DDA law as it applies in this case

Extracts from the Tribunal’s Ruling

With paragraph numbers from the original in [square brackets].

It should be noted that more recent cases will be dealt with under the Equalities Act 2010 rather than the Disability Discrimination Act

The law: disability discrimination

[184] Sections 4(2)(a) and 4(2)(d) DDA provide that it is unlawful for an employer to discriminate against a disabled person by dismissing her or subjecting her to a detriment. A dismissal for this purpose includes a constructive dismissal; see Section 4(5)(b) DDA.

[185] Such discrimination may be in the form of direct discrimination (Section 3A(5) DDA), a failure to comply with the duty to make reasonable adjustments (Section 3A(2) DDA) or discrimination by way of victimisation (Section 55 DDA). An employer is also liable for anything done by its employees in the course of their employment (Section 58(1) DDA) or its agents (Section 58(2) DDA). The respondent in this case does not seek to rely on the so-called “statutory defence” insofar as its employees are concerned (Section 58(5) DDA). We therefore proceed on the assumption that it is liable both for the acts of Mr Gallanders and Ms Ross as its employees and, to the extent appropriate, the trustees as its agents.

Direct discrimination

[186] By virtue of Section 3A(5) DDA, direct discrimination occurs where, on grounds of the disabled person’s disability, an employer treats her less favourably than it treated or would treat a person not having that particular disability whose relevant circumstances, including abilities, were the same as, or not materially different from, those of the disabled person. The appropriate comparator in a case such as this would be a hypothetical person with the same abilities as the claimant but without the migraines from which she suffers and their associated triggers. Those abilities are as they in fact were, not as they would have been if a reasonable adjustment been made.

[187] In Aylott v. Stockton-on-Tees Borough Council [2010] IRLR 994, the Court of Appeal downplayed the importance of constructing a perfect comparator in a direct discrimination case under the DDA. Mummery LJ stated:

I am not saying that a hypothetical comparator can be dispensed with altogether in a case such as this: it is part of the process of identifying the ground of the treatment and it is good practice to cross check by constructing a hypothetical comparator. But there are dangers in attaching too much importance to the construct and to less favourable treatment as a separate issue, if the tribunal is satisfied by all the evidence that the treatment (in this case the dismissal) was on a prohibited ground.

188] Section 17A(1C) DDA sets out the manner in which the burden or proof operates in a discrimination case. Analogous provisions in the Sex Discrimination Act 1975 were analysed in Barton v. Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 and Igen Ltd & others v. Wong & others [2005] IRLR 258. In short, a two-stage approach is envisaged.

[189] At the first stage:

[189.1] The Tribunal considers whether the claimant has proved facts on the balance of probabilities from which we could conclude, in the absence of an adequate explanation from the respondent, that the respondent had committed an act of unlawful discrimination.

[189.2] This can be described as the prima facie case. It is not enough for the claimant to show merely that she has been treated less favourably than a hypothetical comparator. There must be some evidential basis upon which we could infer that her particular disability, consciously or subconsciously, was the cause of the treatment. We can cast our net widely in this regard and this can extend to an examination of circumstantial evidence. Inferences can also be drawn from breaches of Codes of Practice and answers to statutory questionnaires.

[189.3] At the first stage, we must assume that the respondent has no adequate explanation for its behaviour and therefore ignore any explanation it advances. This only becomes relevant at the second stage.

[190] At the second stage:

[190.1] This would only be reached if the claimant were to succeed in making out a prima facie case. In that event, the burden of proof would reverse and shift to the respondent.

[190.2] Section 17A(1C) DDA provides that the Tribunal “shall” (not “may”) uphold the claim unless the respondent proves that it did not commit (or is not to be treated as having committed) the alleged discriminatory act. The standard of proof is again the balance of probabilities. However, to discharge the burden of proof, there must be “cogent” evidence that the treatment was “in no sense whatsoever” on the grounds of the claimant’s disability.

[190.3] The respondent does not have to show that its conduct was reasonable or sensible for this purpose, merely that its explanation for acting the way it did was non-discriminatory; the critical question is whether such behaviour would have been afforded to the hypothetical comparator (see Glasgow City Council v. Zafar [1997] IRLR 228). Again, we can cast our net widely when testing the reason put forward by the respondent for the treatment.

[190.4] Since much of the same evidence is relevant at both the first and second stages, there is no requirement for us to manage the Hearing in a formulaic manner that allows them to be considered sequentially. Indeed, it would make little practical difference whether we took account of the respondent’s explanation at the first or second stage if the result was that we accepted that there was a valid non-discriminatory reason for the treatment.

Reasonable adjustments

[191] The DDA imposes a duty on employers to make reasonable adjustments to premises or working practices to take account of the needs of a disabled employee. In this particular case, we are concerned not with a “provision, criterion or practice applied by or on behalf of an employer” but with a “physical feature of premises occupied by the employer”. The phrase “physical feature” is broadly defined at Section 18D(2)(c) DDA to include “any fixtures, fittings … [or] equipment” in the premises.

