United First Partners Research v Nicolas Carreras
| Jurisdiction | England & Wales |
| Judge | Lady Justice Asplin,Lord Justice Underhill,Lord Justice Bean |
| Judgment Date | 28 February 2018 |
| Neutral Citation | [2018] EWCA Civ 323 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/1748 |
| Date | 28 February 2018 |
[2018] EWCA Civ 323
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HH Judge Eady QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
Lord Justice Bean
and
Lady Justice Asplin
Case No: A2/2016/1748
Mr Sami Rahman (instructed by Practical HR Ltd) for the Appellant
Mr John Mehrzad (instructed by Simon Muirhead & Burton) for the Respondent
Hearing date: 1 November 2017
INTRODUCTION
This is an appeal from a decision of the Employment Appeal Tribunal (HH Judge Eady QC sitting alone) dated 7 April 2016. Judge Eady allowed the Claimant's appeal from the decision of an employment tribunal sitting at London Central, chaired by Employment Judge Henderson, dismissing his claims of (constructive) unfair dismissal and disability discrimination. To avoid confusion, I will refer to the parties to this appeal as they were in the original proceedings, though the Respondent is the appellant before us.
The Claimant was represented before us by Mr John Mehrzad and the Respondent by Mr Sami Rahman, who both also appeared in the ET and the EAT.
THE FACTS
I need only set out the facts in bare outline.
The Respondent is an independent brokerage and research firm. The Claimant started work with them as an analyst in October 2011. Initially he worked very long hours, typically from about 8 or 9 in the morning to between 9 and 11 in the evening: the evening hours were in order to cover the US markets. But on 22 July 2012 he was involved in a cycling accident in which he was severely affected, both physically and emotionally. Although he returned to work within a few weeks – far too early, as the witnesses in the ET thought – he continued to experience serious symptoms of dizziness, fatigue and headaches, and he had difficulties concentrating and focusing. As a result he was not able on his return to work the same hours as before.
The Respondent was aware of the Claimant's symptoms, though it never saw or sought any medical report about his injuries, and it was content for him to say how long he felt able to work. In the first six months after his return he worked a maximum of eight hours a day. After that he began to work longer hours, starting at 8 in the morning and going on till 6. 30 or 7 in the evening.
From about October 2013 the Claimant began to be asked to work later in the evenings and, when he agreed, an expectation began to develop that he would do so. By the date of his resignation on 14 February 2014 there was, as the ET found, an assumption he would be working one or two evenings a week, the Respondent asking him which nights he would be working late rather than whether he was prepared to work at all. The Claimant found working these very long hours difficult, but he made no formal complaint until 14 February.
Two other problems upset the Claimant. The first was the late payment of bonus instalments, apparently as a result of the Respondent's cash-flow difficulties. The second involved the supply of inaccurate earnings figures to the solicitors who were pursuing the personal injury claim arising out of his accident.
On 14 February 2014, the Claimant sent an e-mail formally objecting to working late in the evenings. Later that day there was a heated exchange between him and one of the owners of the business, Mr Mardel, arising out of what Mr Mardel interpreted as a critical comment made by the Clamant about one of his colleagues: although the Claimant's e-mail was not the subject of the exchange, Mr Mardel was (as the ET found) aware of it. At para. 3.30 of its Reasons the ET summarised Mr Mardel's conduct at the meeting as follows:
“— He raised his voice to the Claimant.
— He deliberately reprimanded the Claimant in front of other employees saying that the Claimant continually criticised his colleagues. This was done to make an example of the Claimant. The Tribunal did not hear any evidence from the Claimant that he felt humiliated although he did tell Ms Barlow [the Respondent's Head of Compliance] he found Mr Mardel's behaviour to be abusive, unacceptable and intimidating.
— Mr Mardel told the Claimant he could leave if he did not like it.
— Mr Mardel demanded an apology from the Claimant for his behaviour.
— Mr Mardel did not seek to resolve the issue with the Claimant following the incident.”
