case roundup

This week’s case round up

No ‘constructive dismissal’
in disability claims
Commissioner of Police of the Metropolis v Harley, unreported, February
2001, EAT

Harley had suffered from
bulimia nervosa for a number of years. Disciplinary proceedings were commenced
against her and she was formally disciplined.

She appealed against that
decision and wrote to her manager stating that unless there was a satisfactory
outcome to her appeal she would consider her employment to be terminated.
Notwithstanding her letter, Harley resigned before the appeal was determined.

She brought a successful
disability discrimination claim on the basis that she had been constructively
dismissed and this constituted a “dismissal” within the meaning of Section 4
(2) of the Disability Discrimination Act 1995.

The commissioner successfully
appealed. A constructive dismissal arises when an employee resigns in response
to a repudiatory breach of contract by the employer.

While the definition of
“dismissal” in other discrimination legislation had been construed or amended
to include constructive dismissal this is not the case with the DDA.
“Dismissal” as defined by the DDA was to be given its natural and obvious
meaning and it does not encompass constructive dismissal.

Request to work
from home refused
Lockwood v Crawley Warren Group, EOR Discrimination Digest 47, EAT

On her return from maternity
leave, Lockwood worked three days a week and took two days’ holiday each week
from her annual entitlement. Consequently, she was deemed to be working full
time.

When problems arose regarding
her childcare arrangements Lockwood suggested that either she work from home
and pay for the necessary equipment herself or that she take unpaid leave of up
to six months.

CWG rejected both proposals but
agreed to Lockwood’s having two weeks’ paid leave. Lockwood resigned and
claimed she had been indirectly discriminated against on the grounds of her
sex.

The tribunal dismissed the
claim. No new requirement or condition had been applied to her by CWG because
her job had always involved full-time working. Lockwood successfully appealed.

The EAT found a request to work
from home at one’s own expense to be “conceptually similar” to a request to
work part time. Moreover, CWG’s proposal that following the two weeks’ paid
leave Lockwood would work full time did impose a requirement or condition.

The
case was remitted back to the tribunal for it to consider if the requirement or
condition could be justified.

By Eversheds. Tel: 020 7919 4500

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