APPEARANCES
| For the Appellant |
MISS J DUNLOP
(of Counsel)
Instructed by:
Messrs Martin & Co Solicitors
St James's Buildings
79 Oxford Street
Manchester
M1 6EJ |
| For the Respondents |
MR Z DHAR
(of Counsel)
Instructed by:
EEF North West Legal Services
Mount Pleasant
Glazebrook Lan
Glazebrook
Warrington
Cheshire
WA3 5BN |
SUMMARY
Contract of Employment – Wrongful dismissal
Unfair Dismissal – Constructive dismissal
Disability Discrimination – Reasonable Adjustment
Unfair dismissal and disability discrimination. Claimant aggrieved at Respondents' failure to dismiss a fellow employee who assaulted him and resigned, claiming unfair constructive dismissal and disability discrimination (for failure to dismiss fellow employee as a reasonable adjustment). Tribunal held that the decision not to dismiss was within the range of reasonable responses open to the Respondents and rejected the claim.
On appeal, it was held that the range of reasonable responses test was relevant in the circumstances and tribunal's decision upheld.
THE HONOURABLE LADY SMITH
Preliminaries
- This case concerns a claim of unfair (constructive) dismissal and disability discrimination. Before the Employment Tribunal sitting at Manchester, Chairman Mr M E Coles, in a judgment dated 29 November 2005, the Claimant was found not to have been constructively dismissed and his complaint of disability discrimination was dismissed.
Introduction
- This is an appeal against the decision of the Employment Tribunal. He was represented before the tribunal by Miss R Eccles, solicitor and by Miss Dunlop of counsel, before us. The Respondents were represented by Miss S Malik of counsel before the tribunal and by Mr Dhar of counsel, before us. Miss Dunlop invited us to uphold the appeal and find that the Claimant had been unfairly constructively dismissed, which failing to remit the case to a differently constituted tribunal. She also invited us to find that the Respondents had failed to make reasonable adjustments and uphold the disability discrimination claim accordingly. We propose to refer to parties as Claimant and Respondents.
Background Facts
- The Respondents are a college of further education which specialises in the vocational training of students to work in the construction industry. The Claimant began working there as a lecturer in 1999 and became Deputy Head of Construction in May 2000. At about the end of 2003, another manager, Stephen Jarvis, was appointed to work alongside the Claimant. They were both given the job title of "Curriculum Manager".
- The Claimant and Mr Jarvis were acquainted prior to working together and had been on good terms. Their relationship deteriorated, however, largely because, according to the Claimant's perception, he worked harder than Mr Jarvis. The head of department, Mr Weston, became aware that the two men had a bad relationship and referred the matter to the Curriculum Director, Mr Smith.
- A meeting was arranged for 11 March 2004, between the Claimant, Mr Jarvis and Mr Smith. It was not an easy one. In the course of the meeting , the Claimant was verbally offensive towards and concerning Mr Jarvis and Mr Jarvis lost control and punched the Claimant in what the tribunal found was a violent and sustained attack. His attack on the Claimant ended only when Mr Smith pulled him off.
- Mr Jarvis was immediately suspended from work. After a visit to hospital the Claimant requested that he be allowed to stay off work for a while as he was shocked and upset in addition to being bruised and cut. His request was acceded to.
- Matters were then put in the hands of the Respondents' HR Manager who wrote what the tribunal describe as an "insensitive" letter to the Claimant referring to Mr Smith's concerns about the part the Claimant may have played that led to the assault. An investigation followed which was split into two parts, one of which was a disciplinary procedure against Mr Jarvis regarding the events of 11 March and their immediate cause. The other was to be an investigation into the wider background.
- The disciplinary hearing against Mr Jarvis took place on 22 April 2004, by which time the Claimant had returned to work. The outcome was that he was demoted to a non-management role which involved a significant reduction in salary, that he was required to issue a verbal apology to the Claimant and that monitoring arrangements were to be put in place regarding any future contact between the two men. Whilst dismissal was an option, the Respondents decided that Mr Jarvis should not be dismissed in respect that his actions were found to be completely out of character, that there had been a strong element of provocation by the Claimant, that he had 17 years history of service with the Respondents with no prior disciplinary history, that he was suffering from a number of personal problems including family illness at the time, that he had shown a great deal of remorse and that the Vice Principal, who had held the hearing, was satisfied that there would be no repetition of the conduct. It was also determined that future contact between the two men would be kept as minimal as possible. It was also made clear to Mr Jarvis that any further improper behaviour on his part would be dealt with by instant dismissal.
