(1) CROFT VETS LTD (2) MS JUDITH JOYCE (3) MR MALCOLM NESS v MRS LYNDA BUTCHER [2013] UKEAT 0430_12_0210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2013] UKEAT 0430_12_0210Case No Appeal No. UKEAT/0430/12/LA UKEAT/0562/12
Between
(1) CROFT VETS LTD (2) MS JUDITH JOYCE (3) MR MALCOLM NESSAPPELLANTMRS LYNDA BUTCHERRESPONDENT
Before
Mr Justice Supperstone Ms V Branney Mr G LewisDate 2 October 2013
[1]APPEARANCES For the Appellants MR SEAMUS SWEENEY (of Counsel) Instructed by: Messrs Sintons Solicitors LLP The Cube Barrack Road Newcastle-upon-Tyne Northumberland NE4 6DB For the Respondent MS KATHERINE EDDY (of Counsel) Bar Pro Bono Unit SUMMARY DISABILITY DISCRIMINATION Disability related discrimination Reasonable adjustments The Respondent was employed by the Appellants as a reception and finance manager. She suffered from work-related stress and severe depression. She resigned from her employment when the Appellants did not act on the recommendations made by the clinical psychiatrist to whom they referred her. The Employment Tribunal held her claims that the Appellants failed to make reasonable adjustments to be well-founded, that she was unfairly constructively dismissed and that her dismissal was an act of discrimination arising from disability. The EAT dismissed the Appellants' appeal on liability (save for the finding that the dismissal was an act of discrimination arising from disability as that was not one of the agreed issues before the ET) and the appeal on remedies against the award of compensation. The EAT, inter alia, found that there was no error by the ET in identifying the relevant PCP; and the ET correctly found that the Appellants had not made reasonable adjustments by failing to pay for the Respondent to have private psychiatric services and counselling. The issue was not the payment of private medical treatment in general, but, rather, payment for a specific form of support to enable the Respondent to return to work and cope with the difficulties she had been experiencing at work. THE HONOURABLE MR JUSTICE SUPPERSTONE Introduction Croft Vets Limited and their two directors, Ms Judith Joyce and Mr Malcolm Ness who are married to each other, appeal against the judgment of an employment tribunal sitting at North Shields, chaired by Employment Judge Hargrove, and sent to the parties on 17 May 2012 which held that the claims by Mrs Butcher (who we shall refer to as "the Claimant") of failures to make reasonable adjustments were well-founded in two respects, that the Claimant was unfairly constructively dismissed and that dismissal was an act of discrimination arising from disability. The Appellants further appeal against the tribunal's judgment on remedies sent to the parties on 18 September 2012. Factual background[2]On 1 April 1996 the Claimant commenced her employment as a receptionist at the Appellant's live veterinary practice. She was then aged 36. At that time the First Appellant was a partnership of which the Second and Third Appellants were partners. There were then four surgery branches. Over the years the Claimant was promoted. In 2002 her job title became that of finance and reception manager, which title she held at the time of her resignation. The practice expanded and new branches were opened. In 2005 the practice was incorporated as the limited company Croft Vets Limited, the First Appellant, and the Second and Third Appellants became directors.[3]During the course of her employment the Claimant was the subject of a formal appraisal system. She received appraisal letters, the last one being dated 31 January 2008. Thereafter there were monthly management meetings and, as the tribunal found, plenty of opportunity to discuss any problems which arose on an informal basis.[4]During 2007 a decision had been taken by the Appellants to open a new purpose built hospital which was also to house the main administration of the practice. The hospital did not in fact open until November 2008 but there is a reference in the appraisal letter of 22 July 2007 to the extra work this development created for the Claimant. Both the Second and Third Appellants were stated to be "very aware that your job is so multi-faceted that it is not sustainable in its present form with the additional responsibilities of the new hospital".[5]At about the time the new hospital and administrative centre opened on 10 November 2008 the Claimant had two other added responsibilities. The first was the implementation of a new BT phone system that had teething problems which continued up to February 2010 and beyond. The second was the overseeing by the Claimant of the introduction of a new German IT system which also had teething problems. The tribunal accepted that these additional responsibilities placed extra pressure upon the Claimant.[6]Further the tribunal accepted that from late 2008 the Claimant's mother suffered from a serious illness that would have had an adverse effect upon the Claimant's ability to perform her full duties in late 2008 and 2009.[7]One responsibility the Claimant had was the reporting of bad debt. Bad debt was defined as all monies then owing to the practice, so any amount owed to the First Appellant from insurance companies was classified as bad debt. The Appellants claim that the Claimant was guilty of blameworthy conduct in failing accurately to report the substantial increase in the bad debt position. There was a meeting between Miss Joyce and the Claimant on 24 March 2010 when the Claimant was instructed to concentrate solely upon working in her office on debt collection duties and was relieved of her other duties which were re-distributed.