Education Law Speed Read – 09/04/18

Court of Appeal case of Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640

This case considered whether the time limit for bringing a claim of disability discrimination begins to run upon breach or at an alternative time, potentially extending the time limit for Claimants to bring claims against their employers.

Facts

The parties agreed that Ms Morgan was disabled for the purposes of the Equality Act due to suffering from a depressive illness. Ms Morgan was absent from work on sick leave from July 2010 to December 2011, at which point she was dismissed on grounds of capability.

Ms Morgan claimed disability discrimination and unfair dismissal on the basis that her employer, a University Health Board, had failed to provide reasonable adjustments, namely redeployment. The ET upheld parts of Ms Morgan’s claim, specifically in relation to the failure to provide reasonable adjustments, and found that it was just and equitable to allow an extension of the three-month time limit for such claims to have been brought.

Upon appeal, the EAT found that the ET had misinterpreted a letter from the employer’s occupational health adviser stating that Ms Morgan was unfit for work in any capacity from August 2011, insofar as the reasonable adjustment claim could not succeed past this date.

On remittance, the ET concluded that the time limit for the presentation of a claim began to run from August 2011 due to the reasoning above. It also stated that it would be just and equitable to extend this period, taking account of Ms Morgan’s health and the status of her internal grievance.

Court of Appeal decision

The Court of Appeal rejected the employer’s assertion that the time limit in which to bring a claim will run from the date that the employer’s duty was first breached, noting that not all time limits are fixed by reference to the accrual date of the cause of action.

The Court held that, in the case of omissions, the default rule is that the time limit will run from the date at which the respondent might reasonably have been expected to comply with their duty. This, according to the Court, was not the same as when the failure began. Allowing the time limit to run from the date at which the failure began could unfairly prejudice claimants who reasonably believe their employer is taking steps to make reasonable adjustments.

The Court held that the date on which the respondent might reasonably have been expected to comply should be determined from the employee’s point of view, looking at the facts available to the employee.

The Court also determined that the ET had a wide discretion to extend the time limit for bringing claims, as there were no factors in section 123(1) of the Employment Rights Act that specified they must have regard to certain factors. Therefore, a claimant need not establish a good reason for the delay in order for the ET to be able to extend any time limit. However, the Court said that factors such as the length of and reasons for the delay, in addition to the prejudice caused to the respondent, would be relevant.

Effect

When the time limit starts for the purposes of bringing a claim will be highly fact specific and determining this contemporaneously may be difficult. However, it is important for employer’s to consider the facts available to the employee when assessing when they may reasonably have been expected to have made adjustments and should not rely on the date of any alleged breach or failure to be the date on which the time limit for claims begins. Employers should also be aware of the Tribunal’s wide discretion to extend this time limit in the absence of a good reason for any delay in bringing a claim. This could result in time-limited claims being permitted, putting an administrative and risk burden on the employer in dealing with these.

Pets at Home v MacKenzie [2018] UKEAT/0146/17/RN

In Pets at Home v MacKenzie, the EAT found that a ‘final straw’ cannot revive a previously affirmed breach of contract in order to satisfy a constructive dismissal claim. The Employment Tribunal (ET) should not have simply focused on the final straw, but needed to also consider if the earlier acts of discrimination or breach of contract had been affirmed in relation to the Claimant’s failure to be fast tracked for the role she applied for.

Facts

The Claimant, an Assistant Manager at a Pets at Home Store, had applied twice for a promotion to Deputy Manager. The first time was in February 2015, during her pregnancy, and the second occasion being when she was on maternity leave in January 2016. On both occasions, the Claimant had not been automatically promoted into the position but had undergone an assessment, which she had then failed to pass.

In March 2016 she subsequently learned that a less experienced Assistant Manager (who had previously reported to the Claimant) had been successful in a further selection exercise for the second Deputy Manager vacancy. The Claimant said this was the last straw and resigned from her employment.

Employment Tribunal

The ET upheld the Claimant’s complaint of constructive unfair dismissal, concluding that the Claimant had previously suffered direct pregnancy and maternity discrimination. Although the ET unanimously found that the Claimant’s free-standing complaints in those respects had been brought out of time, the majority considered that subsequently learning of the apparent promotion of a colleague was the final straw for the Claimant and this, taken together with the earlier discrimination, amounted to a breach of the implied obligation to maintain trust and confidence.

The ET majority was further satisfied that the Claimant had resigned in response to the earlier pregnancy and maternity discrimination and had not affirmed the breach of the implied term, given that she had resigned shortly after the final straw. The Respondent appealed.

Employment Appeal Tribunal

The EAT concluded that the ET’s decision of discrimination should not stand. The ET had failed to satisfy the necessary burden of proof by not having regard to all the evidence, and/or reached perverse findings in some respects, by failing to demonstrate that it had engaged with the Respondent’s explanation and evidence.

The EAT found that the ET had wrongly focused only on the affirmation and delay issues in relation to the final straw. The ET should have considered whether the earlier acts of discrimination or breaches of contract, which formed part of the repudiatory breach, had been affirmed. If a breach of contract has previously been affirmed, it cannot be later revived due to a final straw.

The EAT explained that the Claimant had the choice to accept the breach and resign at the time of those acts, meaning the breach would not be affirmed. The Claimant therefore affirmed those previous breaches by not acting on them at the time. The Tribunal’s conclusion that the earlier acts could still be relied upon to resign subsequently was therefore perverse.

Comment 

This case is useful for employers facing constructive dismissal claims who believe the alleged breaches were previously affirmed by an employee. Once faced with a breach, employees have a short timeframe in which to resign to avoid affirming any alleged breaches. This case therefore emphasises the importance that employees need to act quickly in response to any breach of contract. Once alleged breaches have been affirmed they cannot be used in the future to form the basis of a constructive dismissal claim, even in circumstances where a new ‘last straw’ event arises.

If you have any queries on the above and how it will affect you, please do not hesitate to contact a member of our education team.