Appeal No. UKEAT/0204/08/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 September 2008

Before
HIS HONOUR JUDGE McMULLEN QC
MR B R GIBBS
MR S YEBOAH

MISS S A MILLER	APPELLANT

GOVERNING BODY OF THE RIDINGS HIGH SCHOOL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS CATRIN LEWIS
(of Counsel)
Instructed by:
Association of Teachers & Lecturers Legal Services Department
7 Northumberland Street
London WC2N 5RD	
For the Respondent	MR NICHOLAS SPROULL
(of Counsel)
Instructed by:
South Gloucestershire Council
Legal Services
Council Offices Castle Street
Thornbury
South Gloucestershire
BS35 1HF	

SUMMARY
CONSTRUCTIVE UNFAIR DISMISSAL 
DISABILITY DISCRIMINATION 
Direct disability discrimination/Disability related discrimination/ Reasonable adjustments
The Claimant claimed constructive unfair dismissal and disability discrimination, taking the form of direct discrimination, disability related discrimination and the failure to make reasonable adjustments.  The Respondent contended it did not dismiss her, for she took early retirement and she was treated no differently from any other person within its employ. Deposit and corresponding costs orders were made. Employment Tribunal Judgment upheld. Retirement which terminates a contract of employment by mutual consent does not fall within the Employment Rights Act 1996 s95(1)(c).  Malcolm would be followed in preference to Clark v Novacold although full argument on a new point of appeal was not advanced.

HIS HONOUR JUDGE McMULLEN QC
1.	This case is about constructive unfair dismissal, disability discrimination and an Employment Tribunal’s duty to give reasons.  The judgment represents the views of all three members.  We will refer to the parties as Claimant and Respondent.

Introduction
2.	It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal chaired by Employment Judge Bedford sitting at Bristol, registered with reasons on 26 February 2008.  The Claimant and the Respondent are represented respectively by Ms Catrin Lewis and Mr Nicholas Sproull of Counsel.  The Claimant claimed constructive unfair dismissal and disability discrimination, taking the form of direct discrimination, disability related discrimination and the failure to make reasonable adjustments.  The Respondent contended it did not dismiss her for she took early retirement and she was treated no differently from any other person within its employment.

The issues
3.	The essential issues were not defined by the Employment Tribunal and one has to reach into a deposit order made by Employment Judge Sara on 17 September 2007 to have an easy understanding of the issues before this Employment Tribunal.  He set out the grounds which, at the instance of the Respondent, provoked him to make a deposit order of £300 as a condition of the Claimant being permitted to continue the proceedings.  There was no appeal.  It contains the following grounds:

“1.	This is, on the surface a complex case which would usually result in a “no opinion”, but there are several dubious factors in the Claim.
2.	There is no direct allegation that the plan (which was never implemented) to re-classify the claimant’s library duties as administrative rather than teaching was motivated by an intention to disadvantage her due to her disability.
3.	It seems obvious that being a school librarian is not “teaching”.  Put at its highest it is a non-teaching professional role, like that of bursar.
4.	The re-classification was not directly related to the claimant’s disability.  In effect the contention is that the respondents should have adjusted their analysis of her job to take into account that she was becoming unable to do her job as a teacher.
5.	The extent to which alternative work should be found for disabled people and whether, if it is lower status, their pay should be reduced is a difficult point, but there respondents never made a decision as to what adjustments they would make to the changed role to assist the claimant in maintaining all or part of her benefits and status.
6.	The claimant never raised a grievance during her employment.
7.	The claimant obtained ill-health retirement on the basis that she was unfit to be a teacher.  This is inconsistent with her contention that she wanted to remain a teacher.  It is, however, consistent with the proposition, which does not seem to be clearly expressed, that she felt that adjustments should be made to allow her to retain her teaching status despite not being a teacher. 
8.	The only way this could have been done would have been to re-assess the job, but to allow her to remain on her existing salary.  However, she never allowed consultations and negotiation to take place to enable this.
9.	The tribunal has taken account of the applicant’s ability to comply with the order in fixing the amount.”