[8]At about this time the Claimant and her husband completed their protracted house move. The Claimant took a week off from 19 April 2010. She returned to work on 26 April. The tribunal note at paragraph 4.21 of the decision, "significantly we find, sometime during the early part of that week two members of staff approached Miss Joyce to express concerns that the Claimant was sitting in her office staring out of the window in tears". Miss Joyce and Mr Ness had a joint meeting with the Claimant on 29 April. That was the last day that the Claimant worked for the Respondent. She went off sick with depression on 4 May and never returned to work.[9]On 4 May 2010 the Appellants wrote to the Claimant:
"We are sorry that you are not well enough to attend work today especially as we had arranged to meet with you. As that will not now be possible, I am writing to summarise our discussions last Thursday. As you are aware from last Thursday and previous meetings we think that you have not been coping with your job very well for some considerable time now. We detailed some of our concerns at this meeting and offered you two choices. The first was to continue with your job according to your current job description, and with our support, to take steps to improve your performance and further develop your skills of delegation. The second was to accept a narrowing of your job description to financial controller at a lower salary of £25,000. This was to ensure that the finances of the practice were kept under control at a very important time. With the removal of managerial duties relating to reception and personal assistant, we calculate that this would be half as much work for two-thirds of the salary. We thought that, with time and the expansion of the practice, it would be possible for the responsibility of this altered role to grow and to attract a higher salary, conditional on performance."
The letter concluded, "this offer remains open and we hope to discuss this with you further as soon as you are able. … We would like to take this opportunity to wish you a speedy recovery".[10]On 30 April 2010 the Claimant visited her GP who recorded that she had had work stress for two years. The GP's notes for 5 May 2010 record that the Claimant had "classical depression".[11]Miss Joyce next wrote to the Claimant on 4 June 2010. The trigger for the letter appears to have been the Claimant's latest sick note for four weeks obtained on 2 June. The Appellants expressed a wish to refer the Claimant to Dr Parry, a private consultant psychiatrist whom they had used in the past for staff to prepare a report on her condition "to allow us to consider whether there are any steps we can take now to facilitate your return to work". The tribunal cites out verbatim the penultimate paragraph of the letter:
"Finally, prior to your illness, we were discussing in some detail a number of modifications to your duties in order to allow you to better cope with your role and to improve your performance. Indeed, the information advice that we will hopefully receive from Dr Parry in due course will likely be of benefit in these discussions. That said, please do not let these discussions be a cause for concern for the time being. We can easily pick up the discussions when you are fit and well enough to do so on your return to work. The important thing is that you follow the medical advice provided to you to date and I hope that this will ensure that you will be back with us soon."
[12]Dr Parry saw the Claimant on 3 August 2010 and prepared his first report on 19 August 2010, a copy of which was provided to the Claimant. Under the heading "Summary and Opinion" Dr Parry wrote:
"It is relevant that Mrs Butcher has a family history of depression in both her father and her brother. Based on my interview with her, I formed the impression that predominantly work-related stress had triggered a severe depressive episode with marked anxiety. Although there were other stresses around (her mother's health, house moves) I consider that these were of significantly less stress than the work issues. Treatment with anti-depressant medication in the form of Citalopram 40mg daily has led to some improvement, but there is a still a long way to go. I consider that, optimistically, Mrs Butcher will require a further three to four months off work, and possibly considerably longer. In order to optimise her treatment, I would recommend that the Practice gives sympathetic consideration to funding further sessions. These sessions should include ones with an experienced Clinical Psychologist, and I would suggest Jane McCarthy based at the Lansdowne Clinic in Newcastle, for work including cognitive behavioural therapy. Further details including costing, can be obtained from the Lansdowne Clinic… In addition I suggest that consideration is given to funding a further six psychiatric sessions at a cost not exceeding £750, in order to optimise Mrs Butcher's treatment with anti-depressant medication, and in order to provide an overview of her progress. I should point out, however, that even with this additional treatment, there is no guarantee that Mrs Butcher will improve to a degree where she is able to return to work, though obviously I am hopeful that this would be the outcome."
