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Queen's University
 

Meikle

Under U.K. human rights law, what happens to an employee's benefits if she is forced to resign as a result of her employer's refusal to accommodate her disability (constructive dismissal)?

Facts:

Gaynor Meikle, a Nottingham school teacher with over thirty years of experience, developed a disability when her sight degenerated in 1993.  She asked her employers to make improvements, such as enlarging written materials and taking on extra non-teaching hours for marking and class preparation.  In 1999, when the changes were refused, she went on sick leave. Consequently, she was suspended and her sick benefits were reduced. She was forced to resign in 2000.  In response , Mrs. Meikle made a claim under the Disability Discrimination Act (DDA) for discrimination and constructive dismissal The Disability Rights Commission (DRC) backed the precedent setting case, arguing that constructive dismissal is covered by the DDA when the employer fails to make crucial adjustments to the work place that allows a person with a disability to remain in the workplace, and that the employer cannot suspend or reduce pay if those actions are the result of the employer's unwillingness to reasonably accommodate. (Nottinghamshire County Council v Meikle [2004] EWCA)

Questions:

  1. Does a "constructive dismissal" constitute a "dismissal" within the meaning of the Disability Discrimination Act 1995 and thus subject to a remedy by the tribunal?
  2. Is the employer entitled to reduce a person's benefits when this results from the employer's lack of willingness to provide reasonable changes to the workplace to accommodate a disability?

Rulings:

  1. No
  2. Yes

Reasoning

  1. Mrs Meikle's case had first been decided by an Employment tribunal that had followed a precedent set by a previous Employment Appeal Tribunal (EAT) decision in 2001 (Harley), which held that "constructive dismissal" did not fall within the scope of the word "dismissal" in the Disability Discrimination Act (DDA) and therefore did not itself constitute a discriminatory act. The case was appealed to the EAT which considered a series of cases by that tribunal that went back and forth on the issue of whether "constructive dismissal" constituted discrimination under the DDA. The Employment Appeal tribunal chose to follow the reasoning of those cases that found that the constructive dismissal of Mrs Meikle was a discriminatory act within the meaning of the 1995 Act, that Mrs. Meikle's employer had breached an implied term of her contract of employment in refusing reasonable accommodation. The employer appealed to the Court of Appeal who, in this final decision, affirmed the EAT's reasoning that the word "dismissed" in the DDA should be given a "wide meaning".
  2. The ruling makes it clear that, just as in Canada,  employers must make reasonable adjustments in the workplace, and will have to pay sick pay under the DDA when they fail to do so, if the consequence is that the disabled person is unable to work because adjustments have not been made.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000