4.	Further illumination is given by a costs order made by this Employment Tribunal for reasons given on 3 April 2008 awarding the Respondent three-quarters of its costs in the sum of £8,529.  There is no appeal against that, although, of course, it would require reconsideration if this appeal succeeded.  

5.	Both the deposit and the costs orders contain reasons which are relevant to the reasons on the substantive judgment, as is accepted by the parties.  We say this because there is a criticism, which we in part accept, of the adequacy of the Tribunal’s reasons.  

6.	The Employment Tribunal rejected all the Claimant’s claims.  She appeals.  I gave directions sending this appeal to a full hearing at a time when the House of Lords had not yet decided London Borough of Lewisham v Malcolm [2008] IRLR 700 (see below).

The legislation
7.	The relevant provisions of the legislation start with section 95(1)(c) of the Employment Rights Act 1996, which provides as follows:
“95 Circumstances in which an employee is dismissed 
(1) 	For the purpoes of this Part an employee is dismissed by his employer if …‑
	(c)	the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

This is known as constructive dismissal.  The Tribunal cited it and directed itself in accordance with Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 CA.

8.	The Disability Discrimination Act 1995 provides in relevant part as follows:

“3A  Meaning of Disability 
(1)	For the purposes of this Part, a person discriminates against a disabled person if ‑
	(a)	for a reason which relates to the disabled 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 
	(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.
(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.”

The facts
9.	The Respondent is a secondary school in Winterbourne, South Gloucestershire.  The Tribunal introduced the Claimant in the following way:
“2. 1	The Claimant suffers from congenital glaucoma with no vision in her left eye and limited vision in her right eye.  She is registered as fully blind.  The respondent has throughout accepted that she was disabled under the meaning of the Disability Discrimination Act 1995 and has provided appropriate practical support and, in the course of her employment, made all required adjustments.

10.	The Claimant was born in 1954 and started work at this school in 1976 as a teacher of history, eventually adopting the status of Head of Department, teaching some history then spending the rest of the time in the library doing duties there from 1992 onwards.  She subsequently transferred to the library full time, the Tribunal finding that this probably corresponded to a concern expressed by the Respondent about the deterioration of the Claimant’s eyesight.

11.	The school appointed Dr Gibson as Head Teacher in 1995.  There was considerable change in the teaching profession in relation to the terms and conditions of employment and of the duties.  The Claimant continued to work supported by various statutory and voluntary sector bodies facilitating that.  By 2000 she was resuming some teaching of history in the classroom with human support provided and was paid at an appropriately senior rate.

12.	In 2003 an agreement known as the National Workload Agreement, “NWA”, was signed involving ATL, the Claimant’s union, which has supported her throughout.  The gist of the change was that teachers should not routinely undertake administrative and clerical tasks.  Pursuant to this agreement, the Government published regulations and guidance under the heading Time for Standards.  This guidance was agreed by the relevant unions and again the gist was to ensure that specified work was carried out by teachers or by support staff.  Teachers and support staff were not to be interchangeable.  This had an effect on a large number of teachers who had, in addition to teaching duties, administrative duties, and so provision was made for preservation of certain allowances which accompanied that combination of duties.

13.	Dr Gibson regarded the Claimant’s position as including library duties, which he saw as support staff duties, and also some teaching.  The arrangements for dealing with this were the subject of considerable attention by South Gloucestershire, which of course holds the contract for employment for teachers.

14.	Occupational health reports were requisitioned during the course of 2005 and 2006.  The Claimant also had some time off work.  A meeting was to be convened which envisaged that the Claimant might continue as she was at that stage with some history lessons and doing the rest of her work in the library with some reflection of that balance in her pay.  The trade union representing her decided to refer to its solicitors and asked that what the Tribunal held to be a tentative proposal should be put in writing.  That was done on 15 June 2006.  It is important to note that the gist of the proposal was to take effect not before 1 January 2009, some 2.5 years later.  There never was a reply from the Claimant or her union.  