[13]On 8 September 2010 Miss Jobling, on behalf of the Appellants, wrote a further enquiry letter to Dr Parry to which he replied on 15 October 2010, sending a copy of his letter also to the Claimant. The tribunal observes (at para 4.29):
"Again its contents are of considerable importance. In particular he identified more specifically that his diagnosis was of severe depressive episodes with marked anxiety under F32.2 of the ICD10."
Miss Jobling responded to that letter on 22 October posing further questions. Dr Parry did not reply to that letter promptly, in fact he did not do so until 20 January 2011. There was an issue as to the extent to which the Appellants chased up Dr Parry for a response. However, events were overtaken by the Claimant's resignation letter of 23 November 2010.[14]In her resignation letter of 23 November 2010 the Claimant wrote:
"I am resigning my employment with Croft Vets with immediate effect. I am disappointed that after 14 years of committed employment with you I feel forced into making this decision. I have not had any communication from yourselves since Dr Parry wrote to you. In the past you have set great store by Dr Parry's opinion and yet in my case you have chosen to ignore his diagnosis. It appears you sent me to see him not to assist my recovery but to check I was indeed suffering from depression. You then chose to further question Dr Parry on his diagnosis of work-related stress and severe depression and once again chose to ignore his recommendations. … You have caused my stress and depression. My workload in itself had become intolerable notwithstanding all of the reception work I was needed to do. When I commenced the role of finance and reception manager the Croft Vets consisted of four branches, this now stands at nine branches and the hospital. You said yourselves that a mistake had been made not recruiting another receptionist for the hospital opening. There were many days when I was unable to do any of my job for helping out on reception. Losing three experienced receptionists in the middle of 2009 made my job even more impossible. I had found it impossible to keep up with my normal tasks during the construction of the hospital when I also had the financial responsibility for the hospital among other aspects of the build. The workload increased even more once we had moved into the hospital, taking on the role of support for the new computer system, the first of its kind in Britain, whilst attempting to resolve the ongoing problems with BT. … You caused me to have this breakdown… Aware that I was showing signs of depression and burnout you ignored your duty to care towards me. My GP's analysis confirmed I was suffering from depression and burnout. You questioned their diagnosis and required me to attend Dr Parry, your clinical psychiatrist. He confirmed that I am suffering from work-related depression and outlined a course of treatment he recommended to you. Rather than accepting Dr Parry's diagnosis and recommendations you questioned your responsibility as to the cause. Dr Parry has now confirmed his diagnosis, clearly stating the references he used for his conclusions and re-stating his recommendations to you regarding my treatment which you have chosen to ignore. I believe you have discriminated against me because of my disability."
[15]The Appellants replied on 3 December 2010:
"We have received your letter dated 23 November 2010 and are very sorry that you have taken the decision to resign. We note that you have made a number of allegations which in this letter we seek to address and hope that having considered what we have to say in this letter, you may reconsider your decision. … … For reasons that we set out below in more detail, however, the medical information given by Dr Parry was still inconclusive and made it difficult for us to act upon. … Once we received Dr Parry's report (which indicated that he had no understanding of a prognosis and indicated that he would have to see how you reacted to the course of medication) we did approach him to try to understand how long it ordinarily takes for the medication to have some impact. Again this was merely to understand the likely timelines and be able to plan accordingly. There was not any other motive as you suggest in your letter. Ultimately, there has not been any delay in accommodating his advice as we are not obliged to fund a private course of treatment and in any event, his conclusion was clearly that this may not be fruitful. Further, throughout this period, you have not been well enough to be able to work and as Dr Parry concluded in his report, he had to wait to see how you reacted to the medication before he could give any guidance as to the prognosis of your condition. As such, there was not a great deal that Croft could do for you at the time Dr Parry's report was received or indeed, at the current time, as we have not yet received a response to our last letter to Dr Parry and so this delay has been out of our hands."
[16]On 20 January 2011 Dr Parry wrote:
"As I have previously said, it is not possible to say how long her symptoms are likely to last, because this depends on her response to treatment. I have also said that with appropriate treatment, she should certainly improve significantly from the depression, but whether or not she will make a complete recovery will remain to be seen. It is simply not possible to provide you with more specific information. Obviously I have considerable experience in dealing with similar cases, based on over twenty years experience as a Consultant in General Adult Psychiatry. Based on my experience, I can say that it would take between three months and two years (average one year) undergoing treatment with an experienced Psychiatrist and an experienced Psychologist before she would be potentially fit to return to work. However, given that many of the factors that triggered the depression were work-related, and therefore beyond her immediate control, there must be a significant chance that she would not recover sufficiently to enable her to return to work. I would rate the chances of her being able to return to work as no greater than 50/50."
