Mrs J Davies v The Regard Partnership Limited — 2022

Mrs J Davies was employed by The Regard Partnership Limited as a locality manager and was off work from January 2019 following sickness absence caused by back pain and then a diagnosis of stage 3 breast cancer. During the respondent's merger with CMG into the new organisation Achieve Together, the claimant complained about the way her absence was handled, including the wording of the advert for an interim replacement and the fact that the new Area Director role for Wales was not advertised internally before it was offered to Melanie Isherwood.

The tribunal rejected the claimant's direct disability discrimination claim, her indirect discrimination claim, her reasonable adjustments claim and her victimisation claim. It found that the failure to advertise the Area Director role internally on one occasion was not, of itself, a PCP, because the respondent's normal practice was to advertise posts internally and externally. It also accepted the respondent's explanations for the email-access issue, the limits on correspondence during sickness absence, the timing of the grievance appeal process and the delay in responding to the Subject Access Request.

The discrimination arising from disability claim succeeded only in part. The tribunal held that the wording of the advert for the temporary replacement role, which referred to a fixed-term post with the possibility of full-time work, was unfavourable treatment because the claimant was absent due to disability-related sickness absence, and that the wording was not a proportionate means of achieving a legitimate aim. The tribunal did not uphold the s.15 complaint in relation to the internal advertising issue or the other matters raised.

The tribunal held that the advert wording and the failure to advertise the Area Director role internally were capable of cumulatively breaching the implied term of trust and confidence. It found that the grievance appeal outcome dated 5 September 2019 was the final straw, that the claimant resigned on 6 September 2019 in response to that breach, and that she was therefore constructively dismissed and unfairly dismissed within ss.94 and 98 ERA 1996. Remedy was not determined in this judgment; the tribunal directed the parties to update it on whether agreement had been reached or a remedy hearing was needed.