Case 2402300/2019 · Employment Tribunal
Mrs Susan Spencer Respondent 1: Respondent 2: The Governing Body of Merefield School Sefton MBC v Respondent — 2020
- Case reference
- 2402300/2019
- Decision date
- 26 March 2020
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Shotter
- Panel members
- Mrs M Plimley, Mrs JC Fletcher
Parties
1 namedClaimant
Mrs Susan Spencer Respondent 1: Respondent 2: The Governing Body of Merefield School Sefton MBC
Respondent
- —
Key findings
Tribunal's reasoningMrs Susan Spencer was employed as a teaching assistant at Merefield School from 1 September 2013 and went on sick leave from 20 November 2017. The respondent accepted that she was disabled for Equality Act purposes by reason of a prolapsed lumbar disc with radiculopathy. Where there was conflict in the evidence, the tribunal preferred the evidence of Sue Clare, Sharon Tipping and Kathryn Hadley, supported by contemporaneous notes, over the claimant's account.
On the disability discrimination claim, the tribunal rejected the pleaded PCP that the claimant had to return to OAK SM in order to resume work. It found that the claimant was not told she must return to that class, and that the only real obstacle to returning was her ill-health. Medical evidence in 2018, including occupational health and GP fit notes, showed that she remained unfit for work, had no return date, and was not in a position to undertake her duties; the tribunal found that discussions about moving her to OAK HG, to another class, or into administration would not have resulted in a return to work at that stage. It also found the administrative vacancy was short-term, required qualifications and school-office experience the claimant did not have, and was not a reasonable adjustment.
The constructive dismissal and breach of contract claims also failed. The tribunal accepted that the respondent did not deal with the December 2018 grievance perfectly, including in relation to appeal rights, but found that the claimant's requested outcomes were addressed in substance and that later occupational health referral was not a repudiatory act. It found no threatened dismissal, no conduct likely to destroy or seriously damage trust and confidence, and no causal link between the resignation on 14 March 2019 and any fundamental breach by the respondent. The tribunal also found that the claimant had affirmed the contract before resigning. No award was made.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Disability discrimination | Failure to make reasonable adjustments under sections 20 to 21 of the Equality Act 2010. The tribunal found there was no PCP requiring the claimant to return to OAK SM, no substantial disadvantage of the kind pleaded, and no reasonable adjustment that would have enabled a return to work before resignation. All claims against the second respondent were dismissed upon withdrawal. | Dismissed | Disability | — |
| Constructive dismissal | Constructive unfair dismissal under section 95(1)(c) ERA 1996. The tribunal found the respondent did not commit a repudiatory breach, did not threaten dismissal, and that the claimant did not resign in response to conduct amounting to a fundamental breach of the implied term of trust and confidence. The claimant had also affirmed the contract before resigning. | Dismissed | — | — |
| Breach of contract | The tribunal found the respondent was not in breach of contract. Although the grievance and absence management were not handled strictly in line with the respondent's own policies and ACAS guidance, that did not amount to a contractual repudiation or a fundamental breach. | Dismissed | — | — |
Legal tests applied
13 references- s.20 EqA 2010 reasonable adjustments duty
- s.21 EqA 2010
- Higgins four-part approach
- Rowan PCP test
- Latif evidential threshold
- s.136 EqA 2010 burden of proof
- Western Excavating test
- implied term of trust and confidence
- Buckland objective test
- Malik trust and confidence
- Omilaju last straw
- s.95(1)(c) ERA 1996
- s.98(4) ERA 1996
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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