15.	She had undergone a corneal transplant which was not working satisfactorily and after many visits to her treating physicians decided that she would apply for early retirement on the ground of ill‑health.  This has the status of a consensual termination pursuant to the rules of the Teachers’ Pensions Scheme.  On 6 September 2006 the Claimant notified the Respondent that that was what she was going to do for the sake of her health.  On 20 November 2006 the application was accepted.  Again, as part of that regime, the administrator of Teachers’ Pensions wrote to the relevant officer at South Gloucestershire Council confirming that that Claimant was unfit for teaching and said this,

“If Ms Miller is actively teaching you should arrange for this to cease with immediate effect and for her employment to be terminated at the earliest possible retirement date.”

That indicates that the Claimant is unfit by reason of her health to teach and that appears to be comprehensive, in other words, there are no lighter duties she is to be employed on.  The Claimant accepted an invitation to a retirement lunch at the school, and, pursuant to the notice which she had given, her last day of employment was 31 December 2006.

16.	Whatever was consensual about that relationship seemed to fall apart on 6 March 2007, for the Claimant’s union submitted a grievance, contending that the Respondent had not carried out an adequate assessment of her role in the library, had not considered what adjustments could have been made in her role or the application of the NWA to her.  As the Tribunal put it, the Claimant went into exhaustive detail to suggest that her role in the library was, in fact, that of a qualified teacher.  The Tribunal made the following findings relating to disability discrimination, which we reproduce in full:

“5.	Under Section 3A(5) the claimant contends that the respondent discriminated against her in failing to assess the extent of her actual administrative work in the library.  She considered that to be negligible.  The respondent looked at what the school required of the librarian’s role and considered that a qualified teacher was not required to carry out he role or, indeed, to carry out the principal tasks that the Claimant was actually carrying out in practice.  The respondent in the person of Dr Gibson was clear that those tasks were, therefore, principally administrative.  He was entitled to this view which accorded with the National Agreement.  The role of a librarian needed by the school was not defined by the claimant’s performance of it.  There was no requirement on the respondent to enter into a detailed assessment of what the claimant actually did in the way she carried out her enhanced role and the failure to do so was not on the ground of her disability or related to it and was not discriminatory.  The roles of other staff were changed with resulting stress.  The claimant was not treated less favourably than a real or hypothetical comparator directly or for a reason related to the disability.
6.	The claimant further suggests that it would have been a “reasonable adjustment” to ignore the National Agreement and to continue to pay her on a qualified teaching scale while working in the library.  As the claimant retired without continuing the ongoing discussions that question was not resolved.  Nothing was suggested to happen until 1 January 2009 in any event.  There was no failure to make a reasonable adjustment.”

17.	As to constructive dismissal, the Tribunal addressed itself correctly on the law and at paragraph 7 said this:
“She did not resign and we characterise the position as a termination by mutual consent.  As such, there was no dismissal.”

18.	The Tribunal then went on to consider, if it were wrong about that view, the application of the constructive dismissal regime described by the Court of Appeal in Western Excavating and said this:
“9.	The Claimant suggests a breach of the implied term of trust and confidence arguing that the failure to carry out a proper assessment of her librarian’s role constituted such a breach together with the imposition of stress.  On the facts we are satisfied that the discussions associated with these ongoing problems resulted from the respondent’s attempts to find a way of complying with the National Agreement agreed with her union in the light of her accepted disability and did not amount to a repudiatory breach of contract by the respondent.  Whilst there was stress, this was not caused by any unreasonable action on the part of the respondent amounting to a breach of the implied term.  Although there were discussions, the respondent had made no change at all to the claimant’s work or terms and conditions.  Discussions were ongoing with no further response from the claimant.
10.	Had there been such breach, we noted that the claimant retired for ill-health only, saying nothing to indicate that she was doing so because of any conduct on the part of the respondent with no suggestion that this might have been the case until raising a grievance some months later.  We would not have been satisfied that any such breach would have been the cause of the termination.  We would, in any event, have held that there was no constructive dismissal.”

19.	With those findings in hand, the Respondent invoked the deposit order and the Employment Tribunal met again to consider an application by the Respondent that the costs should be paid.  At a hearing again where the parties were represented as above, the Employment Tribunal ruled that the judgment it had made corresponded to the grounds on which Employment Judge Sara had made his deposit order:  it was thus required to consider an application for costs and decided that the award should be made, albeit limited to 75 per cent of the amount sought, and so costs were awarded.

