Appeal No. UKEAT/0867/03/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 June 2004
Judgment delivered on 16 August 2004

Before
HIS HONOUR JUDGE J R REID QC
MS K BILGAN
MR D SMITH

MR LEE EDWORTHY	APPELLANT

YMCA SOUTH DEVON LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR GAVIN MANSFIELD
(of Counsel)
Instructed by:
Bar Pro Bono Unit	
For the Respondent	MR ROGER HARPER
(of Counsel)
Instructed by:
Messrs Lyons Davidson Solicitors
Bridge House
48-52 Baldwin Street
Bristol BS1 1QD	

SUMMARY

Disability Discrimination

Applicant resigned – Was there constructive dismissal owing to lack of support? – Was the Tribunal’s decision of no constructive dismissal perverse? – Was there evidence to support finding he left for a change of lifestyle? – Was the Tribunal correct to hold no ‘less favourable treatment’? – Was Respondent entitled to rely on section 6 (6) of the Disability Discrimination Act 1995 on the issue of ‘reasonable adjustment’? – Held ‘No’ – Remitted to same Tribunal to consider that question.

HIS HONOUR JUDGE J R REID QC

1.	This is an appeal from a decision of an Employment Tribunal held at Exeter in August 2003, the decision being sent to the parties on 27 August 2003.  The appeal is against the dismissal of the Applicant’s claims for constructive dismissal, and disability discrimination contrary to section 5 (1) of the Disability Discrimination Act 1995 and unfair dismissal.

2.	In outline the facts were that the Applicant was employed by the Respondent as its director of operations.  He had the misfortune to suffer a heart attack at the age of 26 in 1994 and since that time has experienced episodes of chest pain as a result of recurrent angina.  In August 2001 he suffered a further period of ill-health and was off work until 2 April 2002, when he returned to work half time.  He went back to fulltime working early in May 2002.  While he was off sick the chairman of the Respondent visited him and promised him support to reduce the pressure on his return.  Unfortunately the Respondent had staffing difficulties and there were also difficulties with the chairman who withdrew from taking any active part in the Respondent’s affairs and resigned on 20 May 2002.  The effect of this was that the envisaged support was not put in place.  On 14 June the Applicant agreed to purchase a post office subject to contract.  On 27 June there was a board meeting at which it was agreed that position of chairman/line manager for the Applicant would be discussed at the next meeting.  On 10 July the Applicant e-mailed the trustees to tell them that he was applying to be registered as disabled.  On 14 July he submitted his resignation.  He left on 16 August on the expiry of his notice, the post office purchase having fallen through on about 9 August.  He has since managed to purchase another post office. 

3.	The Applicant claimed constructive dismissal by reason of the Respondent’s failure to provide adequate support for him throughout his employment.  The Tribunal took the view that there had been administrative support provided but that even if there had been a breach of contract his return to work in April 2002 showed that the breach was not fundamental.  So far as the period after his return to work was concerned the Tribunal was divided but the majority found that he jumped the gun in treating the lack of new support structures immediately on his return as being grounds for resignation.  The majority held that even though he did not receive any line management from the chairman on his return he was well aware within a month or so that the chairman had resigned and the board was actively addressing the issue of his successor.  The majority also took the view that in an organisation managed by volunteer trustees the extent of line management given to the chief executive officer was necessarily limited and the Applicant knew that active steps were being taken by the Respondent to ensure that proper structures of support were in place by its initiative in commissioning a personnel audit which was subsequently adopted as a management action plan.
 
4.	In any event the tribunal unanimously held that even if there had been a fundamental breach of his contract, that was not the effective cause of his resignation.  He resigned because he had been considering his position for at least 12 months, had decided to change his career and had made a successful offer (subject to contract) to purchase a post office.

5.	The Applicant submitted that the Employment Tribunal was wrong in law in that it was unduly influenced by its view as to why he acted as he did rather than addressing the effect of the Respondent’s actions on him and that the finding was perverse.  It was submitted that the Tribunal should have found that the conduct of the Respondent did amount to a breach of the implied term of trust and confidence and that any such breach is inevitably a fundamental breach.  Emphasis was placed on the fact that as early as 7 May the Applicant was complaining of lack of support and that on 15 May he was suggesting that this might amount to a fundamental breach.  Counsel stressed the Applicant’s state of health.  As to the finding that the supposed breach was not in any event the cause of his leaving counsel submitted that the breach need not be the sole cause of the Applicant’s leaving, and that there was no evidence that he had been planning a career change for at least twelve months.  He also suggested that the finding that the Applicant’s attempt to purchase the post office was his fourth was based on a misreading of a letter from the Applicant.

6.	In our view the Tribunal’s view cannot be characterised as perverse.  The finding has to be taken in conjunction with the Tribunal’s other findings.  The Tribunal was of the view that the Applicant had been taking active steps to find alternative employment for a long period.  His suggestion that there might be a fundamental breach was not followed by his resignation.  He did not give notice until mid-July by which time he had had his offer for a post office accepted subject to contract.  Then, when it looked as if there might be difficulties about that particular post office, on 31 July he offered to remain in the Respondent’s employment and “extend his termination date by negotiation”.  The Applicant was Director of Operations.  He was aware of the difficulties in relation to the chairman which the Respondent was suffering and he was also aware that steps were being taken to remedy the situation.  In those circumstances the Tribunal was entitled to take the view that the failure to provide the support which the Applicant wanted did not amount to a breach of the term of trust and confidence.  The Tribunal was entitled to take the view that, whilst a continued failure to provide support might have changed the position, the Applicant would indeed have jumped the gun if the reason for his resignation had been the lack of support.