The statutory framework[17]The relevant statutory provisions are those contained in the Disability Discrimination Act 1995 (as amended) ("the 1995 Act"). The Equality Act 2010 came into force on 1 October 2010. For present purposes there are no material differences between the provisions in the two Acts. Section 1 of the 1995 Act provides that "a person has a disability if he has a physical or mental impairment which has a substantial and a long-term adverse effect on his ability to carry out normal day to day activities".[18]Paragraph 4 of Schedule 1 to the 1995 Act prescribes a list of capacities one or more of which have to be affected before a tribunal can find the impairment adversely affects normal day to day activities. The material ones in the present case are (a) mobility, (f) speech, hearing or eyesight and (g) memory or ability to concentrate, learn or understand. The adverse effects of normal day to day activities are substantial if they are more than minor or trivial. As to long-term effects, paragraph 2 of Schedule 1 provides as follows:
"(i) The effect of an impairment is a long-term effect if (a) it has lasted at least 12 months; (b) the period for which it lasts is likely to be at least 12 months; …"
[19]Paragraph 6 of Schedule 1 provides:
"(i) an impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day to day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

(i) measures includes, in particular, medical treatment…"

[20]Section 4A(1) of the 1995 Act provides:
"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."
[21]Section 4A(3)(b) of the 1995 Act provides:
"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… (b) in any case, that that person has a disability and is likely to be affected in the way mentioned in sub-section (1)."
[22]Section 18B of the 1995 Act provides, so far as is material:
"18B – Reasonable adjustments: supplementary (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; … (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— (b) allocating some of the disabled person's duties to another person; (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); (l) providing supervision or other support."
[23]The relevant provisions are found now in section 20 and Schedule 8 to the Equality Act 2010 . Section 20 provides in material part: "(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements.

(A) The Appeal on Liability Grounds of appeal

[24]Mr Sweeney, for the Appellants, advances five grounds of appeal in the liability appeal. "(1) The tribunal erred in identifying a provision, criteria or practice (PCP) that the Claimant return to work to perform the essential functions of her job and in holding that it had failed to make reasonable adjustments to alleviate the disadvantage caused to the Claimant by such a PCP. (2) That in considering the duty to make reasonable adjustments, the tribunal erred in failing properly to apply the statutory provisions as explained by this tribunal in the case of Department for Work and Pensions v Alam [2010] ICR 665 . (3) The tribunal erred in holding that a failure to pay for private cognitive behavioural therapy and to engage with the Claimant during her absence amounted to failures to make reasonable adjustments in circumstances where such therapy was available to the Claimant through the NHS, but had never been taken up by her and where the Claimant had refused to engage with the Appellants despite their attempt to contact her. (4) That the tribunal erred in holding that a failure to pay for private cognitive behavioural therapy and to engage with the Claimant during her absence amounted to repudiatory conduct on the part of the First Appellant, so as to entitle the Claimant to terminate her contract of employment without notice in circumstances where such therapy was available to the Claimant through the NHS but had never been taken up by her and where the Claimant had refused to engage with the Appellants despite their attempts to contact her. (5) The tribunal erred in holding that the Claimant's constructive dismissal was an act of unlawful discrimination contrary to section 15 of the Equality Act 2010. No such claim was advanced by the Claimant and the Appellants therefore had no opportunity to make representations thereon. The tribunal provides no reasoning whatsoever for its conclusion and the conclusion is plainly wrong in any event." The Parties' Submissions and Discussion[25]We shall consider each ground of appeal in turn. Ground 1: alleged error in identifying the relevant PCP[26]The Appellants contend that the Tribunal erred in finding that they applied a PCP that the Claimant "be able to return to work performing the essential functions of her job" (para 6.5). The Tribunal's identification of this PCP is said to be inconsistent with the Tribunal's finding earlier in its judgment at paragraph 6.4 that the Claimant had been required to choose between carrying out her full duties or accepting limited duties at a reduced salary.[27]In our view the Tribunal did not err in its approach to the relevant PCP. We accept the submission made by Ms Eddy, on behalf of the Claimant, that whether the Claimant was working on full or restricted duties, the Tribunal was entitled to find that there was a PCP that she be able to return to work performing the essential functions of her role.[28]In any event there is no inconsistency in the Tribunal's approach. We accept Ms Eddy's submission that the tribunal did not find that the Appellants required the Claimant to return to perform the essential functions of her Reception and Finance Manager job. On the contrary the tribunal noted at paragraph 6.4 of the decision when considering what was said to be a requirement to choose between working her full duties or working on limited duties at reduced pay:
"it is not clear that this requirement was actually imposed rather than stated as an intention… As the [Appellants'] second letter of 4 June 2010 demonstrated, there was an intention to refer to Dr Parry 'to allow us to consider whether there are any steps we can take now to facilitate your return to work…'."
