Ms J Brown v Deerlands Day Nursery Ltd — 2020

The claimant worked for Deerlands Day Nursery Ltd first on a zero-hours basis and then, from July 2018, on a fixed-term maternity-cover contract. After an ankle injury in the employer's car park on 17 December 2018, she was off work and later produced a fit note saying she could return to amended duties. At the 7 February 2019 meeting she said she could not kneel or lift heavy objects, but could do some light duties. The tribunal found she could perform some light duties and accepted that the respondent had genuine health and safety and staffing-ratio concerns, so it was entitled to seek proper medical evidence and a risk assessment before permitting her to resume full duties.

The tribunal did not treat the contractual expiry of the fixed-term role itself as a constructive dismissal, because notice was given in accordance with the contract. However, it held that the later handling of the claimant's return to her substantive zero-hours role was unreasonable. The emails of 11 and 14 February 2019 threatening disciplinary action and deciding matters in her absence, together with the communication that her hours would be reduced going forward, were found to breach the implied term of mutual trust and confidence. The claimant resigned on 6 March 2019, and the claim for unfair constructive dismissal succeeded.

On the Equality Act claim, the tribunal accepted that the injury had a substantial adverse effect on normal day-to-day activities between 7 February and 6 March 2019, but was not satisfied that the effect was likely to last 12 months or more. The claimant was therefore not disabled for the purposes of s.6 Equality Act 2010 at the relevant time, and the reasonable-adjustments claim failed. The tribunal also said that it would not have been reasonable to require another member of staff to do the lifting and bending long term, or to use a chair for nappy changing.

The claimant accepted that she had been paid her notice, so that issue was dismissed on withdrawal. On remedy, the tribunal awarded a basic award of £1,920 and £500 for loss of statutory rights on the constructive dismissal claim, and left further compensatory issues for a later remedy hearing if required, including possible overlap with personal injury compensation, the hours basis for loss calculations, and mitigation.