7.	As to the Tribunal’s further finding that the Applicant had not resigned in response to the supposed fundamental breach, the Applicant submitted that the Tribunal had no evidence to support the finding that he had been considering his position for at least 12 months and that it was in error in finding that the proposed purchase was “his fourth attempt to purchase a post office”.  The basis of this statement was the Applicant’s own e-mail to the estate agent on 13 August (when his vendor had indicated his intention not to proceed) in which he said “This last transaction was the fourth in a line of abortive agreements”.  It may be that he was intending to refer to four attempts to purchase the same post office, but either way it indicated a long involvement with attempts to purchase a post office.  Even though there was “no clear evidence to indicate exactly when” (to quote the Tribunal’s words) he had made his first inquiries, the Tribunal was entitled to reject his evidence that the whole transaction took place very quickly.  He himself talked of negotiating the sale in May, and of looking into the possibility of purchasing a post office when he decided to look for alternative work.  Whilst there was evidence (his length of service, his recent return to work and his professed enthusiasm for the YMCA were emphasised) on which another tribunal could have come to a different decision, there was evidence on which the Tribunal could make the findings which it did.  It cannot be said that the conclusion which it reached was “obviously wrong” or otherwise perverse.  The Tribunal was entitled to find that the effective cause of termination was his desire for a career change.

8.	Turning to the disability discrimination limb of the appeal, under section 5(l) of the Disability Discrimination Act 1995, an employer discriminates against a disabled person if for a reason relating to that person's disability he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply and the treatment is not justified.  In this case the Tribunal treated the alleged less favourable treatment as "constructive dismissal" rather than as the overall lack of support which was said in the unfair dismissal claim to amount to constructive dismissal.  Having concluded there was no constructive dismissal, the Tribunal held that therefore the Applicant had failed to show less favourable treatment. In this it was in error.  However it went on to hold that the reason for any less favourable treatment was not for a reason related to disability, but was due to incompetent line management by the Chairman who resigned.  It follows that even though the Tribunal should have looked at the underlying facts, rather than the question of whether they amounted to a breach of the implied term of trust and confidence, the Tribunal’s conclusion was not affected by the error.

9.	It was then submitted on behalf of the claimant that the Tribunal erred in its decision at paragraph 32 that section 6(6) of the Act applied and therefore did not go on to consider reasonable adjustments.  The Tribunal relied on the fact that the Respondent had obtained a report from a consultant staff physician, Dr. Simpkin who had advised that the Applicant was not a disabled person, and that there seemed no good reason to limit his activities in any way.  However as this report was obtained on 14 May 2002 it can only have had an effect on what the Respondent knew or could reasonably have known from that date onwards.  As at 14 May 2002, the Applicant had been back at work since the beginning of April 2002. During that period the only medical evidence available was that of the Applicant's GP, which was sufficient to indicate that the Applicant was a disabled person.  The Respondent was aware that the Applicant had suffered one acute myocardial infarction aged 26 and had been off work for some nine months from August 2001 with coronary artery spasms.  It was also aware of his ongoing coronary artery spasm problems (for example it was raised in a report to the Trustees on 14 September 1999, after a period of absence from work due to this problem).  The Respondent's human resources officer was clearly alive to possibility that the Applicant was disabled: the human resources survey showed one male employee over the age of 26 years (i.e. the Applicant) who had indicated that he had a disability.  In our view the Tribunal was in error in holding (on the basis of Dr Simpkin’s report) that the section 6(6) defence was made out in the period up to 14 May.

10.	Because of Tribunal’s view of the availability of the section 6(6) defence it did not go on to consider the question of adjustments  The GP had recommended adjustments  and adjustments had been agreed by the Respondent's Chairman.  The Tribunal should have addressed the position during this period.

11.	The Applicant then submitted that the Tribunal did not address the question of whether it was reasonable in all the circumstances for the Respondent to have relied on Dr. Simpkin's report.  A lengthy attack was launched on Dr Simpkin’s report and the right of the Respondent to rely on it.  In our judgment it is not necessary to go in detail through all the points which were raised.  The difficulty from the Respondent’s point of view is that Dr Simpkin only considered the Applicant’s situation with the benefit of medication.  He did not consider whether the Applicant had an impairment which “would be likely to have a substantial 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”.  By Schedule 1, paragraph 6(1) of the 1995 Act if that was the Applicant’s situation, the impairment was “to be treated as having that effect”.  In these circumstances the Respondent’s could not, in our view, properly rely on the report as giving them as defence under section 6(6).

12.	It follows that in our view (if the parties cannot now resolve their differences) the matter must be remitted to the same Tribunal, if it can be reassembled, to consider whether the Respondents should have made any (and if so what adjustments) in order to comply with their duty under section 6.  Then if the Respondents are found to have failed in their duty, the Tribunal will have to determine what compensation should be awarded.  We hope that no further hearing will be necessary, since it seems to us that the costs of any further hearing are very likely to exceed any award of compensation that will be made if the Applicant is successful at the further hearing.