The No 8 Partnership v Maxine Simmons

This appeal raises questions as to the approach of the Employment Tribunal (“ET”) when making findings of constructive unfair dismissal and of direct associative discrimination. The case also demonstrates the problems that can arise in attempting to construct hypothetical comparisons absent evidence or representations from the parties relevant to an ET’s chosen comparators.

In giving this judgment, I refer to the parties as the claimant and respondent, as below. This is the respondent’s appeal against the judgment of the London Central Employment Tribunal (Employment Judge Paul Stewart, sitting with lay members Mr Soskin and Mr Allwright on 8 and 9 April 2021; “the ET”). I understand that the ET gave its decision orally at the end of the hearing, subsequently sending out the written judgment and reasons on 2 June 2021. By that judgment, the ET upheld the claimant’s claims of constructive unfair dismissal and of direct discrimination by association. The respondent appeals against the ET’s decision on both claims.

Mr England, of counsel, appears for the respondent, as he did below. The claimant was represented by her husband before the ET, but has not sought to participate in the appeal proceedings, although she does not concede the appeal.

The respondent is a private dental partnership, based in Chelsea, London. The claimant is a dental nurse, who worked for the respondent from 27 March 1990 until she resigned on 26 June 2020. Her home is in Edenbridge, Kent.

For some 18 years before the events leading to her resignation, the claimant had worked part-time. This followed the birth of her daughter, and saw her reduce down from full-time working to, initially, one day a week, increasing to two days a week in February 2016.

On 23 March 2020, the respondent’s dental practice was shut down due to the Covid-19 pandemic. The claimant and all other staff were paid in full until the end of March 2020 and then placed on furlough as of 1 April 2020.

On 20 May 2020, the respondent’s practice manager, Ms Rudman, emailed all staff to inform them of plans for re-opening the practice; as from 26 May 2020, it was planned to re-open for emergency treatment. The claimant responded to Ms Rudman the same day, asking for further information and stating that she had “grave concerns” about commuting to work. As Ms Rudman was aware, the claimant had an elderly father and was particularly concerned about the potential transmission of Covid-19. Ms Rudman responded, also the same day, expressing the hope that the claimant was keeping well and “your dad is doing ok with all this going on”.

On or about 2 June 2020, Ms Rudman ‘phoned the claimant, inviting her to state her preference for returning to work. The claimant emailed on 3 June, raising her concerns about returning to work as she had increasing caring needs for her 87–year old father, explaining that he:

Ms Rudman replied on 4 June 2020, explaining that the respondent was faced with an immediate and imperative need to try to revive its business and now needed to resume its (lower risk) orthodontic services “as soon as possible”; as such, it was unable to agree to extend the claimant’s furlough. The claimant responded the same day, saying she had carefully considered what the respondent had said and would be willing to return to work one day a week. As the ET noted:

On 8 June 2020, however, Ms Rudman again wrote to the claimant, stating that her request to work one day a week “would not be logistically possible”, going on to say:

As the ET found, that response upset the claimant, who emailed around 20 minutes later, as follows:

Ms Rudman sent the claimant a copy of her contract and, ten days after the claimant’s email, forwarded a letter, which stated that keeping the claimant on furlough would be a breach of the scheme and that the respondent needed her to return to her contracted hours, explaining:

The claimant sought legal advice at this stage and, on 22 June 2020, solicitors acting for the claimant wrote to Ms Rudman in the following terms:

As the ET recorded, the following day, the claimant saw a photograph on the respondent’s Instagram page, showing one of the orthodontists for whom she worked alongside a colleague who normally worked full-time for a dentist who had not returned to work. On the same day, 23 June 2020, the respondent replied through its solicitor, stating that the claimant had never asked for unpaid leave and otherwise responding as follows:

For its part, the ET disagreed with this analysis, noting that section 57A(1)(b) Employment Rights Act 1996 (“ERA”) allows for time off where the reason is to take such action necessary to make provision for care of a dependent who is ill, which it considered was the appropriate provision in the circumstances outlined in the claimant’s request.

