Disability Discrimination - Court of Appeal

The Court of Appeal has, today, handed down its judgment in Nottinghamshire County Council v Meikle, dealing with aspects of the Disability Discrimination Act 1995.

Upholding the EAT's decision (HHJ Ansell), it held:

• that in a constructive dismissal case, the employee's resignation need only be "in part" because of the employer's breach of contract: it need not be the 'effective case' (para. 33). This is not particularly new, although Keene LJ's analysis makes interesting reading (paras. 32-33);
• the word 'dismissal' in s4(2)(d) of the Disability Discrimination Act 1995 covers constructive dismissals. The EAT's decision in Commissioner of Police for the Metropolis v Harley [2001] ICR 927, that a constructive dismissal does not fall within the definition of 'dismissal' under the Act, was wrongly decided (paras. 41-52). As a result, the three month time limit starts running from the date of the resignation, not the date of the repudiatory conduct giving rise to the resignation (para. 53);
• the duty to make reasonable adjustments includes a duty to consider paying employees during sick absence periods (even if they are only contractually entitled to reduced pay or SSP). Section 6(11) of the DDA 1995, which excludes (amongst other things) "schemes or arrangements...in respect of...(c) accident, injury or invalidity" from the duty to make reasonable adjustments applies to insurance schemes, not to sickness provisions in the contract of employment.