The Claimant’s case
20.	On behalf of the Claimant the central proposition is that the school failed to carry out a proper examination of the work that she was doing and so to classify her as a teacher rather than as support staff. This had a demeaning effect upon her, causing her distress, deterioration in her eyesight and provoking her application to retire early on the grounds of ill‑health.

21.	As to unfair dismissal, this was not a termination by mutual consent but was driven by the treatment she had received over the course of the preceding 18 months leading to a final straw amounting to a repudiation by the respondent of its employment duties on 15 June 2006, which she accepted on 6 September 2006 by indicating that she was applying for ill-health retirement.  It was a forced termination.  It was a repudiation of her contract for her to be regarded by her employer as a librarian and not a teacher.  

22.	As to disability discrimination, notwithstanding the judgment in Malcolm [2008] IRLR 700 reliance was placed on the judgment of the Court of Appeal in Clark v Novacold [1999] IRLR 318, Ms Lewis contending it represents the law as it applies to employment.  It has not been overruled by the House of Lords in this housing case.  The primary judgment was that of Baroness Hale, and that gave “the clear legal reasoning” in the case.  It was contended that a failure to adjust the assumption that the Claimant was support staff constituted a failure to make reasonable adjustments.  It was accepted that the position immediately prior to the problems arising was that reasonable adjustments had been made; and this case was put on the basis that it was unlawful (a failure to make reasonable adjustments) for a Respondent to remove such adjustments as were in place.  As to the NWA, it was contended that the Respondent had failed correctly to examine the terms and implications of that agreement and that Dr Gibson was wrong to regard himself as applying them.  

The Respondent’s case
23.	On behalf of the Respondent arguments were addressed to us in writing on unfair dismissal, but we did not call upon Mr Sproull to answer that ground of appeal.  

24.	As to the criticism made by the Claimant of inadequate reasons, it was, we think, accepted by Mr Sproull that these reasons are jejune in respect of disability discrimination.  Yet he contends that when looked at together with the deposit order and the costs order, the Tribunal has told the Claimant why she has lost this case.  It has made clear findings of fact in its paragraph 2.1 and has, in essence, resolved a simple case on the basis of the factual findings which it made.  The Claimant applied for ill-health retirement because of difficulties she was having following surgical intervention in the summer of 2006 and that disposed of her claims, both for disability discrimination and unfair dismissal.  The reasons are good enough on these issues, Mr Sproull contended.  As to the merits, since the heart of the Claimant’s case is her complaint about her classification, the finding by the Tribunal that Dr Gibson was entitled to take the view he did of her classification because it accorded with the NWA, was one which was open to the Employment Tribunal.  As to the failure to make a reasonable adjustment taking the form of a detailed assessment of the work the Claimant was doing, the Tribunal, it is said, made a finding that it was not required to carry out a detailed assessment and in any event that was correct on the authorities; see Hay v Surrey County Council [2007] EWCA Civ 93.

25.	The criticism of inadequacy of reasoning could have been resolved by the Claimant at an earlier stage, for example at the costs hearing, or using the recommended procedure set out by the EAT in Bansi UKEAT/0652/03.

The legal principles
26.	The legal principles to be applied in this case appear to us to be as follows.  An Employment Tribunal is required to give reasons for its judgment so that the parties can understand why they have won and lost and so that on appeal the reasoning can be clear; see City of Birmingham City Council v Meek [1987] IRLR 250 CA.  A party in receipt of insubstantial reasons on its case is entitled to go back and ask for further reasons from the Employment Tribunal before troubling the Employment Appeal Tribunal whilst making a protective Notice of Appeal; see Bansi.

27.	Constructive unfair dismissal is correctly described by the Tribunal:

“8.	Were we to be wrong in that view, we have considered the leading case of Western Excavating (EEC) Ltd v Sharp [1978] ICR 221 under which in order to claim constructive dismissal the employee must establish (a) that there was a fundamental breach of contract on the part of the employer, (b) that the employer’s breach caused the employee to resign and (c) that the employee did not delay too long before resigning thus affirming the contract and losing the right to claim constructive dismissal.”