On 25 June 2020, the claimant received a WhatsApp message from a colleague, saying that she had heard that the claimant was not coming back to work.

The next day, the claimant wrote a letter of resignation, explaining that the last message from Ms Rudman before the lawyers’ letters had been unfriendly and had left her with no option but to seek legal advice; she continued:

Four days later, on 30 June 2020, two of the respondent’s partners and Ms Rudman, on behalf of the respondent, signed a short email accepting the claimant’s resignation.

Considering first the claimant’s claim of constructive unfair dismissal, the ET noted (paragraph 38) that the respondent had refused to grant the claimant emergency care leave, declined her request to work one day a week as “logistically not possible”, failed to try to identify a short-term solution to her care difficulties, and notified her by email of 18 June 2020 that she needed to confirm by 22 June that she would be back at work on 25 June, working her pre-furlough two days per week.

The ET concluded that those actions amounted to a breach of the implied term of trust and confidence, explaining that it reached that decision for two principal reasons:

The ET rejected the respondent’s submission that it should find that it had reasonable and proper cause for so acting, holding:

The ET was satisfied that the claimant had resigned in response to the respondent’s breach and concluded that her actions could not be construed as amounting to an affirmation of the contract. In the circumstances, it found the claimant had been constructively dismissed and, as the respondent accepted that there could be no prima facie fair reason for dismissal, upheld her claim of unfair dismissal.

Turning to the claim of discrimination by association, the ET noted that it was conceded that the claimant’s father had Alzheimer’s disease. It found that the respondent had been wrong in its refusal of the claimant’s request for time off for dependants under section 57A ERA, as subsection (1)(b) of that provision entitled the employee to a reasonable amount of time off to make arrangements for the provision of care for a dependent who is ill. In the circumstances, the ET concluded that the basis for the respondent’s refusal of the claimant’s request for emergency leave had been:

The ET noted that the question it then had to answer was whether that amounted to less favourable treatment. Recording that the claimant had not identified a named comparator, the ET then went on to consider the position in relation to a hypothetical comparator, observing that this must be “a comparison in respect of which there must be no material difference between the circumstances relating to each case” (section 23 Equality Act 2010). In this regard, the ET carried out its task by adopting the following analysis:

Given its conclusion in respect of the comparisons it had hypothesized, the ET considered that also meant that it should assess the claimant to have been treated less favourably. In this regard, it again referred to the evidence of Mr O’Sullivan:

On that basis, the ET further upheld the claimant’s claim of direct discrimination on the associative basis of her father’s disability.

Section 94 of the Employment Rights Act 1996 (“ERA”) provides that an employee has the right not to be unfairly dismissed. Section 95 then defines what is meant by “dismissed” for these purposes, relevantly providing that:

As defined by section 95(1)(a), the termination of the employee’s contract of employment thus becomes a constructive dismissal, something that is to be determined applying a contractual analysis. As Lord Denning MR explained in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, at p 226 A-C:

A claimant contending that they have been constructively dismissed must thus demonstrate: (1) that there was a fundamental breach of contract on the part of the employer; (2) that that breach caused the employee to resign; and (3) that they did not delay too long before resigning, such that they might be said to have affirmed the contract. In the present appeal, the point in issue is that at (1): whether the ET erred in concluding that the respondent had acted in fundamental breach of the claimant’s contract.

When considering whether there has been a significant breach of contract for these purposes, although no express term may have been breached, it would be open to the ET to find that the employer has acted in breach of an implied term of the contract of employment. In the present proceedings, the claimant relied on the implied term of mutual trust and confidence, as confirmed by the House of Lords in Malik v BCCI SA (in compulsory liquidation) [1997] ICR 606, HL, which requires that an employer shall not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

For completeness, I note that section 57A ERA provides (relevantly) that an employee is entitled to be permitted by their employer to take a reasonable amount of time off during their working hours in order to provide assistance to a dependent in certain circumstances (subsection (1)(a)), or to make arrangements for the provision of care for a dependent who is ill or injured (subsection (1)(b)). Where it is contended that an employer has unreasonably refused to permit an employee to take time off as required by section 57A, a complaint may be presented to an ET, as provided by section 57B ERA. No such claim had been made in these proceedings but the respondent’s refusal to grant the claimant “emergency care leave” had been identified as one of the matters relied upon by the claimant in support of her contention that she had been constructively dismissed.