The Claimant left the office, returning after some two hours when he went to see Ms Barlow to say that, as noted above, he thought Mr Mardel's behaviour was abusive and unacceptable and that he was resigning. She asked him to confirm that in writing, which he did by an e-mail which said simply “I hereby resign”. In his evidence to the ET the Claimant said that he resigned because he was unhappy with Mr Mardel's conduct, but he also said that he expected Mr Mardel would ask him to return and that, if he had, he would probably have stayed.
Following receipt of the Claimant's e-mail Ms Barlow wrote to him reminding him of his post-termination obligations. In response, on 18 February 2014 he sent a lengthy e-mail setting out in detail his reasons for resigning. He gave as his reasons not only Mr Mardel's conduct on 14 February but also (as summarised at para. 2.14 of the ET's Reasons):
“—failure to pay his bonuses at the correct times
— forcing him to work the evening shifts/later hours
— providing inaccurate information to his solicitors as regards his working hours (which adversely impacted on his personal injury claim)
— refusing to correct such inaccurate information.”
THE ET PROCEEDINGS
The Claimant brought proceedings in the ET for disability discrimination, specifically by failure to make reasonable adjustments contrary to sections 20–21 and 39 (5) of the Equality Act 2010, and for unfair dismissal. The unfair dismissal claim was advanced on the alternative bases (a) that Mr Mardel's conduct on 14 February 2014 had amounted to an actual dismissal and (b) that the Claimant had been entitled to resign as a result of a fundamental breach of contract by the Respondent and had accordingly been constructively dismissed.
Nothing turns for the purpose of this appeal on the specific provisions of the Employment Rights Act 1996 relating to unfair dismissal nor most of the applicable provisions of the 2010 Act. But I should set out sub-sections (1)-(4) of section 20, which read:
“(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”
I will, in the usual way, use the shorthand “PCP” to refer to a “provision, criterion or practice” within the meaning of sub-section (3).
The claim was heard in the ET over three days in January 2015. There had been an unsuccessful attempt at a case management hearing to produce an agreed list of issues. Such a list was, however, agreed at the start of the hearing, as follows:
“ Disability discrimination
(1) Was the claimant disabled at the material time (namely October 2013 to 14 February 2014)?
(2) Was there a failure to make reasonable adjustments? ( section 20 EA)
(3) Was the respondent aware of the disability?
Unfair dismissal
(4) Was the claimant dismissed? (section 95 (1) (a) Employment Rights Act 1996 ( ERA)
(5) If the claimant was not dismissed was he constructively dismissed? (section 95 (1) (c) ERA)
(6) What was/were the repudiatory breach(es) alleged?
(7) Were those breaches the reason for the claimant's resignation?
(8) Was there any delay in the claimant's responses to the alleged breaches?”
(I have supplied the numbering for ease of reference.) There appears also to have been a discussion with counsel at which what was involved in those issues was to some extent clarified or amplified.
I should mention one feature of the hearing which is the basis of one of the grounds of appeal. The Tribunal did not hear submissions from the parties at the conclusion of the evidence because time had over-run. Instead, it set a timetable for the provision of written submissions and for responses to those submissions, to be received in advance of its deliberations in chambers. At para. 2.28 of the Tribunal's Reasons it identifies the written submissions to which it had regard, referring to both parties' first-round submissions but not to the Claimant's reply submissions. It is common ground that the Claimant had indeed sent such submissions. It is not clear whether they had not reached the Tribunal as a result of some administrative error or whether it did in fact have them and accidentally omitted explicitly to refer to them.
By a Judgment with Reasons sent to the parties on 8 May 2015 both claims were dismissed. I shall have to come back to aspects of the Tribunal's reasoning in more detail in due course, but in essence:
(1) It held that the Claimant's impairments as a result of his injury amounted to a disability, and that the Respondent was aware of them, but that it had not imposed the PCP complained of because, on the evidence, the Claimant had never been...
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