- The Claimant was advised of the outcome of Mr Jarvis's disciplinary hearing on 22 April 2004. His reaction was that he was shocked and he left the Respondents' building and did not return again. He advised the Respondents that he did not see how he could return to work alongside Mr Jarvis and told them that he had lost faith in them. He subsequently terminated his employment with them by a letter from his solicitors dated 6 September 2004 giving three months notice and in which it was contended that:
"in requiring our client to continue to work in the vicinity of another employee who had admitted to assaulting him is a breach of the implied term of trust and confidence and the requirement to provide a safe place of work."
That letter was written after the Claimant had intimated a grievance to the Respondents on about 4 May 2004. Their HR Manager tried to arrange a meeting with the Claimant to discuss it and eventually managed to fix such a meeting for 1 September. She sent a letter to the Claimant indicating that, at that meeting, she hoped to discuss with him his then current health, his concerns about returning to work, and an update on the changes within the construction team for the next academic year. However, his solicitor cancelled that meeting and sent the letter dated 6 September to which we have referred above.
- On 6 May 2005, a diagnosis that the Claimant had, since March 2004, been suffering from a post-traumatic stress disorder was confirmed in a report from Mr A G Parillon, Consultant Psychiatrist.
The Tribunal's Judgment and Reasons
- As we have indicated, the tribunal found in favour of the Respondents. They articulated some criticisms of the Respondents, including criticism of the decision to split the investigation into two parts since it meant that although Mr Jarvis was able to make allegations about the Claimant's prior conduct towards him at his disciplinary hearing, the Claimant had not been interviewed regarding them.
- However, the tribunal did not consider that the criticisms they made were such as to show the requisite breach of contract by the Respondents. They also found that, after the disciplinary hearing:
"…in reality, the chances of Mr Jarvis either further assaulting, threatening assault or making the claimant fearful for his safety, were so remote as to be negligible…" (paragraph 56)
At paragraphs 50 – 52, they explain:
"50. The Tribunal has already made some criticism of the way in which the respondent conducted this whole matter, including the conduct of the disciplinary hearing relating to Mr Jarvis. However, it understands why the respondent conducted it in the way that it did and accepts that the procedures used were genuinely motivated. In any event, it does not seem to this Tribunal that the conduct of a disciplinary hearing relating to another employee can be of direct relevance to a constructive dismissal claim by the claimant unless, of course, it was conducted either deliberately or so negligently that it fundamentally breached the contract of employment between the claimant and the respondent.
51. The Tribunal is further not entitled to substitute its own view for that of management in relation to the decision not to dismiss Mr Jarvis. The respondent acknowledged that the assault amounted to gross misconduct and severe sanctions were imposed upon Mr Jarvis, even though he was not dismissed. Just as the Tribunal has to adopt the test of whether a decision to dismiss is within the band of reasonable responses from a reasonable employer, similarly a decision not to dismiss must be looked at using the same test.
52. In essence, therefore, the Tribunal is satisfied that the decision by the respondent not to dismiss Mr Jarvis could not and did not amount to a fundamental breach of the contract of employment between the claimant and the respondent."
Then, at paragraph 61, they summarised their findings:
"61. In extremely difficult circumstances following an incident for which the respondent was not responsible, the Tribunal is satisfied that, within the range of reasonable responses test, the respondent did as much as it could to enable the claimant to return to work under acceptable conditions and the claimant failed in his responsibility to co-operate with the respondent to "fine tune" those arrangements. There was therefore no breach and certainly no fundamental breach, of the contract of employment on the part of the respondent and therefore the claimant was not constructively dismissed. His complaint of unfair dismissal generally is therefore dismissed."
Regarding the disability discrimination claim, it was contended that the Respondents were bound to dismiss Mr Jarvis by way of a reasonable adjustment, in compliance with their duties under section 4A of the Disability Discrimination Act 1995. The tribunal accepted that the Respondents had an obligation to make it as sure as it could that the Claimant was able to feel confident that he could return to work in safety. They, however, rejected the claim. At paragraphs 57-9, they explain why:
"57. It was only possible for the respondent to explore and set up arrangements which would eliminate or reduce to a minimum contact between the claimant and Mr Jarvis by discussions with the claimant and/or his representative. Similarly, the respondent could only make reasonable adjustments to encourage the claimant's return to work by exploring what adjustments might be appropriate in discussions with the claimant or his representative.
