickness absence with benefits, including at the time half pay, to an unpaid career break which in no way would have prevented the disadvantage caused to the Claimant by the PCP, as found by the Employment Tribunal, or alleviated her inability to multi‑task, deal with clients, set up emotional barriers, or “climb the mountain.”[62]As Mr Clancy pointed out during the course of submissions, how would a change of label from long‑term sick leave to career break enable the Claimant to return to work? Mrs Gallico pointed out that transfer to a career break could prejudice the Claimant by frustrating the possibility of ill‑health retirement, because she would not have been shown to be sick. She would also of course lose her half pay. We are all agreed that a transfer would have set a highly undesirable precedent. Proposal for non‑productive work – unfair dismissal[63]Suggestion by the Employment Tribunal that the Respondent should have produced something the Claimant could have taken to ask her GP to sign her off for as being a form of rehabilitation is also not a reasonable adjustment for the same reasons as the career break. It simply would not mitigate the effects of the PCP.[64]We also accept the Respondent’s submission that the proposal made the Employment Tribunal at paragraph 50 was not Meek compliant because the Employment Tribunal had failed to give adequate reasons to explain what proposals for non‑productive work should have been made and when, and how these would have prevented or alleviated the substantial disadvantage identified; and, further, how such proposals were consistent with section 18B or with the code of practice. The Employment Tribunal should also have explained why the failure of the Respondent to make such a proposal, together with other matters, could amount to a repudiatory breach of contract. It is necessary, of course, to bear in mind that the Claimant’s GP had said she was unfit for any work including part‑time work until the summer of 2008.[65]In any event and independently the proposal made by the Employment Tribunal was not an issue that had been identified and argued, and for that reason alone the Employment Tribunal should not have considered the point. Breach of confidence last straw[66]The decision of the Employment Tribunal that there had been a constructive dismissal is wrong on three separate grounds. There was no “last straw”; the letter of 18 June 2008 was wholly innocuous. The Respondent’s earlier behaviour was not repudiatory. The fact that there was a reference of the possibility of termination on the grounds of capability was both standard and reasonable in the circumstances. The Employment Tribunal’s findings in relation to constructive dismissal depended on the failure to make reasonable adjustments. There was no such failure.[67]In any event the Employment Tribunal applied a subjective as opposed to an objective test to determine if there was a breach of the implied term; see the passage from the speech of Lord Nicholls in Malik set out in the passage from Omilaju in the Judgment of Dyson LJ we quoted above. The Employment Tribunal used the language of subjective intent (whether it was reasonable for the Claimant to hold the belief) expressed in her letter of resignation which we have quoted from earlier.[68]Although it is not necessary so far as this decision is concerned, we would observe that in our opinion the reasoning of the Employment Tribunal in relation to constructive dismissal was not Meek compliant as submitted by Mr Grundy. The Employment Tribunal had also not given consideration to the fact that the Claimant was on indefinite half pay, and the reasonable adjustments were to be discussed and were under consideration at a time when the Claimant was still unable to do any work. There is no explanation from the Employment Tribunal as to what proposals for non‑productive work should have been made and when, and how a failure to make such proposals could amount to a repudiatory breach of contract.[69]In the circumstances, the appeal must be allowed, and the cross‑appeal must be dismissed.