Hello, for any of those unfortunate enough to have missed last week’s update, it can be found right here. in that update, we looked at a claim for harassment during anti-bullying week. Here, we are looking at a difficult to succeed constructive dismissal claim.

The Claimant in this case, Maxine Simmons, worked as a Dental Nurse at the Respondent company since 1990. For some 18 years she had worked part-time following the birth of her daughter, working initially one day a week which was increased to two days in 2016. During the lockdowns we all experienced in 2020, the practice closed down operations in March and placed the Claimant on furlough.

In May 2020 the practice manager emailed all staff to inform them of their plans to reopen soon. The Claimant responded and voiced her concerns about commuting into work given her elderly father and the transmission of Covid-19. It was known that the Claimant’s father was suffering with Dementia and had a number of health issues. The Claimant requested that she be furloughed until the end of September in line with the scheme at the time. The Respondent explained their need to reopen the business as soon as possible and commence lower risk activities to keep the business afloat.

The issue then came down to how the Claimant would return to work. The Respondent had expected that this would be a return on a 2 day basis similar to the terms agreed prior to the furlough. The Claimant, however, stated that she could not maintain this work pattern due to the care needs of her father. After an extended discussion, which included letters from the parties’ solicitors, the Claimant resigned and brought a claim for constructive unfair dismissal.

The Employment Tribunal found that the Respondent should have attempted to contact their employee of 30 years standing, to better discuss the issue before making a decision. They also found in favour of the Claimant regarding the disability discrimination, finding that the discrimination by association was likely to breach the relationship of trust and confidence between the two parties. The Respondent brought an appeal to the Employment Appeal Tribunal.

Their appeal relied on 3 grounds. The first being that the ET had failed to correctly apply the law in deciding whether there was a breach of trust and confidence. The second ground stated that the hypothetical comparators that the ET had used in determining discrimination were flawed. Lastly, that the ET had failed to correctly identify the motivation for the discrimination and had used the incorrect legal test.

The EAT allowed the appeal. The EAT found that the ET had erred by determining that the lack of communication with the Claimant amounted to a breach of trust and confidence. In remitting the case to be reheard, the EAT also found errors in the explanation of their decisions to such an extent that the Respondent could not have understood why they failed on this point. The second ground was allowed due to the finding that the hypothetical comparators were not suitable and may have shown that such a comparator would not have been treated any worse in the circumstances. The final point agreed that the correct legal test had not been applied and that the evidence presented only pointed towards a detriment towards aged parents rather than any discriminatory conduct in relation to the father’s disability. On these grounds, the appeal was allowed and sent back to the ET for reconsideration.

The Takeaway Points

The issue of hypothetical comparators is vital in claims of discrimination and is a stumbling block for a great deal of discrimination claims. It is not enough to have a protected characteristic and be treated badly, one must be treated badly because of the protected characteristic. Establishing this link can be difficult even in strong claims. The EAT found here that not affording the parties an opportunity to make submissions on the comparators used is an error in process which will leave the door open for appeals. Even the Tribunal itself makes mistakes on these points sometimes!

Ensuring that you have the correct advice when it comes to discrimination claims is crucial. If you or someone you know has experienced discriminatory conduct then contact a member of our team who will be able to assist you.