[192] Section 4A(1) DDA provides that, where such a physical feature 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 it to have to take in order to prevent the feature having that effect. Although Section 4A DDA does not use the word “adjustment”, the term “reasonable adjustments” is commonly used to refer to the Section 4A duty and there are references to “reasonable adjustments” elsewhere in the DDA. The word “substantial” bears the meaning “more than minor or trivial” (see paragraph 5.11 of the DRC Code).

[193] An employer is under no duty to make reasonable adjustments if it did not know and could not reasonably have been expected to know that the person was disabled and likely to suffer from a substantial disadvantage.

[194] Whether or not there is a breach of the duty to make adjustments in a particular case depends on whether a particular adjustment is “reasonable”. This assessment is context-sensitive and objective. By virtue of Section 18B(1) DDA, the factors to be taken into account in determining whether a proposed adjustment is reasonable include the effectiveness of the step in ameliorating the disadvantage; the practicability of taking it; the associated financial and other costs; and the extent of any disruption to the employer’s activities.

[195] The DDA provides a non-exhaustive list of steps which could be taken by the employer to comply with its duty to adjust, and these include (at Section 18B(2)(h) DDA) “acquiring or modifying equipment”.

Discrimination by way of victimisation

[196] By virtue of Section 55 DDA, discrimination by way of victimisation would occur where the respondent treated the claimant less favourably than it treated or would treat other persons in the same circumstances and by reason that the claimant had alleged that the respondent had previously contravened the DDA (which would count as a qualifying “protected act”). For the purposes of this analysis, the claimant would be compared with someone who had not performed a protected act (see the decision of the House of Lords in Chief Constable of West Yorkshire Police v. Khan [2001] IRLR 830).

[197] It is not enough that the alleged detriment simply follows the protected act. Consciously or subconsciously, it must have been by reason of it and, for this purpose, it is sufficient if the protected act had a “significant influence” on the way the claimant was treated (see the decision of the House of Lords in Nagarajan v. London Regional Transport [1999] IRLR 572). The provisions on the two-stage burden of proof apply equally in victimisation cases: once a claimant establishes a prima facie case, the burden of proof shifts to the respondent (see the decision of the EAT in Pothecary Witham Weld v. Bullimore [2010] IRLR 572).

The law: unfair (constructive) dismissal

[198] The claimant bears the burden of proving, on a balance of probabilities, that: (1) the respondent committed a fundamental breach of her contract of employment; (2) she has not waived the breach (or ‘affirmed’ the contract); and (3) she resigned in response to the breach. The common law principle of contractual repudiation applies to the statutory test of ‘constructive dismissal’ embodied in Section 95(1)(c) ERA; see Western Excavating (ECC) Ltd v. Sharp [1978] ICR 221 CA. Accordingly, the claimant contends that she resigned in consequence of a fundamental breach of contract and that this was an unfair dismissal for the purposes of Sections 94(1), 95(1)(c) and 98 ERA.

[199] Dealing first with the question of the alleged breach, the claimant contends that the respondent has committed a fundamental breach of the implied term of mutual trust and confidence. As conventionally expressed, this requires an employer not to conduct itself, without reasonable and proper cause, in a manner likely to destroy or seriously damage the relationship of mutual trust and confidence; see Malik v. BCCI [1997] IRLR 462. The respondent’s position is that it acted with reasonable and proper cause and did not act so as to undermine trust and confidence.

[200] It is well established that an employer can breach the implied term of mutual trust and confidence by a series of actions that, cumulatively, breach the term even if, individually, they do not. It is also clear that an employee may resign in consequence of a ‘last straw’ and still argue a fundamental breach of mutual trust and confidence even where, in and of itself, the ‘last straw’ did not amount to a breach at all; see London Borough of Waltham Forest v. Omilaju [2005] IRLR 35 CA.

[201] In a previous case, Abbey National plc v. Fairbrother (EAT/0094/06), the EAT had held that, when dealing with a case involving resignation in the context of an allegedly flawed grievance process, it was necessary to ask whether the employer’s conduct of that process was within the ‘range of reasonable responses’ to the grievance presented by the employee. However, the Court of Appeal has now made clear that there is no need to assess a respondent’s behaviour by reference to a ‘range of reasonable responses’; see Buckland. The crucial question remains whether the employer, without reasonable and proper cause, behaved in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

[202] As we mentioned above, the Court of Appeal in Buckland also held that it was not possible for the party at fault to attempt to cure its repudiatory breach of contract: in the absence of a waiver or affirmation, the wronged party had an unfettered right to choose whether to treat the breach as terminal.

[203] There is no rule of law that a constructive dismissal is necessarily an unfair dismissal, but that is unlikely to be the case where the Tribunal is dealing with an alleged breach of the implied term of mutual trust and confidence. [Claimant assumes – possibly incorrectly – that this means that a constructive dismissal is LIKELY to also be an unfair dismissal where a breach of the implied term of mutual trust and confidence is found.]

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