Direct discrimination is defined by section 13 of the Equality Act 2010 (“EqA”) as arising when:

In the case of Coleman v Attridge Law Case C-303/06 [2008] ICR 1128, the European Court of Justice held that “associative discrimination” on the grounds of disability was unlawful; that is, where the complainant is found to have suffered less favourable treatment not because of a protected characteristic that she possessed herself but because of that protected characteristic possessed by someone with whom she was associated (in Coleman, the employee’s disabled child). When the Coleman case returned to the United Kingdom, it was held that domestic legislative protection against discrimination (relevantly, at that time, pursuant to the Disability Discrimination Act 1995) must, therefore, be interpreted so as to extend to discrimination by association (see EBR Attridge LLP (formerly Attridge Law) and anor v Coleman [2010] ICR 242 EAT).

In determining, however, whether there has been less favourable treatment, section 23 EqA provides that there must be no material difference between the circumstances relating to each case. As Lord Scott explained in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337:

In some cases, the assessment required by section 13 EqA will involve the ET in a two-stage process: first, asking whether there was less favourable treatment, then secondly, to ask whether that treatment was because of the relevant protected characteristic. That, however, will not always be necessary (or appropriate); in particular, where there is no direct comparator, it can sometimes be impossible to decide whether there has been less favourable treatment without first determining the reason for that treatment – the “reason why”. Thus, in Shamoon, Lord Nicholls observed:

As for the assessment of the “reason why”, this requires the ET to determine why the alleged discriminator acted in the way that they did: what, consciously or unconsciously, was their reason? That is a subjective question; the reason why a person acted as they did is a question of fact (see per Lord Nicholls in Khan v Chief Constable of West Yorkshire Police [2001] UKHL 48, at paragraph 29).

Where an ET does consider it appropriate to construct hypothetical comparators in order to determine the question of less favourable treatment, it must be astute to ensure that it is truly comparing like with like. That will generally be a question identified at an early stage, thus informing the list of issues in the case, and permitting the parties to address the hypothetical comparisons in their evidence and submissions. Where that is not done, however, the ET may not be in a position to make findings using those comparisons, either because it would have no evidential basis for doing so, or because it would be unfair for it to do so. As Ralph Gibson LJ observed in Neale v Hereford and Worcester County Council [1986] ICR 471 CA, at p 486E-F:

In making this observation, I recognise that there may be cases where the ET’s construction of the hypothetical comparator would (or should) have been obvious to the parties and can have given rise to no substantial prejudice, or where that part of the reasoning is properly to be characterised as peripheral to the decision reached. In such cases, as Ward LJ noted in Stanley Cole (Wainfleet) Ltd v Sheridan [2003] ICR 1449 CA (albeit there considering a failure to afford a party the opportunity to address authorities referenced by an ET in its decision):

Even then, however, context will be everything, as Ward LJ continued:

In City of London Corporation v McDonell [2019] ICR 1175, at paragraph 50, the EAT provided some assistance as to how such issues are to be approached:

By its first ground of appeal, the respondent contends that the ET failed to correctly apply the law regarding whether there was a breach of the implied term of trust and confidence:

By its second ground of appeal, the respondent says that the ET erred in its construction and application of a comparator for the purposes of the claim of direct, associative discrimination:

Thirdly, the ET had failed to correctly identify, consider and apply the issue of causation: (i) the ET had found a non-discriminatory motivation for the act complained of – the “unwarranted interpretation” of section 57A ERA – which contradicted the finding that there had been discrimination; (ii) although it had addressed the “reason why”, it had not properly applied the “because of” test or explained why it had found a discriminatory motivation: the evidence given by Mr O’Sullivan did not relate to a disability but instead presented an attitude about all “aged parents”.

