No 8 Partnership v Simmons
| Jurisdiction | UK Non-devolved |
| Court | Employment Appeal Tribunal |
| Neutral Citation | [2023] EAT 140 |
| Year | 2023 |
2023 Oct 19; Nov 8
Discrimination - Disability - Associative discrimination - Employee caring for disabled father when furloughed during Covid-19 pandemic - Employer refusing employee’s request to remain on furlough or work one instead of two days a week - Claim of disability discrimination by association - Employment tribunal constructing hypothetical comparators - No opportunity for parties to address tribunal on comparators - Whether unfair - Whether refusal of employee’s request because of association between employee and her father -
The claimant, who worked two days a week as a dental nurse for the respondent employer, was placed on furlough during the Covid-19 pandemic. When her employer required her to return to work for two days a week, rather than acceding to her request to remain on furlough, or to work only one day a week, so that she could continue to support her elderly father, who suffered from advanced dementia, she felt that she had no option other than to resign. On a claim by the claimant, under section 13 of the Equality Act 2010F1, alleging direct disability discrimination by association, the tribunal found that the employer had been wrong to refuse the claimant’s request, under section 57A(1)(b) of the Employment Rights Act 1996F2, for time off to make provision for the care of her dependent father. In determining that that refusal, based on an “unwarranted interpretation” of section 57A, amounted to less favourable treatment, the tribunal relied on hypothetical comparators, without giving the parties the opportunity to address those comparators, and on evidence given by a partner in the dental practice, which it found was dismissive of the care that aged parents required. Upholding a further claim of constructive unfair dismissal, the employment tribunal concluded that the employer’s failure to contact an employee of 30 years’ standing, to discuss and understand her request better, breached the implied term of trust and confidence; that direct discrimination by association was inconsistent with there being reasonable and proper cause for a breach of the term; and that the claimant had resigned in consequence of the breach.
On appeal by the employer—
Held, allowing the appeal, (1) that, where a tribunal considered it appropriate to construct hypothetical comparators in determining the question of less favourable treatment, it had to ensure that it was truly a like-for-like comparison, as required by section 23 of the Equality Act 2010; that, in the present case, not only were the hypothetical comparators not discussed with the parties, denying them the opportunity to address them, the comparators the tribunal went on to construct failed to satisfy the need for the like-for-like comparison; that, given that the tribunal’s findings in relation to those comparators were material to its reasoning, not only in relation to the claim under section 13 of the 2010 Act but also to the tribunal’s decision on the constructive unfair dismissal claim, the failure to give the employer the opportunity to respond was not a mere peripheral matter and gave rise to an unfairness in the procedure adopted by the tribunal; that there was nothing in the tribunal’s reasoning to disclose any proper basis to conclude that the employer’s “unwarranted interpretation” of section 57A of the Employment Rights Act 1996, or the evidence given by the partner, was because of any association between the claimant and her disabled father; and that, therefore, there was no basis for the tribunal’s conclusion that the respondent’s treatment of the claimant amounted to direct associative disability discrimination, and, on the factual findings made, the only permissible conclusion was that that claim should be dismissed (post, paras 37, 48, 49, 54, 63).
(2) That to the extent that the decision on constructive dismissal was dependent on the employment tribunal’s finding of direct discrimination, it could not stand; that, further, when seeking to determine whether there had been a breach of the implied term, the employment tribunal had erred in its application of the relevant test, failing to ask whether the employer 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, and moving straight to finding that there had been a breach of the implied term; that, also, there was no explanation as to the link apparently drawn by the tribunal between the matters relied on by the claimant and the finding of an absence of personal contact with the claimant; and that, accordingly, the claim of constructive unfair dismissal would be remitted to a differently constituted tribunal for rehearing (post, paras 55–58, 62, 64).
The following cases are referred to in the judgment:
Chief Constable of West Yorkshire Police v Khan
City of London Corpn v McDonnell [
Coleman v Attridge Law
EBR Attridge LLP (formerly Attridge Law) v Coleman [
Jafri v Lincoln College
Mahmud v Bank of Credit and Commerce International SA [
Neale v Hereford and Worcester County Council [
Shamoon v Chief Constable of the Royal Ulster Constabulary
Sinclair Roche & Temperley v Heard [
Stanley Cole (Wainfleet) Ltd v Sheridan
Western Excavating (ECC) Ltd v Sharp [
The following additional case was cited in argument or referred to in the skeleton argument:
Stockton on Tees Borough Council v Aylott
APPEAL from an employment tribunal sitting at London Central
By a judgment sent to the parties on 2 June 2021, the tribunal (Employment Judge Paul Stewart, Stephen Soskin and Ian Allwright) upheld claims made by the claimant, Maxine Simmons, against the respondent, The No 8 Partnership, of constructive unfair dismissal and direct disability discrimination by association.
By a notice of appeal dated 11 July 2021, the respondent appealed on the grounds that the tribunal (1) had failed correctly to apply the law regarding breach of the implied term of trust and confidence and therefore erred in its application of the relevant tests laid down in Western Excavating (ECC) Ltd v Sharp [
The facts are stated in the judgment, post, paras 4–18.
Joseph England (instructed by
The claimant did not appear and was not represented.
The appeal tribunal took time for consideration.
8 November 2023. EADY J (PRESIDENT) handed down the following judgment.
Introduction1 This appeal raises questions as to the approach of the employment tribunal 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 a tribunal’s chosen comparators.
2 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.
3 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 facts4 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...
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The No. 8 Partnership v Ms Maxine Simmons
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