28.	A failure to assess an employee for the purposes of considering whether a reasonable adjustment should be made in respect of the employee’s disability is not in itself a failure to adjust under the statute; see Hay v Surrey above, applying the doctrine in Tarbuck. [2006] IRLR 664 EAT. Obviously an employer who does not carry out an assessment deprives itself of a discussion with the disabled person and may therefore not make adjustments which are in law required of it.  But it is that essential character which will justify a finding against it, that is, that an adjustment was required and was not done, rather than the failure to consider making one.  For the purposes of discrimination claims, the correct comparator, it seems to us, is that described by the House of Lords in Malcolm in the judgment of Lord Scott, with whom Lord Bingham and Lord Brown agreed.

Conclusions
29.	We prefer the arguments of the Respondent and have decided that the appeal should be dismissed.

Reasons
30.	The reasons in this case on unfair dismissal are adequate.  But as to unlawful disability discrimination, they fall below the standards required of an Employment Tribunal.  They are rescued by the bookend reasons in the deposit and the costs orders and by the cross-referencing to the material in paragraph 9, ostensibly under the heading of “Unfair dismissal”, which can be read across into the disability discrimination claim.  The findings of fact by the Employment Tribunal are adequate and since this was a comparatively simple case, the reasons which are set out, are sufficient for us on appeal to know what its thinking was and for the parties to understand why they won or lost.

Unfair dismissal
31.	The Tribunal correctly directed itself on the law, first, of dismissal. and secondly, of constructive dismissal.  It took a three-layered approach and we will start at the lowest level because unless the Claimant could overturn this finding none of the previous reasoning mattered on unfair dismissal.

No causation
32.	We hold that the Tribunal’s finding that her reason for leaving was not to do with the Respondent’s conduct is a complete answer to her claim of constructive unfair dismissal.  This is a question of fact for the Employment Tribunal to determine by looking at the mindset of the Claimant and her actions at the time.  The time is 15 June 2006 when the last straw was placed upon this camel’s back, breaking it and causing an aggravation of the matters previously in issue between her and her employer.  But since she did not leave as a result of that on the facts of this case, this point can be taken no further.

No breach
33.	If there were something wrong with that finding, the Tribunal then looked whether there was a breach of the implied term of trust and confidence.  The breach was that there was a failure to carry out a proper assessment of her librarian’s/teacher’s role which caused her stress.  But, again, the Tribunal made a finding that there was no breach because she abstained from responding to overtures by the Respondent.  What the Respondent had done was to answer what was asked of it by the Claimant’s trade union which was to put the tentative proposals in writing.  When that was done, and there is no suggestion that there was a difference between what was vouchsafed orally a month or so earlier and what was put in writing, the Claimant regarded that as a fundamental breach.  But it will be recalled that these were tentative proposals.  They would not come into effect, if at all, until 2.5 years later and in the meantime the status quo would prevail.  The Tribunal found that there was no breach and we find no error in its analysis.

No termination
34.	The third level was that the Tribunal found that there was no termination falling within section 95(1)(c).  This is because the employment relationship came to an end by mutual consent to the Claimant’s retirement.  It is said by Ms Lewis that this is itself a forced resignation falling within the statute.  But the Tribunal disagreed and we see no error in its approach.  In order for the termination of a relationship to fall within section 95, there must be either an actual dismissal by the employer, the coming to an end of a fixed-term contract or action taken by the Claimant in response to action taken by the Respondent and in that case she terminates the contract by accepting repudiatory conduct by the Respondent.  Here, however, this relationship terminated by mutual agreement.  Unusually in the employment context, to bring the relationship to an end by retirement requires mutual consent.  The Claimant applies, her application is accepted, she retires, she does not actually resign, and unless that circumstance can be described as a forced resignation it will not fit within the section.  So we hold no error of law was committed by the Tribunal when it held that this was on the facts a mutual agreement to part company.