[29]In the alternative Mr Sweeney submits that assuming the PCP applied by the tribunal was that the Claimant be able to return to work to perform the essential functions of her job, the offer of limited duties at a substantially reduced salary was a reasonable adjustment to that PCP. We reject this submission. The duty under section 20 of the Equality Act 2010 is, as Ms Eddy observes, to take "such steps as it is reasonable to have to take to avoid the disadvantage". The tribunal found as follows (at para 6.4):
"…applying the Romec test (as modified) we do not consider that the adjustment would have removed the Claimant's disadvantage and assisted her earlier return to work at that stage. There was cogent evidence that the Claimant was unable to perform the limited duties even before she went off sick and when on full pay. The reduction in pay of itself would not have made it any more difficult or less likely. We find that the Claimant's sudden breakdown over the weekend of 30 April to 2 May 2010 would have occurred even if the Respondent had offered the desired adjustment."
[30]In paragraph 6.5 of the decision the tribunal state:
"… it is necessary … to identify the PCP which placed the Claimant as a disabled person at a substantial disadvantage. We find that it was that the Claimant be able to return to work performing the essential functions of her job. This is confirmed by the Archibald case. As of May/June 2010 onwards, the Claimant was clearly unable to comply with that requirement."
Mr Sweeney criticises the tribunal's reasoning in that short reference to the decision in Archibald v Fife Council [2004] ICR 954 . He submits it says nothing about the nature and extent of the disadvantage suffered by the Claimant by the application of a particular PCP. In our view the relevance of Archibald is contained in the opinion of Lord Rodger at para 42 where he states:
"What actually happens if an employee becomes so disabled that she cannot perform the essential functions of her job is that, under her contract of employment, she is liable to be dismissed. That is the substantial disadvantage she suffers."
The Claimant's disability placed her at a substantial disadvantage in comparison with a non-disabled person in the same employment who was not at risk of being dismissed on the ground that, because of disability, he was unable to do the job he was employed to do (see Lord Hope at para 12). Ground 2: the application of Secretary of Work and Pensions v Alam[31]In Alam Lady Smith stated at paragraph 17:
"… it seems to us clear, as a matter of statutory interpretation and giving the language of those provisions their ordinary meaning, that to ascertain whether the exemption from the obligation to make reasonable adjustments provided for by section 4A(3)(b) of the 1995 Act applies, two questions arise. They are: (1) did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? If the answer to that question is: 'no' then there is a second question; namely (2) ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?"
[32]The tribunal made no finding of actual knowledge; it is therefore the second question which is relevant to this appeal.[33]Mr Sweeney submits that the tribunal was satisfied that at the time of the conversation between Ms Joyce and Mr Ness before the meeting on 29 April 2010 the Appellants "could reasonably be expected to know that the Claimant was clinically depressed, even though it was not diagnosed until 5 May 2010, and that it amounted to a disability" (para 5.8). However the tribunal, Mr Sweeney observes, does not there specifically address the issue, of whether the Appellants knew or ought reasonably to have known of the effects of the Claimant's depression, namely that she was liable to be disadvantaged by the practice of requiring her to perform the essential functions of her job.[34]This criticism is not to the point. In our view it is clear from paragraph 6.5 of the decision that the tribunal's findings on reasonable adjustments are premised on the Appellants' failure to implement the recommendations of Dr Parry, notwithstanding his advice in his reports of 19 August and 15 October 2010 to the effect that the Claimant was suffering from a severe depressive episode triggered by work-related stress. Having received those reports the Appellants knew that the Claimant had a disability and was likely to be placed at a substantial disadvantage in fulfilling the essential functions of her role. The references in paragraph 6.4 to events in March and April 2010 led the tribunal to the conclusion the Appellants had the requisite knowledge of her disability earlier. However the relevant time for the purpose of identifying the discriminatory treatment was correctly, in our view, found by the tribunal to be early September 2010 (or at the very latest by the time of receipt of Dr Parry's letter of 15 October 2010). The tribunal found that the Appellants should have made the reasonable adjustments, namely to have referred the Claimant to private psychiatric services and/or counselling by then (para 6.7). Ground 3: reasonable adjustments[35]Mr Sweeney makes two submissions. His wider submission is that it is outside the scope of reasonable adjustments to require an employer to fund private medical treatment. In support of this submission he relies on the decision of this tribunal in Kenny v Hampshire Constabulary [1999] IRLR 76 where, in relation to section 6 of the Disability Discrimination Act 1995 (prior to amendment) Morrison J said (at p.35):
"In other words, Parliament is directing employers to make adjustments to the way the job is structured and organised so as to accommodate those who cannot fit into existing arrangements."