It is the respondent’s case that the errors identified mean that the ET’s decision cannot stand and its judgment must be set aside. The respondent contends that, on the ET’s findings, it would be open to the EAT to substitute its own decision, dismissing both claims. Alternatively, if this matter were to be remitted for re-determination, given the time that has now passed, there would be no benefit in this matter being remitted to the same ET and, in any event, the fundamentally flawed nature of the finding of discrimination, which had pervaded its reasoning, meant that an entirely fresh hearing, before a differently constituted ET, was required.

The claims before the ET were of constructive unfair dismissal and direct associative disability discrimination. Although it first addressed the constructive dismissal point in its reasons, the ET’s decision in this regard was based, in part, on the conclusion it had reached on the discrimination claim and it is therefore convenient, at the outset, to consider the ET’s decision relating to the claim pursued under section 13 EqA.

How the section 13 claim was being put had been considered at an earlier stage, at a case management preliminary hearing on 10 February 2021, when the relevant issues were identified, as follows:

In initially considering the respondent’s appeal, it had been unclear how the parties’ cases might have been developed on the question of comparators, and this matter was listed for an all-parties’ preliminary hearing to seek to resolve this point. The claimant did not attend that hearing or make any representations in relation to this question. Considering the information provided by the respondent, however, it was concluded that it indeed appeared that the hypothetical comparators relied on by the ET in its decision on the section 13 claim had not been raised by, or with, the parties prior to judgment. In returning to this issue at the full hearing of the appeal, I have considered the claimant’s witness statements before the ET and the written submissions that were presented on her behalf at the end of the hearing. Having done so, I am unable to see that the claimant had sought to draw any comparisons, with either actual or hypothetical comparators, when pursuing her claim of direct associative discrimination.

I would not, however, necessarily consider that to be fatal to the ET’s attempt to assess the question of less favourable treatment by constructing hypothetical comparisons. That possibility had been identified at the earlier case management stage and was plainly a course that it was envisaged might be adopted at the full merits hearing. The difficulty that arises from the ET’s judgment is that the hypothetical comparisons that were then used were not first discussed with the parties, who were thus denied the opportunity to address those comparisons either in evidence or submissions. Given that the ET’s findings in relation to the two comparators it constructed were material to its reasoning on the section 13 EqA claim, which then fed into the ET’s decision on the constructive unfair dismissal claim, this cannot be said to be a merely peripheral matter (Stanley Cole (Wainfleet)). More than that, however, as the finding of unlawful discrimination is akin to a finding of reliance upon an improper reason, these were matters upon which the respondent ought to have been given the opportunity to respond (McDonell). In the circumstances, this gave rise to an unfairness in the procedure adopted by the ET (Neale).

As well as being unfair, however, the course adopted by the ET was unwise given that the hypothetical comparators it went on to construct failed (notwithstanding its self-direction as to the correct legal test) to satisfy the need for a like-for-like comparison that section 13 EqA requires (see section 23 EqA).

The first example hypothesised by the ET related to the carer of a school-age child. The ET’s reasoning fails to specify the age of the child in question (a material omission), but, in any event, obvious difficulties would arise in seeking to draw a comparison between this individual and the circumstances of the claimant: on the one hand, it would be unlikely that the carer would have the same shielding concerns, impacting upon their ability to commute and attend the workplace; on the other, (depending on the age of the child) it might simply be impossible for that carer to leave their child at home, even for one day a week. Even if a workable comparison could be designed, however, this would need to be tested against how this respondent would have been likely to have responded to such circumstances, as to which the ET had no evidence as the point had not been identified prior to its written judgment.