58. The respondent's management had made it quite plain to the claimant both verbally and in correspondence that they were willing and anxious to enter into such discussions positively, constructively and sympathetically. They proposed meetings at any location or time to suit the claimant and his representatives. Indeed, immediately before the claimant's resignation, a meeting had actually been agreed and arranged but was cancelled by the claimant's solicitor.
59. Notwithstanding, therefore, the Tribunal's sympathy with the claimant, from a practical point of view, the unanimous judgment of the Tribunal is that there was effectively nothing more that the respondent could have done to satisfy the claimant's legitimate concerns and to ensure his safety and well being on his return to work."
In short, as confirmed at paragraphs 61 and 62, the Tribunal took the view that, as regards their disability discrimination obligations, the Respondents had done as much as they could have done.
Relevant Law
- The starting point which is often not spelt out but which, for reasons that will become apparent, merit specific reference in this case, is to look at the appropriate provisions of the Employment Rights Act 1996. Section 94 provides that an employee has the right not be unfairly dismissed. Section 95 provides:
"(1) For the purposes 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."
- Thus, where an employee resigns, only if he can be treated as having been dismissed under section 95(1)(c) does consideration then pass to the well known provisions of section 98 regarding the determination of the question of whether or not the dismissal is fair or unfair.
- Further, the question of whether or not an employee is entitled to terminate his contract without notice falls to be determined according to the law of contract, in particular, according to what the law says regarding what terms are implied in a contract of employment.
- It is well established that employers are under an implied obligation that they will not, without reasonable and proper cause, conduct their business in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee: Malik v Bank of Credit and Commerce International SA (in liquidation) [1997] ICR 609; Western Excavating v Sharp [1978] IRLR 27). In the event of breach of that term, an employee who resigns in response will be able to claim that he has been constructively dismissed.
- Regarding disability discrimination,
"4 Discrimination against applicants and employees
(1) …
4A Employers: duty to make adjustments
(1) Where –
(a) a provision, criterion or practice applied by … an 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…having that effect."
Submissions for Claimant on Appeal
- Miss Dunlop intimated that her principal argument related to unfair dismissal. She referred to the case of Malik and submitted that it was self evident that the manner in which the Respondents investigated the incident of 11 March and the decision not to dismiss Mr Jarvis were examples of conduct which, on an objective view, were likely to cause serious damage to the employer/employee relationship. Alternatively, the Tribunal's decision was perverse; that was a submission which she made under reference to the fact that they had made some criticisms of the Respondents' handling of matters. The argument seemed to be that it had to follow, inevitably, from those criticisms, that the Claimant was justified in resigning and had done so in circumstances which amounted to unfair constructive dismissal. It is fair to say, however, that the Claimant's perversity argument was not elaborated at all; Miss Dunlop advised that it was "advanced" but that was, plainly, without much enthusiasm and without any real effort to persuade us of its merits.
- Miss Dunlop also submitted that by considering the band of reasonable responses test, as they had done at paragraph 51, the Tribunal had thereby lost sight of the need to look at and assess the Respondents' treatment of the Claimant. The band of reasonable responses test was not, she said, meant to apply to a decision not to dismiss and the Tribunal's recourse to it fatally undermined their decision. It was also, she submitted, worrying that the Tribunal had referred to the "range of reasonable responses" rather than the "band of reasonable responses" although it was not entirely clear what she considered was different about the two expressions.
- Miss Dunlop submitted that the Tribunal ought to have first asked whether the Respondents' conduct was such as was likely to seriously damage or destroy the relationship of trust and confidence between employer and employee. Then and only then was it open to them to ask whether it was reasonable conduct. They had not done so and their approach was, accordingly, erroneous.
- Reference was also made to the case of Hobbs v British Railways Board EAT/340/94, a case which was similar on the facts and in which His Honour Judge J Hicks QC commented in the judgment of this tribunal that it is important to consider whether the course actually followed by the employers was in fundamental breach of its obligation to take reasonable steps by way of support of the Claimant, Mr Hobbs, something which required them to consider whether what was done was within the range of reasonable responses of a reasonable employer to the situation (p.5-6 of the judgment). It was not entirely clear how the passage assisted the Claimant's argument in the present appeal. It seemed, rather, to support the Respondents' case.
- Regarding the disability discrimination claim, Miss Dunlop submitted that there was a striking lack of legal analysis in the Tribunal's judgment. They had expressed sympathy for the Claimant and should not, accordingly, have regarded themselves as curtailed by the reasonable responses test when looking at the question of reasonable adjustments.
Submissions for Respondents on Appeal
- For the Respondents, Mr Dhar submitted that whereas the tribunal did not make any express reference to Malik, they had in fact applied the principles there set out, correctly. They had considered whether the conduct complained of was likely to seriously damage or destroy the relationship of trust and confidence and they had considered whether the Respondents had reasonable and proper cause for their conduct. It was evident from Malik that there was a balance of interests to be considered. The scope of the implied term was circumscribed by the requirement that the employer act with reasonable and proper cause. If an employer acts reasonably to protect one part of his business, then he will not fall foul of his obligations to his employee in another part of the business. The Respondents had a discretion as to how they dealt with Mr Jarvis and the Tribunal, rightly, recognised that.
- Mr Dhar submitted further that the band of reasonable responses test was applicable when considering whether the employer was in fundamental breach, not just when considering the dismissal complained of was fair. It was evident from the Tribunal that they were satisfied that the sanctions of Mr Jarvis that were determined on were within the band of reasonable responses and that therefore, it could be said that they had had reasonable and proper cause for their conduct. That was an approach which was not wrong in law and which the Tribunal was entitled to take.
- Separately, it did not matter, he submitted, that the Tribunal had had criticisms to make of the procedures followed by the Respondents; the Claimant had resigned not because of them but because they had not dismissed Mr Jarvis. In any event, they had expressed understanding of the approach taken, despite their criticisms of it and there was no finding in fact that the outcome of the disciplinary hearing was in any way influenced by anything said by Jarvis about the prior history between the two men .
- Mr Dhar referred to the case of Stephenson v Austin [1990] ICR 609 as authority for the proposition that a finding of constructive dismissal did not necessarily mean that the dismissal in question was unreasonable.
- Regarding the disability discrimination claim, Mr Dhar submitted that it was evident that the Tribunal had asked the correct question, namely whether the proposed adjustment of dismissing Mr Jarvis was a reasonable one. They had viewed that matter correctly, in isolation, for the purposes of the disability discrimination claim. Further, they had found that the Claimant had not co-operated with the Respondents and it was not possible for them to have worked out anything else that they could have done to help.
- Finally, Mr Dhar resisted any suggestion that the Tribunal's decision was perverse.
Discussion and Conclusions
1. Constructive Dismissal.
- This appeal was set down to be heard on the day following the appeal in the case of Abbey National PLC v Mrs E Fairbrother UKEAT/0084/06/RN since both cases raised the same issue of principle regarding the relevance or otherwise, in a case where unfair constructive dismissal is claimed following the lodging of a grievance, of the range of reasonable responses test. We, accordingly, reiterate our discussion of the relevant legal principles contained in paragraphs 28 to 36 of that judgment, which is as follows:
"[28] This appeal was presented to us as raising an important point of principle in respect of which guidance was being sought. The Respondents' concern was to establish that employers should be in no worse a position regarding the standards of reasonableness which they were expected to achieve in a case of constructive dismissal following a grievance procedure than in a case where an employee claims that he has been unfairly dismissed after having been disciplined for misconduct.
[29] We propose to look firstly at the question of when the question of reasonableness arises in each case and thereafter at questions of the content of the duty.
[30] It is evident that questions of reasonableness arise in a constructive dismissal claim at the outset, when deciding whether or not the employee has been dismissed at all, since the section 94 right does not fall to be considered unless dismissal is established under section 95. That means that the implied term requires to be examined. It is set out in Malik. We find the passage at the end of Lord Steyn's speech, under the heading 'THE EFFECT OF MY CONCLUSIONS', to be of considerable assistance:
'Earlier, I drew attention to the fact that the implied mutual obligation of trust and confidence applies only where there is "no reasonable and proper cause" for the employer's conduct and then only if the conduct is calculated to destroy or seriously damage the relationship of trust and confidence. That circumscribes the potential reach and scope of the obligation.'
What is stressed there that has, perhaps, sometimes been overlooked, is that conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it will not do so if the employer had reasonable and proper cause for the conduct in question. Accordingly, the questions that require to be asked in a constructive dismissal case appear to us to be:
1. what was the conduct of the employer that is complained of?
2. did the employer have reasonable and proper cause for that conduct?
If he did have such cause, then that is an end of it. The employee cannot claim that he has been constructively dismissed. If the employer did not have such cause, then a third question arises:
3. was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?
[31] In a straightforward unfair dismissal case, questions of reasonableness will not normally arise at the stage of determining whether or not the employee was dismissed. That is a question of fact, to be determined objectively on the evidence of what actually happened between the employer and employee. When, however, it comes to assessing whether or not, in dismissing an employee, the employer acted fairly, questions of reasonableness will then arise: section 98(4) of the Employment Rights Act provides that the resolution of that issue will depend on whether or not the employer acted reasonably or unreasonably in treating the reason he dismissed the employee as a sufficient reason. His conduct towards the employee will, at that stage, be subjected to a reasonableness test.
[32] However, we note that, although the point at which reasonableness considerations arise differs as between the two types of case, the point which is being addressed seems to be the same. It is that of whether or not, when conducting himself towards his employee in a manner which has resulted in the detriment of his job coming to an end, the employer had reasonable and proper cause for his conduct.
[33] In either event, the employer evidently has a duty to act reasonably but what does that mean? We have no difficulty in holding that that requires recognition of the fact that employers are afforded a measure of discretion in their conduct of their relationship with their employees. In particular, we are satisfied that they have a measure of discretion when deciding how to conduct a disciplinary procedure and in deciding how to conduct a grievance procedure. That is evident from the reference to 'reasonable and proper cause' in the formulation of the implied term and in the statutory requirement that they act reasonably in their response to whatever section 98(1) or (2) reason applies. It means that they must not act irrationally or perversely in the course of such procedures. They must not take account of irrelevant material. They must not fail to take account of relevant material. They must not take decisions that no reasonable employer would take. The analysis in Clark v Nomura International plc [2000] IRLR 766 is helpful in that regard.
[34] In particular, we agree that in the case of constructive dismissal following the operation of a grievance procedure, as was commented in the case of Hamilton v Tandberg Television Ltd UKEAT/65/02 12 December 2002, the band of reasonable responses approach applies. In that case, the Claimant claimed constructive dismissal following his employers' rejection of his grievance. We gratefully adopt the following passage in Judge McMullen's judgment at paragraph 22-24:
'It is suggested that the Employment Tribunal erred in law in failing to condemn the investigation. The standard against which investigation should be judged appears to us, in this case at least, to be the band of reasonable responses. As we pointed out to the advocates in this case, the Court of Appeal has recently reaffirmed that the band of reasonable responses approach applies to the conduct of investigations as much as to other procedural and substantive aspects of the decision to dismiss a person from his or her employment for conduct. See Sainsbury's Supermarkets Ltd v Hitt [2002] EWCA Civ 1588 per Mummery LJ. That, it seems to us, represents a slight lowering of the standards of fairness in an investigation of a disciplinary matter.
23. Miss Robertson submitted to us today that we should read across the approach in conduct dismissal into the case of an employer handling a grievance. We think that is sensible, at least as it is applied in the circumstances of this case, which does carry with it some criticisms of the conduct of the Applicant, albeit arising in the context of the grievance hearing.
24. So, judged against the standard of a reasonable employer, can it be said that no reasonable Employment Tribunal could have found that the failure to investigate every single person at the 4 April meeting constituted a breach of the standards required by a reasonable employer …?'
[35] We are aware that leave to appeal was sought in Hamilton and refused, the Court of Appeal, in a judgment issued on 20 March 2003 ([2003] EWCA Civ 422) confirming not only that the specific grounds of appeal did not have any real prospect of success but that there was no other compelling reason why the appeal should go ahead.
[36] We would go further than this tribunal in Hamilton, however, to the extent that we see no reason for the statement of principle expressed not being of general application. Accordingly, in a constructive dismissal case involving resignation in the context of a grievance procedure, when asking the second question we have posed above it seems to us that it is not only appropriate but necessary to ask whether the employer's conduct of the grievance procedure was within the band or range of reasonable responses to the grievance presented by the employee. We would add that we are not persuaded that it is appropriate to separate out each part of the grievance procedure to see whether it was reasonably conducted or not. Just as happens when the conduct of a disciplinary procedure falls to be considered (see: Whitbread v Mills [1988] IRLR 501), the conduct of a grievance procedure requires to be looked at as a whole. Only if it has been conducted in a manner in which no reasonable employer would have conducted it can it be said that he did not have reasonable and proper cause for his conduct."
