Osei-Adjei v RM Education Ltd (formerly RM Education plc) UKEAT/0461/12/JOJ

Subjects: Failure to make reasonable adjustments – psychiatric injury – compensatory award

Facts

C worked as an educational consultant for R. R was a company engaged in the supply of ICT products and services for education. It was conceded by R that C was disabled within the meaning of the Disability Discrimination Act 1995 by reason of dyslexia. C commenced employment on 4 Jan 2010 and disclosed to R that he had dyslexia but that no adjustments had been made for him in his previous post. C found work increasingly stressful and by June 2010 blamed this on his dyslexia. An improvement plan was put to him on 18 May 2010. On 8 June 2010, C left work and never returned. He was signed off for stress and his GP diagnosed depression. C raised a grievance which was dealt with in July 2010 in which the view was taken that the relationship was reparable and that C’s requested reasonable adjustments in his grievance had already been made. C resigned on 11 February 2011 and the improvement plan was never started. He brought claims of disability discrimination, victimisation and unfair dismissal. The Employment Tribunal dismissed all but his failure to make reasonable adjustments claim. The Employment Tribunal found that at the time of his resignation he had been pronounced medically fit to return to work and that the employer should have carried out a workplace assessment before starting C on the improvement plan. C was awarded £4,000 for injury to feelings and £10,000 for psychiatric injury. C’s case on appeal was that his resignation did not break the chain of causation and he should be entitled to compensation for future loss of earnings and diminution of his earning capacity on the labour market. R’s case on cross-appeal was that £10,000 was too high in terms of compensation and the appropriate award would have been £3,000 with reference to the JSB Guidelines.

Held

The Claimant had attempted to rely on the authority of Prison Service v Beart no 2 [2005] EWCA Civ 467 which was authority for the proposition that an employer who had unfairly dismissed a claimant could not rely upon its wrongful act to minimise a claimant’s compensation. The EAT came to the view that the Employment Tribunal were entitled to disapply that principle with reliance upon Ahsan v Labour Party (2011) UKEAT/0211/10 which is authority for the proposition that the principle does not apply in cases where the termination of the employment is brought about by the voluntary act of the claimant. The EAT found that it was possible for the Employment Tribunal to view the resignation as a break in the chain of causation on the facts of this case and as C was deemed medically fit to return to work at the date of resignation there was no handicap on the labour market. Furthermore, in response to R’s cross-appeal the EAT found that the award of £10,000 was excessive. The EAT awarded the sum of £5,000 which was then subjected to a reduction for contribution by C of 40% leading to a total award of £2,000.

Comment

On the basis of the EAT’s decision claimants should be well advised if considering constructive dismissal that they do not “jump the gun” if the employment relationship is potentially reparable and reasonable adjustments can be made lest they be subjected to a reduction to their compensatory award. Interestingly, permission to appeal to the Court of Appeal was granted by LJ Rimer in April 2014. The Court of Appeal expressed a view in this short decision that C’s resignation may require a discount to be applied to any damages recoverable for a diminution in earning capacity but it was not clear to the Court of Appeal how it can wipe out the claim altogether.