As for the second hypothetical comparator – the individual providing assistance to a spouse/partner undertaking cancer treatment – this fails at a more basic level given that the comparator would also share the protected characteristic of associative disability (cancer being a deemed disability under the EqA). Even if this was not fatal to the comparison, the ET would have also needed to consider questions of relative vulnerability, and as to the frequency and the type of care needed in each case. Moreover, although the ET did refer to the respondent’s evidence when considering its likely response in this hypothetical case, the example it then relied on was materially different to both the hypothetical comparator and to the claimant: a receptionist (so, not carrying out the same skilled role as the claimant) who had been medically advised to shield, was not in the same position.

I have considered whether it might nevertheless be said that the ET’s decision could stand, notwithstanding the errors made in relation to the comparisons it sought to draw in this case. It is right that I keep in mind that, in cases where there is no immediately obvious direct comparator, it can be appropriate to simply focus on the question why the respondent acted as it did: its reason for the treatment in issue (see per Lord Nicholls in Shamoon, supra). I have, therefore, gone on to consider the next stage of the ET’s reasoning, where it considered whether the less favourable treatment relied on was afforded to the claimant because of her father’s disability.

The less favourable treatment in this case had been identified at the earlier case management preliminary hearing as the refusal of the claimant’s request for emergency care leave. The ET had addressed this at an earlier stage in its reasoning, finding that “the basis for the refusal was an unwarranted interpretation of the section” (that being a reference to section 57A ERA). Considering the evidence before it, which might shed further light on the respondent’s subjective reason for that refusal and “unwarranted interpretation” (ET paragraph 49), the ET referred to the testimony of the partner, Mr O’Sullivan, which it considered to demonstrate “a rather dismissive approach … to the question of care that aged parents required … [appearing] to suggest that everyone with such an aged parent had to make arrangements for their care in their own time. ” (ET paragraph 55).

Having thus set out the ET’s findings as to the respondent’s reason for refusing the claimant’s request for leave, and as to the possible underlying motivation demonstrated by Mr O’Sullivan’s evidence, I am unable to see how the ET then arrived at the conclusion that this demonstrated that the reason the claimant had been treated less favourably was because of her father’s disability. Certainly the ET’s reasoning does not disclose any proper basis on which it could be concluded that the respondent’s “unwarranted interpretation” of section 57A ERA was because of any association between the claimant and her disabled father (as opposed, for example, to it being due to the advice the respondent had received from its solicitor). As for Mr O’Sullivan’s evidence, the ET’s record in that respect would suggest that he would have responded to the claimant’s request in the same way, whether or not her father had been disabled. On the basis of the ET’s findings relevant to this issue (which have not been the subject of any challenge on appeal), I am therefore unable to see any proper basis for its conclusion that the respondent’s treatment of the claimant amounted to direct associative disability discrimination.

I turn then to the claim of unfair constructive dismissal and the ET’s conclusions in this regard. To the extent that the decision on constructive dismissal was dependent upon the ET’s finding of direct discrimination, for the reasons I have set out, it cannot stand. On one view, that must be fatal to the finding of constructive dismissal, given that the ET appears to have given this aspect of its reasoning equal weight when reaching its decision in this regard. In any event, however, I consider there are errors in the ET’s approach to the question whether there had been a breach of the implied term more generally, which would also render its decision on constructive dismissal unsafe.

As the respondent has observed, having listed the various matters relied on by the claimant as giving rise to a breach of the implied term of trust and confidence (refusing to grant the claimant emergency care leave; declining her request to work one day a week; failing to try to identify a short–term solution to her care difficulties; notifying her by email of 18 June 2020 that she needed to confirm by 22 June that she would be back at work on 25 June, working her pre-furlough two days per week), the ET did not find that these actions, of themselves, breached the implied term. Rather, the ET reasoned that these matters gave rise to a breach of the implied term of trust and confidence because there was no attempt to contact the claimant personally, to try to understand her request better, before making any decision.

The first difficulty with that finding is that there is no explanation as to the link apparently drawn by the ET between the matters relied on by the claimant and the further finding of an absence of personal contact. It might be inferred that the ET was seeking to say that it was the way that the respondent had dealt with these various matters that gave rise to the breach of the implied term in this instance, but that is not set out. Relatedly, there is also an absence of explanation as to why the various contacts that had been made with the claimant (as recited by the ET in setting out the relevant history) did not amount to the required personal contact in this context. For the respondent it is said that there is a contradiction in the ET’s reasoning in this respect. That might be right, or it might be that there is simply a failure of explanation. In either event, I agree with the respondent that the reasons provided do not enable it to understand why it lost on this point.