In further support of his submission that reasonable adjustments must be "job-related" Mr Sweeney refers to the Code of Practice in place from 1 October 2004, and which remained in place until 6 April 2011 after the coming into effect of the Equality Act 2010 which was in substance the same as the 1995 Code which applied at the time of Kenny and which is directed, as is the 2011 Code, at employers making adjustments to work-related matters. It follows, he submits, that had Parliament intended to broaden the scope of what was required by way of reasonable adjustments in 2004 beyond that considered to be the case in Kenny , then presumably it would have ensured that the new Code of Practice reflected this. Mr Sweeney submits that the substitution of section 4A for the old section 6 has no material effect for present purposes. Accordingly he submits that the employer is not obliged to pay for medical treatment to improve an employee's health to enable him to perform any work; whether an employee is fit to do any work is a matter entirely, he submits, for the employee.[36]Secondly, Mr Sweeney makes a narrow submission on the facts. He submits that the tribunal failed to address the Appellants' point that where neither the Claimant nor her medical advisers have taken any steps, or suggested taking steps, to obtain cognitive behavioural therapy, the Appellants could not be said to have failed to make a reasonable adjustment. The evidence, he suggests, before the tribunal was that the treatment was freely available to the Claimant on the NHS, that the waiting list in Newcastle was less than six months and that the Claimant had not sought to undertake therapy of the sort which the Appellants are criticised for not funding.[37]Further Mr Sweeney submits that it is the function of the tribunal to relate the adjustment to the PCP. The tribunal failed to ask itself the question whether, had the Appellants paid for the therapy, there was a real prospect that the disadvantage suffered by the Claimant of not being able to perform the essential functions of her role of Finance and Reception Manager would have been removed. The tribunal, he submits, was obliged, but failed, to consider the evidence of Dr Vincenti, which was that even with cognitive behavioural therapy the Claimant would not be able to return to do her job as Finance and Reception Manager. That being so the disadvantage suffered by the Claimant had been removed by the offer of a less onerous position which the Claimant had rejected.[38]In relation to the wider submission Ms Eddy makes the preliminary point that the reasonable adjustments identified by the tribunal are "to have referred the Claimant to private psychiatric services and/or counselling" (para 6.7). The "private psychiatric services" referred to are separate from and not the same as cognitive behavioural therapy (see "Summary and Opinion" in Dr Parry's report of 19 August 2010).[39]In any event we accept Ms Eddy's submission that the adjustments are job-related in the required sense. They involved payment for a specific form of support to enable the Claimant to return to work and to cope with the difficulty she had been experiencing at work. The medical evidence was that the Claimant was suffering from predominantly work-related stress. There were reasonable prospects that if Dr Parry's advice was followed and the reasonable adjustments adopted they would be successful.[40]Whatever may have been the decision under section 6 of the 1995 Act, there is nothing, in our view, in the statutory language used in section 4A or section 18B of the 1995 Act as amended that leads to a different conclusion. Indeed the adjustments were, in our view, within the scope of the amended provisions of the 1995 Act and the Code of Practice in force at the material time. The Code of Practice included by way of examples under "giving, or arranging for, training or mentoring (whether for the disabled person or any other person)" at paragraph 5.18 the following:
"A disabled man returns to work after a six month period of absence due to a stroke. His employer pays for him to see a work mentor, and allows time off to see the mentor, to help with his loss of confidence following the onset of his disability."