- We were, in the present case, referred to two authorities which were not considered in Abbey National, namely, Hobbs v British Railways Board and Stephenson & Co v Austin. We have already commented on Hobbs. In particular, we note that this Tribunal was, in Hobbs, minded to take account of whether what the employers did was within the range of reasonable responses of a reasonable employer to the situation in question and we do, of course, agree with that approach. Regarding Stephenson, whilst we agree with its outcome, we note that it was pre Malik and it will be evident from our analysis of the relevant law that we would not have articulated the relevant analysis in the same way as that tribunal since it fails to identify as the important first question that of whether or not the employer had reasonable and proper cause for the conduct complained of.
- Turning to the present case whilst, unlike the circumstances in Abbey National, no formal grievance procedure had taken place prior to the Claimant's resignation, the Claimant was, from the moment of the assault, an employee with a grievance. It was evident that he wanted to see Mr Jarvis being dismissed as was confirmed by his solicitor's letter. The conduct of the Respondents which was complained of by the Claimant was what they did or, rather, did not do, in response to the detriment which he had suffered. We consider that, in the circumstances, the same principles apply as discussed and explained by us in the Abbey National case when considering whether or not an unfair constructive dismissal took place. We have no difficulty in concluding that the tribunal did not fall into error. The conduct of the Respondents of which the Claimant complained was their failure to dismiss Mr Jarvis. The Tribunal clearly considered whether or not the Respondents had reasonable and proper cause for that conduct. They reached the view that they did in respect that they were not bound to dismiss Mr Jarvis. There was a range of reasonable responses open to them and the response upon which they determined was within that range. They did not treat the matter lightly. The sanctions imposed on Mr Jarvis were real and substantial and the Respondents' genuine assessment was that repetition of his behaviour of 11 March was not going to occur. The Tribunal themselves assessed the likelihood of Mr Jarvis doing anything to cause the Claimant to fear for his safety as being so remote as to be negligible. The Respondents took steps to minimise the extent to which the two men would come into contact in the future and they were willing to talk to the Claimant about any further changes that might require to be implemented. Whilst they had some criticisms to make of the Respondents, they have explained clearly and plainly why those criticisms were not such as to lead them to a different ultimate conclusion. We also note that the main criticism, which was in respect of the Respondents' decision to split the investigations, did not have any practical effect on their decision not to dismiss Mr Jarvis; there is no finding or suggestion that anything said at the hearing by Mr Jarvis by way of allegations of earlier behaviour on the part of the Claimant had any bearing on the decision that was made. Further, provocation by the Claimant was but one of a whole series of factors which weighed with the Respondents in their decision not to dismiss.
- In all these circumstances, it was, in our view, plainly open to the Tribunal to take the view that the Respondents had responded in a manner which fell within the range of reasonable responses. They were certainly not bound to find that the Respondents acted unreasonably in failing to dismiss Mr Jarvis and did not err in failing to do so.
2. Disability Discrimination.
- We can deal with this matter shortly. The reasonable adjustment sought was the dismissal of Mr Jarvis but we cannot see that the Respondents could be held to have had reasonable cause for their conduct in not dismissing him for constructive dismissal purposes yet to have failed to make a reasonable adjustment in not doing so. If the decision not to dismiss falls to be regarded as reasonable for one purpose (constructive dismissal), it must also be reasonable for the other (disability discrimination).
- Further, even if the Claimant's case for reasonable adjustments falls to be regarded as going beyond the proposition that the Respondents should have dismissed Mr Jarvis (and we are not at all sure that it should), the Claimant effectively disabled the Respondents from giving consideration to any such further adjustments when he, through his solicitor, cancelled the meeting fixed for 1 September. In those circumstances, the Respondents could not be held to have failed in their statutory duty to make reasonable adjustments. We agree with the Tribunal's approach in that regard.
Perversity
- As we have noted, the Claimant did not seriously press this ground of appeal. We do not consider it gets off the ground. The fact that the Tribunal made some criticisms of the Respondents did not require them to find in the Claimant's favour and we are satisfied that the high test that is inherent in a perversity appeal does not begin to be met in this case.
Disposal
- The appeal falls, accordingly, to be dismissed.