Disability
35.	We then turn to the disability claim.  The first issue is the comparator.  The Claimant failed to establish that she was treated less favourably than a real or hypothetical comparator.  She did suggest that she was being treated differently from those other teachers who also had responsibilities in the school, known as cross-curricular responsibilities.  But they were not named, and, in any event, the Tribunal found that there was no less favourable treatment than any actual comparator.  That was a finding for it to make.  It also turned to hypothetical comparators and it must be borne in mind that the background to the changes in this case is the NWA and the seismic shift in the approach to teaching duties within the profession from 2003 onwards which that agreement provoked.  In those circumstances the claim was bound to fail.  The disagreement between the House of Lords and the Court of Appeal embodied in Malcolm, it seems to us has to be resolved in favour of the opinions expressed by members of the House of Lords even though the case was brought under housing legislation, for at least three members said that the reasoning of Mummery LJ in Clark v Novacold was not to be followed.  That being the case, it is difficult to see how Ms Lewis can hang on to her ground of appeal which relies on Clark v Novacold, drafted before Malcolm but not adjusted in the light of it.  Mr Sproull succinctly takes the point in his skeleton that Malcolm did overrule it.

36.	This is not the place for us to carry out a detailed examination and give a judgment on the correspondence between Malcolm and Clark v Novacold for we have had no written skeleton argument from Ms Lewis nor a detailed response from Mr Sproull and have had to rely only on oral submissions.  It is not necessary for our decision to resolve the issue of the correct comparator for it is sufficient for us to note that the Tribunal has made a finding which would be against the Claimant, whether the correct comparator was as in Clark v Novacold or as in Malcolm.  We simply say on the arguments as they stand that we would apply Malcolm here.

37.	Again in this simple case it is necessary to look back at the NWA.  This was a national agreement.  Government guidance followed it.  Subscribers to that were the Claimant’s union.  No different treatment was actually given.  The treatment Dr Gibson foreshadowed was consistent with the National Agreement.  But we observe, as did the Employment Tribunal, that Dr Gibson did not regard himself as bound since he seemed to retain some discretion to continue the current pay arrangements for her.  At the time the Claimant accepted the Respondent’s repudiation, on her case, there had been no change in either the work that she did or the terms and conditions under which she worked nor was there a proposal to so change them, the highest it being put that there might be in 2009, subject however to ongoing discussions, which the Claimant deprived the Respondent of the opportunity of pursuing since she decided to retire.

38.	As to the criticism that the Tribunal has failed to carry out an assessment, this too must fail in the light of the Tribunal’s adoption of Dr Gibson’s approach.  He, of course, knew what the Claimant was doing, and since it still is at the heart of the Claimant’s case that the Respondent did not carry out an assessment which would yield the result that she was in the library actually teaching and so be classified as a teacher that issue can go no further.  These findings indicate Dr Gibson knew what she was doing.  But, in any event, even if that were a failing, the Claimant cannot overcome the difficulty set out in Hay because the failure to carry out an assessment is not itself a failure to make a reasonable adjustment.  As it is put, the reasonable adjustment required is that recognition should be given that the Claimant was doing teaching duties and that could only be done following a detailed assessment of her performance at work.  But, as the Tribunal noted, it was not what the Claimant thought that was the important issue: the job could not be defined by what she thought.

39.	For those reasons, therefore, both aspects of the appeal, unfair dismissal and disability discrimination, are dismissed.  We would like to thank very much both Ms Lewis and Mr Sproull for their concise submissions today.

Costs
40.	An application has been made, expressly without force, for costs today.  No rule has been cited in the EAT canon upon which the application might be based.  The diffidence of Mr Sproull is perhaps understandable in the light of the fact that I gave permission for this to be a full hearing, but that is not conclusive.  Although we do have a slight criticism that there was no application to amend the Notice of Appeal to deal with Malcolm and my view of the situation might have been slightly different had I seen the Malcolm point, this is not a case which could be described as unreasonably brought or misconceived.  It has engaged our attention and although the Claimant has lost, she has not behaved nor has her legal team, unreasonably, forcing a condemnation under one of our rules.  I note she still has an outstanding order for costs against that.  So this slight application for costs is dismissed.