What was recommended by Dr Parry was psychiatric sessions and counselling to enable the Claimant to return to work and enable her to deal with the substantial disadvantage which had arisen because she was not able to fulfil the PCP. We accept Ms Eddy's submission that the issue in this case is not the payment of private medical treatment in general, but, rather, payment for a specific form of support to enable the Claimant to return to work and cope with the difficulties she had been experiencing at work.[41]Further, in our view, there is no reason why the reasonable adjustments recommended by Dr Parry should not fall within section 18B(2)(g) or (l): the purpose of the psychiatric support is to mitigate the effect of the PCP.[42]On the narrower issue we reject Mr Sweeney's submission that the tribunal erred in concluding that by not paying for CBT, the Appellants had failed to make a reasonable adjustment. The tribunal considered the evidence, including the evidence from both Dr Parry and Dr Vincenti, and found that it would have been a reasonable adjustment to implement Dr Parry's recommendations. This was plainly a conclusion that the tribunal was entitled to reach on the evidence. Having regard to the test in Yeboah v Crofton [2002] IRLR 634 we are of the view that in so far as Mr Sweeney mounted a perversity challenge, such a challenge must fail. The Claimant did not accept that the evidence established that the CBT was freely available on the NHS, and there was no evidence of the waiting list at the relevant time for CBT.[43]Finally, in relation to reasonable adjustments, the Appellants challenge the tribunal's finding that they failed to engage with the Claimant (para 6.8). Mr Sweeney submits that the conclusion is perverse; the reasoning is not Meek compliant; and the tribunal erred in law in not considering how the postulated adjustment of engaging in dialogue would have alleviated the PCP. We reject these complaints. The relevant period for the tribunal was between 19 August 2010, the date of Dr Parry's first report which sets out the Claimant's work concerns which she expressed to him and 23 November 2010, the date of her resignation letter. The tribunal found, as it was entitled to do on the evidence, that at no time between 19 August and 23 November 2010 did the Appellants take any steps to resolve with the Claimant her concerns. The tribunal considered it would have been reasonable for the Appellants at least to have addressed the proposed adjustment in writing with the Claimant. Instead there was effective silence, and communication stopped in July 2010. Ground 4: constructive dismissal[44]Mr Sweeney submits that paragraphs 9.5 and 9.6 of the tribunal's decision give the impression that the tribunal concluded that the Appellants necessarily repudiated the Claimant's contract of employment because they had failed to make reasonable adjustments. Further Mr Sweeney submits that the tribunal erred in finding that there was "a duty to consult with the Claimant during her absence" (see Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 ).[45]At paragraph 9.6 the tribunal set out the findings of fact it made that supported the Claimant's claim of constructive unfair dismissal. The tribunal concluded:
"Even if some of the reasons stated in the resignation letter have not been made out, the Respondents' failure to follow the recommendations of Dr Parry, without any explanation given to her at the time, or any consultation with the Claimant amounted to a repudiatory breach of the term of trust and confidence which clearly arose from the Claimant's disability. These were in themselves an effective cause of the Claimant's resignation."
[46]There was no statutory duty to consult. The duty to consult arose from the implied term of mutual trust and confidence. After Dr Parry's reports which identified the Claimant's concerns the Appellants should have contacted her to start to address these issues and Dr Parry's recommendations.[47]In our view the Appellants have failed to identify any error of law on the part of the tribunal in relation to this ground. Ground 5: Discriminatory dismissal[48]The Claimant alleged in further written particulars of her claim that the Appellants' failure to make reasonable adjustments was causative of her dismissal. The tribunal made a finding to that effect (see para 2 of the judgment and para 9.6 of the Reasons). However that issue was not identified as one of the issues at the hearing (see para 2 of the Reasons and the agreed list of issues). Further it does not appear to have been addressed by the parties at the hearing.

(P) observed in Tarbuck at paragraph 62:

"… it is a fundamental principle of natural justice that a party should have the right to make submissions on any issue which is the subject of the dispute and in relation to which adverse findings may be made."
[49]The Appellants did not have that opportunity in this case. Accordingly this ground of appeal succeeds and we set aside the finding that the dismissal of the Claimant was an act of discrimination arising from her disability. This, as Mr Sweeney acknowledges, has no practical impact on the tribunal's decision. However as the issue does not appear to have been one of the issues agreed between the parties for determination by the tribunal, this part of the judgment cannot stand.

(B) The Appeal on Remedies

[50]The Notice of Appeal contains three grounds of appeal: i) The tribunal erred in concluding that it had power to award damages for wrongful dismissal in circumstances where it had not adjudicated on the wrongful dismissal claim and had issued no judgment in respect thereof (Ground 1). ii) The tribunal erred in concluding that an employee is not required to give notice to terminate a contract of employment in order to benefit from sections 86-88 of the Employment Rights Act 1996 ("the 1996 Act"). The Claimant resigned without notice on 23 November 2010. At that time she had exhausted all rights to contractual sick pay. The tribunal ought to have concluded that the Claimant was not entitled to any notice pay (Ground 2). iii) The tribunal erred in paragraph 18 of the decision in concluding that the Appellants terminated the contract of employment. This error of law resulted in the tribunal awarding 12 weeks' notice pay instead of one week's pay (on the assumption that the Claimant was entitled to any notice pay) (Ground 3).[51]In relation to Ground 1, Mr Sweeney acknowledged this is purely a technical point. He accepted it was an oversight on the tribunal's behalf. Further, during the course of his oral submissions he acknowledged that at paragraph 17 of the Remedies Judgment the tribunal was saying that essentially it had made a finding of wrongful dismissal. The tribunal stated at paragraph 17:
"The Respondent could not argue that any prejudice was caused to it by a failure to record a finding on a claim which had in fact been made and whose result was obvious once there had been a finding of constructive dismissal."
[52]In our view the findings of the tribunal with respect to the Appellants' repudiatory breach was sufficient to give the tribunal jurisdiction to make an award on the wrongful dismissal claim.[53]We shall consider Grounds 2 and 3 together.[54]Sections 86-91 of the 1996 Act provide, in so far as is material:
"86(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more— (c) is not less than twelve weeks' notice if his period of continuous employment is twelve years or more. (2) The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week. (6) This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party. 87(1) If an employer gives notice to terminate the contract of employment of a person who has been continuously employed for one month or more, the provisions of sections 88 to 91 have effect as respects the liability of the employer for the period of notice required by section 86(1). (2) If an employee who has been continuously employed for one month or more gives notice to terminate his contract of employment, the provisions of sections 88 to 91 have effect as respects the liability of the employer for the period of notice required by section 86(2). (3) In sections 88 to 91 'period of notice' means— (a) where notice is given by an employer, the period of notice required by section 86(1) and (b) where notice is given by an employee, the period of notice required by section 86(2). (4) This section does not apply in relation to a notice given by the employer or the employee if the notice to be given by the employer to terminate the contract must be at least one week more than the notice required by section 86(1). 91(5) If an employer fails to give the notice required by section 86, the rights conferred by sections 87 to 90 and this section shall be taken into account in assessing his liability for breach of the contract."
[55]The tribunal considered the Appellants' submissions that the Claimant, having resigned without notice, she had no rights arising under sections 86-91 to notice pay, and that the letter of resignation was to be treated as a notification of resignation with immediate effect and not on notice. The tribunal commented at paragraph 18 as follows:
"If this submission were correct it would have a startling effect. To give an entirely hypothetical example divorced from the present case, were an employee, after 12 years' service to be violently assaulted by his employer at work and were he to elect to leave on the spot, he would lose the rights to notice pay. The submission is based on a misreading of the opening words in section 87(1) 'if an employer gives notice to terminate the contract of employment of a person who has been continuously employed for one month or more, the provisions of sections 88-91 have effect as respects the liability of the employer for the period of notice required by section 86(1)'. Notice does not mean advance notice, it includes immediate notice. It is to be contrasted with the term 'period of notice'… in section 87(3)."
[56]Mr Sweeney suggests that the tribunal erred in referring to section 87(1), not section 87(2). His principal contention is that the employee must give the notice which is required by section 86(2) if he is to be entitled to notice pay. Further he submits that where an employee resigns and the employee is incapable of working during his period of notice, the employer's statutory liability under section 87(2) and (3) is limited to payment for one week.[57]In our view, as Ms Eddy suggested in her oral submissions, it is necessary to return to first principles. When an employee brings a wrongful dismissal claim in circumstances where he has been constructively dismissed, then that is a claim for losses flowing from the employer's repudiation of the contract. The measure of damages corresponds to what would have been the employee's remuneration during the notice period, had the employer not repudiated the contract. In the present case the Appellants repudiated the contract and failed to give the Claimant her minimum statutory notice. This is not a case of the employee giving notice and the application of 86(2) and 87(2); it is one of the Appellants having failed to give notice under section 86(1) and 87(1). Accordingly under section 91(5) the measure of damages falls to be calculated by reference to the employer's failure to give notice. It follows that in our view these grounds of appeal fail.

(C) Conclusion

[58]For the reasons we have given i) On the liability appeal, Grounds 1-4 fail; the appeal on Ground 5 is allowed; ii) On the remedies appeal, each of the grounds of appeal fails.

Cited in 1 later judgment