Meikle v Nottinghamshire County Council
|England & Wales
|Lord Justice Keene,Mr Justice Bennett,Lord Justice Thorpe
|08 July 2004
| EWCA Civ 859
|Case No: A1/2003/2210
|Court of Appeal (Civil Division)
|08 July 2004
 EWCA Civ 859
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL
(HHJ Ansell, Ms L P Drake and Mr B V Fitzgerald MBE)
Royal Courts of Justice
London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Keene
Mr Justice Bennett
Case No: A1/2003/2210
Mr J Cavanagh Q.C. and Mr S Jones (instructed by County Solicitor, Nottingham County Council) for the Appellant
Mr B F Langstaff Q.C. and Mr D Massarella (instructed by Disability Rights Commission, Manchester M4 3AQ) for the Respondent
This appeal raises a number of issues involving employment and discrimination law. These can be summarised as whether the respondent established that she had been constructively dismissed by her employer, the appellant; whether constructive dismissal amounts to a "dismissal" within the meaning of the Disability Discrimination Act 1995 ("the DDA"); and whether the reduction in the respondent's sick pay by fifty per cent after one hundred days absence from work could amount to and did amount to discrimination under the DDA.
On each of these issues the Employment Tribunal ("the tribunal") found for the employer, but was reversed by the Employment Appeal Tribunal. ("the EAT"). The employer, Nottingham County Council ("NCC"), now appeals from that decision. As I shall describe, the employee, Mrs Gaynor Meikle, was successful before the tribunal on a large number of complaints which she brought against the NCC of unlawful discrimination under the DDA, and those were not the subject of an appeal to the EAT.
The Main Facts:
Mrs Meikle began working for the NCC in 1982 as a part-time teacher, becoming full-time in 1990. Since 1985 she worked at Gedling School. In about January 1993 she began to suffer from a deteriorating visual condition, and as a result she lost the sight of one eye and her eyesight in the other eye deteriorated. That meant that reading made her feel tired, but she found it easier to read if the printed word was enlarged.
She found that she had a particular problem at the school with a document produced each morning showing which teachers were required to cover other teachers' classes. This daily cover timetable was printed in very small print. From about May 1993 she explained to the Head Teacher, Mr Lamb, that she needed an enlarged copy of this daily timetable but no arrangements were ever successfully made over following years for her to be provided with an enlarged copy.
Some other steps were taken to assist her, but because of noise and other problems it was suggested in March 1998 that her textile teaching (one of four subjects she taught) should be moved to a room designated as DT6. That was located at the other end of the school from another classroom where she regularly taught. She asked that her timetable be adjusted so as to allow for the problems created by this physical separation, but no adjustments were made even though, as the tribunal found, "it would have been practicable to do so".
The tribunal also found as a fact that the NCC did not consider her needs when drawing up the 1998/1999 timetable. One of the adjustments she sought to her working arrangements was an increase in what were called "non-contact" periods, essentially periods when the teaching of pupils did not take place, so that she could do more of the necessary preparation and other work during daylight hours rather than after dark. The tribunal found that she was given fewer such non-contact periods than could have been achieved.
Because of her eye-strain, Mrs Meikle had a number of absences from work. In particular she started a period of absence on 13 June 1999. In a report to the NCC in August 1999, a Consultant Occupational Health Physician, Dr Thompson, referred to her distress "as a result of continuing delays and difficulties in implementing the advice given to facilitate her continuing duties" and added that
"the main problem in the past has been her visual impairment but in view of the factors noted above, the effects the situation has had on her general health now appears to be a significant concern."
By now Mrs Meikle had instructed solicitors to act on her behalf, and on 23 July 1999 she presented the first of her two originating applications, alleging disability discrimination.
On 10 September 1999 Mrs Meikle was told by an officer of the NCC that she was suspended because of her absence. This was done under the terms of a Department for Education Circular which had in fact been superseded in May of that year. The new Circular in force at the time of the suspension provided that such a step should only be carried out on the advice of an appropriately qualified medical adviser. In due course the tribunal found that this suspension was irrational and unjustified.
Mrs Meikle was put onto half-pay as from 17 December 199This was the result of a policy of the NCC whereby an absence from work for more than one hundred days resulted in a reduction of sickness benefit. She did not apply for the NCC to exercise its discretion against making such a reduction.
Various negotiations then took place during the early months of 2000. A further Consultant Occupational Health Physician, Dr Platts, reported on 29 February 2000 that Mrs Meikle had quite good distance vision, so that she would have no great difficulty in seeing pupils in her classes, but that it took her much longer than her colleagues to carry out routine reading, preparation of coursework and marking pupils' work.
On receipt of that report, her solicitors wrote on 8 March 2000 to the NCC, setting out "the main reasonable adjustments requested by our client". There were eight adjustments requested, including
'1. enlargement of all written materials, especially the daily cover timetable and notices for departmental meetings", and
'9. (sic) additional non-contact time to allow our client to mark work during daylight hours at school and to do less marking at home in the evenings."
In its response the NCC commented that it would be difficult to reduce her contact time further but that the enlargement of written materials was "not a difficult issue". Mrs Meikle's solicitors replied to this by letter dated 15 May 2000, in which they went through each of the eight items in detail, dealing with the comments made by the NCC in its response. On the issue of non-contact time, it was said by her solicitors that there was another member of staff, not disabled, who had more non-contact time than she did, and they did not agree that more non-contact time could not be made available if the NCC wished.
By a second letter of the same date to the same officer of the NCC, her solicitors referred to a meeting which had taken place to assess what reasonable adjustments were required to enable Mrs Meikle to return to work. The letter continued:
"For the sake of clarity we confirm that the reasonable adjustments our client is seeking are as set out in our letter to the County Council dated the 8 th March 2000 (copy enclosed).
If our client is able to return to teaching textiles in the old Textiles Room, only the reasonable adjustments numbered 1 and 9 in our letter dated the 8 th March 2000 will need to be made."
The letter then stated that Mrs Meikle had been suffering from disability discrimination since 1993 and had been asking for "the other reasonable adjustments outlined above" since 1996. It then went on as follows:
"If the reasonable adjustments she has been seeking are made, she will be fit to return to work immediately. Because of the vast length of time over which our client has been discriminated against, and the loss of income she has suffered and will continue to suffer as a result (since her pay was cut to half pay from the 17 th December 1999) our client will require the County Council's agreement to the following conditions before she returns to work:-
1 That she is allowed to return to work on a part time basis for a term (to allow her to adjust to returning to work after being absent since the 17 th June 1999) before resuming her full time duties;
2 That she is compensated for her loss of pay since the 18 th December 1999 when she went on to half pay. This will need to include compensation for loss of pay as a result of our client returning to work on a part time basis;
3 That she is compensated for her injury to feelings (an amount will need to be agreed before our client returns to work).
4 That Malcolm Lamb and Jenny Coleman are sent on a course to learn about disability discrimination in the workplace and how to treat disabled people fairly. This is particularly important to our client as she considers that at present neither Malcolm Lamb nor Jenny Coleman understand what their legal obligations are and she does not feel that she can return to work until they have this understanding.
Our client is also concerned that this matter should not drag on indefinitely. For this reason, she requires the Council's agreement to the above terms in principle within 2 weeks with the compensation figures and details of the course Malcolm Lamb and Jenny Coleman will attend, being finalised within 4 weeks thereafter.
If agreement in this matter cannot be reached within the time scale proposed, our client will have no alternative but to conclude that there has been a complete breakdown of mutual trust and confidence between her and her employer, leaving her with no alternative but to resign from her position with immediate effect."
The solicitor for NCC replied on 22 May to both...
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