Following an important decision by the Court of Appeal in Nottingham County Council v Meikle (2004, IRLR 703), trade unions will now be able to argue that extending a sick pay scheme may be a reasonable adjustment under the disability legislation. The Court of Appeal also confirmed that applicants can claim constructive dismissal under the Disability Discrimination Act (DDA).
What were the basic facts?
Ms Meikle had been working as a teacher for the council since the early 1980s, initially part-time and then full-time. In 1993 she started to suffer from a deteriorating eye condition, which resulted in the loss of all her sight in one eye and some sight in the other.
She asked the school to make a number of adjustments, such as enlarging the print on the daily timetable, and for more 'non-contact' periods so that she could prepare work for her classes in daylight, rather than after dark. Nothing was done to help her.
Inevitably, Ms Meikle started to suffer from eye strain and had to take time off work. Her doctor said she was also suffering from stress. In July 1999, she lodged a claim for disability discrimination.
On 10 September the school suspended her because of her absence, and she was put on half-pay from 17 December. This was in accordance with the local authority's policy that an absence from work of more than 100 days resulted in a reduction of sickness benefit.
Subsequent negotiations to enable her to return came to nothing and she resigned on 30 May. She brought a further tribunal complaint that she had been discriminated against on grounds of disability, and that she had been unfairly and wrongfully, constructively dismissed.
What did the tribunals decide?
The employment tribunal found that Ms Meikle had been discriminated against in a number of respects under the DDA, and had been placed at a substantial disadvantage as a result. However, it said she had not been constructively or wrongfully dismissed, and rejected her complaint that the local authority had unlawfully discriminated against her by placing her on half pay.
The employment appeal tribunal (EAT), however, said that the tribunal was wrong to say she had not been constructively dismissed. Instead, it held that the local authority had been in fundamental breach of contract because it had failed to carry out reasonable adjustments, and that she had resigned in response to that breach.
It also said it was wrong to hold that a constructive dismissal does not fall within the scope of the word "dismissal" in the Disability Discrimination Act, and was therefore not in itself a discriminatory act.
What did the Court of Appeal decide?
The Court of Appeal agreed with the EAT. It concluded:
- that Ms Meikle resigned in response to her employer's fundamental breach of contract that is, she was constructively dismissed
- that the constructive dismissal was itself a discriminatory act under the DDA
- that unlike payments to an employee's pension or insurance scheme, the payment of sick pay was an arrangement which could be subject to the employer's duty to carry out reasonable adjustments; this follows the previous decision of the EAT case of Hood v London Clubs Management, which was backed by the GMB
- that reducing Ms Meikle's sick pay by half amounted to less favourable treatment that could not be justified by the employer: this was for the simple reason that had the employer made reasonable adjustments to her working patterns, she would not have had to take so much sick leave and would not therefore have been put on half pay.