I also consider the ET erred in its application of the relevant test when seeking to determine whether there had been a breach of the implied term. The question it had to answer was whether the respondent had, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between it and the claimant (per Malik). Without, however, asking itself whether the respondent might have had “reasonable and proper cause”, the ET moved straight to its finding that there had been a breach of the implied term. Although it is right to note that the ET subsequently considered the question of “reasonable and proper cause” (ET paragraph 41), that was (1) after its finding of breach, and (2) still failed to engage with the respondent’s reasons (as explained in its contemporaneous correspondence with the claimant). The ET’s reasoning on this issue was limited to its assertion that “direct discrimination by association is inconsistent with there being reasonable and proper cause for a breach of that implied term”; that, however, demonstrated no engagement with any reasons relied on by the respondent as to why it considered it had reasonable and proper cause for its conduct (including its communications with the claimant).

For the reasons I have set out above, I have concluded that the ET’s decisions on both the section 13 EqA claim and the complaint of constructive unfair dismissal cannot stand. The respondent’s appeal must be allowed and the ET’s judgment set aside.

In the event that its appeal should be allowed, the respondent has urged that I should substitute my own finding that the claims should be dismissed. Acknowledging the limitations on the EAT’s jurisdiction in this regard, it is said that, nevertheless, (1) it is apparent that the ET’s findings as to the contacts that were made with the claimant could only lead to one conclusion on the constructive dismissal point, and (2) the ET’s conclusion as to the respondent’s reason for refusing the section 57A leave must mean that the section 13 claim should be dismissed.

In considering the respondent’s submissions, I have reminded myself of the guidance provided in Jafri v Lincoln College [2014] EWCA Civ 449, in particular (per Laws LJ):

On the question whether the claimant was constructively dismissed, the errors of law I have found are essentially two-fold: (1) a failure to apply the correct legal test, and (2) a failure of explanation. Although I have allowed that it is possible that there are (as the respondent contends) some inconsistencies in the ET’s findings, I cannot be sure that this demonstrates that the conclusion on breach is perverse as opposed to inadequately explained. In the circumstances, this is a matter that must be remitted to the ET.

The position is, however, different in relation to the claim under section 13 EqA. There are inherent difficulties in pursuing a claim of disability discrimination (associative or otherwise) under section 13, where the treatment in issue is a refusal to allow time off for dependents under section 57A ERA: inevitably, most of the comparisons that one might seek to draw would also tend to involve individuals who share the same association with the protected characteristic of disability (as the ET’s second hypothetical comparison demonstrated). Moreover, in the present case, when turning to the reason why, the ET provided an answer that did not suggest any associative discrimination: on its face, the respondent’s “unwarranted interpretation” of the statute had no link with the claimant’s father’s disability. To the extent that the ET went further, to look at the respondent’s underlying motivation, its finding suggests only that Mr O’Sullivan would have responded to the claimant’s request in the same way, whether or not her father had been disabled. On the section 13 claim, therefore, I do find the ET’s decision to have been perverse: absent its errors of law, and on the factual findings it had made, the only permissible conclusion must be that this claim must be dismissed.

Having found that the claim of constructive unfair dismissal must be remitted to the ET, I have further considered whether that should be to the same or a different panel (applying the guidance laid down in Sinclair Roche & Temperley v Heard [2004] IRLR 763 EAT). Given the time that has passed, I can see no obvious advantage in terms of time or costs in remitting this matter to the same panel. More than that, however, I do consider that the decision reached in this matter was fundamentally flawed such that it would not be appropriate to remit the case to the same ET. I therefore remit the claimant’s claim of constructive unfair dismissal to be re-heard before a differently constituted ET.

My order in this matter will therefore be that: