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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Carreras v United First Partners Research (Unfair Dismissal: Constructive dismissal) [2016] UKEAT 0266_15_0704 (07 April 2016)
URL: http://www.bailii.org/uk/cases/UKEAT/2016/0266_15_0704.html
Cite as: [2016] UKEAT 0266_15_0704

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Appeal No. UKEAT/0266/15/RN

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 7 April 2016

 

 

 

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

 

 

 

 

 

 

 

MR N CARRERAS                                                                                                  APPELLANT

 

 

 

 

 

UNITED FIRST PARTNERS RESEARCH                                                        RESPONDENT

 

 

 

Transcript of Proceedings

 

JUDGMENT

 

APPEAL & CROSS-APPEAL

 

 


 

 

 

 

 

 

 


APPEARANCES

 

 

 

 

 

For the Appellant

MR JOHN MEHRZAD

(of Counsel)

Instructed by:

Messrs Simons Muirhead & Burton Soliciors

8-9 Frith Street

London

W1D 3JB

For the Respondent

MR SAMI RAHMAN

(of Counsel)

and

MR KYLE SQUIRE

(of Counsel)

Instructed by:

Practical HR Limited

34 Star Lane

Great Wakering

Essex

SS3 0FF

 

 

 

 


SUMMARY

UNFAIR DISMISSAL - Constructive dismissal

DISABILITY DISCRIMINATION - Reasonable adjustments

 

The Claimant (a high performing Analyst, who had worked long hours before suffering serious injuries in a cycling accident) made complaints of disability discrimination (failure to comply with a duty to make reasonable adjustments) and constructive unfair dismissal.  The parties had made written submissions, following directions for consecutive exchange.  The ET’s Reasons suggested, however, that it had not had regard to the final reply from the Claimant.

 

In respect of the reasonable adjustments claim, the Claimant had relied on a provision, criterion or practice (“PCP”) of having been required to work late but the Respondent contended working late had been voluntary for the Claimant after his accident: he had only been requested - not required - to do so.  The ET found the Respondent’s position had progressed from making “open requests”, to assuming the Claimant would work late on one or two evenings each week: it became an expectation he would do so.  That said, the ET did not accept the Claimant had been “forced” to work late, in the sense of being coerced to do so, although it recognised he would have considered there were commercial and political reasons why he should work late.  Accepting that by working late evenings the Claimant had been placed at a disadvantage due to his disability (the continuing effects of his injuries sustained in the cycling accident), the ET nevertheless dismissed his disability discrimination claim because it found that an expectation or assumption that the Claimant should work late was not the PCP he had pleaded.

 

Turning to the complaint of constructive unfair dismissal, the Claimant appealed against the ET’s rejection of his disability discrimination complaint and on its finding as to his reason for resigning.  The Respondent cross-appealed on the basis that the ET had failed to engage with the question of possible acquiescence.

 

Held: allowing the appeal and dismissing the cross-appeal.

The identification of the PCP was an important aspect of the ET’s task, the starting point to determining a reasonable adjustments claim (Environment Agency v Rowan [2008] IRLR 20 EAT).  In approaching the statutory definition, the protective nature of the legislation meant a liberal, rather than an overly technical approach, should be adopted (Nottingham City Transport Ltd v Harvey UKEAT/0032/12/JOJ at paragraph 18; EHRC Code of Practice on Employment 2011 at paragraph 6.10).  Adopting a real world approach, whilst “requirement” might be taken to imply some element of compulsion, an expectation or assumption placed upon an employee - in the sense found by the ET - might well suffice.  As the ET recognised by its reference to the “commercial or political” factors (referable to the workplace rather than more generally), employees can feel obliged to work in a particular way even if disadvantageous to their health.  Characterising the Respondent’s expectation as a “requirement” in that context was an entirely straightforward construction of the Claimant’s case.  Given the Claimant was relying on the “requirement” as a form of “practice” by the Respondent, the ET’s approach was overly technical and led it to treat the Claimant’s case as having been more narrowly put than it in fact was.  That was a point the ET might have understood more clearly if it had the Claimant’s final submissions in reply.

 

Approaching the Claimant’s case on PCP in the correct way, on the ET’s findings it was apparent his case had been made out in that respect. 

 

That, however, was not an end of the matter.  Although the ET had found the Claimant suffered a disadvantage, as compared to a non-disabled comparator, as a result of the PCP of working later hours, its findings did not go so far as to determine the nature and extent of that disadvantage, and it did not go on to assess the steps that it might have been reasonable for the Respondent to take at the relevant time (the adjustments it might have been obliged to make).  Those matters needed to be remitted and it was proportionate for this to be to the same ET.

 

On the constructive unfair dismissal case, the ET found the Respondent’s conduct - taken cumulatively - amounted to a fundamental breach of contract.  It did not, however, consider that was the reason for the Claimant’s resignation and referred to various other matters, largely occurring thereafter.  The correct approach was as laid down by Keene LJ in Nottinghamshire County Council v Meikle [2004] IRLR 703, which recognised that the question was not so much whether the breach of contact constituted the reason for the resignation as whether it was a reason for that resignation (see Lochuack v London Borough of Sutton UKEAT/ 0197/14/RN).  On this question, the ET had been led into error by the description of the point in the list of issues, which seemed to require the breach of contract to be the only reason for the resignation; that alone rendered the decision unsafe.  More generally, however, the ET erred in its approach.  It being common ground that the Claimant’s resignation on 14 February had been effective to terminate his contract of employment, the ET needed to determine what had led him to resign at that stage.  Whilst what he subsequently did might not be irrelevant, the evidence made it plain that something had occurred that morning which caused the Claimant to resign that day.  The only permissible conclusion was that the Claimant had resigned - at least in part - in response to the Respondent’s repudiatory breach.  That being so - and the Respondent having put no alternative case as to a potentially fair reason for any constructive dismissal - the ET’s decision in this respect would be set aside and substituted by a finding that the Claimant’s complaint of constructive unfair dismissal was made out.

 

As for the cross-appeal, given the ET’s finding as to the last relevant act being on 14 February itself, there could be no proper finding that the Claimant had waived the breach.  The cross-appeal would be dismissed.

 


HER HONOUR JUDGE EADY QC

 

Introduction

1.                  I refer to the parties as the Claimant and Respondent, as below.  This is the Claimant’s appeal and the Respondent’s cross-appeal against a Judgment of the London (Central) Employment Tribunal (Employment Judge Henderson, sitting with members on 19-22 January and in chambers on 12 and 13 February 2015; “the ET”), sent to the parties on 8 May 2015.  Representation then was as it is now, save that Mr Rahman is now assisted by Mr Squire.  By that Judgment the ET dismissed the Claimant’s claims of disability discrimination by reason of a failure to make reasonable adjustments and of constructive unfair dismissal. 

 

2.                  The Claimant’s appeal was permitted to proceed to a Full Hearing by The Honourable Mrs Justice Laing DBE.  To the extent the ET had failed to address the question whether the Claimant had waived any breach of contract, relevant to the constructive dismissal claim, I subsequently gave the Respondent leave to pursue a cross-appeal.

 

The Background Facts

3.                  The Respondent is an independent brokerage and research firm that employed the Claimant as an Analyst, his continuous employment going back to 1 October 2011.  By all accounts the Claimant was good at what he did and worked long hours (opting out from the 48-hour working week) and, prior to his accident, usually working from around 8.00- 9.00am until about 9.00-11.00pm.

 

4.                  On 22 July 2012, the Claimant was involved in a serious road accident whilst riding his bike.  He suffered severe injuries and was badly affected but returned to work within a few weeks.  Although not provided with any medical reports, the ET found the Respondent was aware of the Claimant’s physical symptoms: he experienced dizziness, fatigue and headaches, had difficulties concentrating and focusing and found it difficult to work in the evenings. 

 

5.                  In the first six months after his return, the Claimant worked no more than eight hours a day.  After that, however, he would start at 8.00am and work until 6.30-7.00pm, something that continued until the end of 2013, with others covering later evening hours dealing with the US markets.  After that initial period, it was the Claimant’s complaint that he was forced to work later hours by the Respondent; that it required him to work “unsuitable hours”.  The Respondent had not asked to see medical reports but had left it to the Claimant to attend work so far as he was able.  As from October 2013, the Claimant had started to request late working, up to 9.00pm.  That progressed to requests being made of him and then to an assumption he would be working one or two later nights during the week; the Respondent asking him which nights he would be working late rather than asking whether he was prepared to work any at all.

 

6.                  The Claimant contended he was put under pressure to work late and he was concerned that if he did not he might be made redundant or lose his bonus.  The ET did not accept that there was any ongoing redundancy process or that the Claimant’s bonus was dependent on his working hours.  Although there were various commercial or political factors that may have led the Claimant to decide it was in his interest - financially or in terms of career profession - to work late, the ET did not consider that could be described as being “forced” to do so. 

 

7.                  Meanwhile, other incidents had occurred that impacted upon the parties’ relationship.  In January 2013, the Claimant was awarded a bonus of £85,000 for 2012, which was to be paid in two equal instalments, but the second payment (due to the Respondent’s cash-flow problems) was delayed from April to July, something that happened to all employees.  For 2013, the Claimant was awarded £120,000, again to be paid in two instalments.  This time, the first instalment was received some two weeks late, and the Claimant did not receive the second instalment, which was due in April 2014, because his employment terminated in 2014 and his contract provided no bonus would be made in those circumstances.  Separately, as part of a personal injury claim relating to his bike accident, the Claimant’s solicitors had written to the Respondent asking for information about his loss of earnings.  The response provided was misleading about the hours the Claimant worked in the past and inaccurate as to the hours he was working after the accident.  The letter could be regarded as a failure (unintended) of the Respondent’s duty as the Claimant’s employer.

 

8.                  On 14 February 2014, matters came to a head.  The Claimant had emailed, formally objecting to working late in the evenings because of his tiredness.  Later that day there was a heated exchange between him and one of the owners of the business, Mr Mardel, during which Mr Mardel told the Claimant that if he did not like it he could leave.  As the ET found:

“3.30. … Mr Mardel’s conduct comprised the following:

- 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 [Susan] 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.”

 

9.                  The Claimant left the office, returning after some two hours to pack up his belongings when he to the Respondent’s employee responsible for HR matters, Ms Barlow, to say he thought Mr Mardel’s behaviour was abusive and unacceptable and was resigning.  She asked him to confirm that in writing, which he did by email, stating simply, “I hereby resign”.  In evidence to the ET, the Claimant said he resigned on 14 February because he was unhappy with Mr Mardel’s conduct, but also said he expected Mr Mardel would ask him to return and, if he had, he (the Claimant) would probably have stayed. 

 

10.              Following receipt of the Claimant’s email, Ms Barlow wrote to him that afternoon reminding him of his post-termination obligations.  In response the Claimant sent a lengthy email on 18 February setting out in detail his reasons for resigning.

 

11.              At around this time, the Claimant’s wife had been looking for work in the USA and had job interviews there in January 2014.  The Claimant said that he had wanted to stay in the UK for the conduct of his personal injury case, due to be heard in November 2014.  In fact, after resigning from the Respondent, in March 2014 the Claimant left to join his wife in the US.

 

The ET’s Conclusions

12.              The ET accepted that the Claimant was a disabled person for the purposes of section 6 of the Equality Act 2010 (“the EqA”) and that the Respondent had the required knowledge of this.  It concluded that the Respondent had not failed to make a reasonable adjustment pursuant to section 20 of the EqA because there was no provision, criterion or practice (“PCP”) of a requirement that the Claimant work late hours, which is how the Claimant had put his case.  The ET did, however, accept that after his return to work and an initial period of working fewer hours, the Claimant was first requested and then expected to work one or two evenings per week at later times.  The ET construed the Claimant’s case, however, as relying on a requirement rather than an expectation; thus, he had not made good the PCP he relied on.

 

13.              On the unfair dismissal claim, the ET found the Claimant had not been directly dismissed on 14 February or at all.  As for the various breaches of contract relied on by the Claimant for his alternative constructive dismissal case: the delays in bonus payments were technical breaches of contract but not sufficiently serious to go to the root of the contract; whilst not accepting he had been forced to work evening shifts, the gradual assumption that he would do so might be part of a series of events entitling the Claimant to claim breach of contract; the lack of care in the letter to the Claimant’s solicitors might be a breach of an employer’s duty to take reasonable care, but it was did not, of itself, go to the root of the contract; the same was true of Mr Mardel’s conduct on 14 February, although not best practice, it was not, in itself, a fundamental breach of contract.  Having considered those matters individually, the ET went on to find that their cumulative effect (see London Borough of Waltham Forest v Omilaju [2005] ICR 481) amounted to a fundamental breach of the implied term of trust and confidence. 

 

14.              It then turned to the question whether that fundamental breach was “the reason for the Claimant’s resignation”.  It found it was not: the Claimant did not resign in response to the breaches.  Although he had said he was resigning because he was unhappy with Mr Mardel’s conduct on 14 February, he also said he expected Mr Mardel to ask him to return and, if so, he would probably have stayed.  Moreover, on 14 February itself the Claimant had simply stated, “I hereby resign”.  It was only after that resignation had been accepted and his post-termination constraints pointed out that he had sent a more detailed email with his reasons on 18 February.  He had subsequently gone to the US, in March 2014, to be with his wife.

 

The Appeal and Cross-Appeal

15.              The grounds of appeal can be summarised as follows.  First, in respect of the reasonable adjustments claim, it was perverse to conclude there was no requirement that the Claimant work late hours when there was an assumption and expectation that he would do so.  Second, on the constructive unfair dismissal claim, the ET reached a perverse conclusion that the Claimant did not resign in response to the Respondent’s repudiatory conduct.  Third, it had failed to consider the Claimant’s reply to the Respondent’s written closing submissions. 

 

16.              The Respondent resists the appeal, essentially relying on the ET’s findings, but also adding, by way of cross-appeal, a challenge to the ET’s failure to find that the Claimant had waived or affirmed any of the matters relied on as repudiatory breaches.

 

Submissions

The Claimant’s Case

17.              Accepting the high threshold required pursuant to Yeboah v Crofton [2002] IRLR 634 CA, the ET had reached a perverse conclusion that there was no requirement that the Claimant work late; that was contradicted by other findings, demonstrating a clear change from an open request to mandatory working of late hours; specifically, there was a progression from:

“2.50. … totally open requests to the Claimant … on a specific occasion, to an assumption that the Claimant will be working one or two later nights … asking which nights those will be, rather than whether he is prepared to work any at all.”

 

And see the ET’s finding that:

“3.11. … the Claimant was originally requested and then expected to work up to 1-2 evenings per week on the later shift. …”

which again emphasised the mandatory nature of his working late hours.  And also see the conclusion that:

“3.27. … Mr Mardel’s e-mails … eventually led to the assumption … that the Claimant would be working two evenings a week and he [Mr Mardel] was simply clarifying which evenings those were.”

 

18.              Moreover, the ET’s approach was an exercise in semantics, seeking to distinguish a requirement from an assumption or expectation - as the Collins English Thesaurus allowed, an “expectation” can mean a “requirement” - and it failed to have any regard to legal principle or provide any explanation as to why it adopted such a narrow view of “requirement”.  It was not obliged to stick slavishly to the parties’ description of the PCP but was entitled to consider how it was properly to be described given its findings as to the reality of the situation (see the approach of the Court of Appeal in FirstGroup plc v Paulley [2014] EWCA Civ 1573 per Lewison LJ at paragraph 34 and Underhill LJ at paragraph 61).  More generally, the Equality & Human Rights Commission’s Code of Practice on Employment 2011 (“the Code”) makes clear “PCP” should be construed widely (paragraph 6.10).  It was the Claimant’s case that what was in issue was a form of practice and there could be no dispute that the practice was in place; the ET had made a finding of assumption and expectation. 

 

19.              The ET had further found this placed the Claimant at a relevant disadvantage (see the finding at paragraph 3.11).  The ET should have found that a reasonable adjustment could and should have been made to permit the Claimant to work shorter hours, as when he initially returned to work.  That said, the Claimant accepted the ET had not made findings on all points potentially relevant to the question of reasonable adjustment.

 

20.              Turning to the constructive dismissal appeal, the Claimant relied on the ET’s finding of cumulative breach although would contend it erred by failing to find individual breaches.  As to the reason for resigning, the ET identified the following factors as demonstrating the Claimant did not resign in response to the Respondent’s repudiatory breach: (1) he left the UK to live with his wife in the US; (2) he expected Mr Mardel to apologise or ask him to return; and (3) he wrote his detailed resignation letter on 18 February, when reminded of his post-termination constraints.  It had, however, applied the wrong test, asking whether the Respondent’s fundamental breach was the reason for resigning when, as recognised by Keene LJ in Nottinghamshire County Council v Meikle [2004] IRLR 703 CA, there may be multiple reasons, only one needed to be in response to a repudiatory breach.  The ET failed to take into account that the Claimant resigned on 14 February and to make a finding as to the reason for that; it could only be, in whole or part, due to the Respondent’s conduct.  It was further swayed by the Claimant’s thought that the Respondent might seek to change his mind but that hope would not negate his resignation.  As for when he set out his full reasons, he was not required to do so straightaway and the ET failed to take into account that, having resigned on 14 February, the Claimant was free to do as he pleased, including subsequently joining his wife in the US.  There was only one permissible answer: the Claimant resigned due to the Respondent’s breaches of contract.

 

21.              Turning to the cross-appeal, although accepting that the ET had not expressly addressed the issue identified, it could not be made out on the findings of fact and was rendered otiose by the finding on cumulative effect and by the fact that the Claimant had resigned the same day as the last matter relied on.  Given the Respondent had accepted that the last act relied on was not affirmed, that was the end of the point.  In any event, most of the matters amounted to a course of conduct, continuing at least until January 2014 if not later.  There could be no waiver.

 

22.              Finally, the Claimant noted from the ET’s reasoning (see paragraph 2.28) that it had not had regard to his submissions in reply.  The parties had not made oral submissions before the ET but put their respective submissions in writing pursuant to the ET’s direction for consecutive exchange, which allowed for a final reply by the Claimant, but that last document apparently had not been considered by the ET.  That was a procedural error and a breach of natural justice (see London Borough of Barking & Dagenham v Oguoko [2000] IRLR 179, EAT at paragraphs 33 and 34), and it could not be said that it would have made no difference to the outcome: the Claimant did not have to show consideration of his reply would definitely have made a difference, merely that there was a real possibility it would have done so (see per HHJ Serota QC at paragraph 20 of Quashie v Methodist Homes Housing Association UKEAT/ 0422/11/DM), albeit, that the proportionate approach might be to first ask the ET to respond on this point.

 

23.              More generally, remission should be a different ET; the ET’s approach to PCP and to reason for resignation was fundamentally flawed and it was proportionate to do so (time had passed, the ET could not be expected to remember this case, and any further evidence would be likely to be limited; the new ET could proceed on the basis of the existing findings, unchallenged on appeal.

 

The Respondent’s Case

24.              The Respondent reminded me that the ET’s Judgment must be read as a whole; it would be wrong to approach the Reasons on a myopic basis.  The tenor of the ET’s Judgment, taken in the round, was that the Claimant’s case was not accepted save as to disability.  Read in its entirety, it was possible to see that the ET was in particular rejecting the Claimant’s case as to his reason for leaving his employment.  It was, further, unrealistic to suggest this was a case where the EAT could reach a conclusion on these matters itself; even if the appeal were successful (and the Respondent submitted it should not be), the matter would need to be remitted to the same ET.  This was a memorable case, and it would be proportionate for it to return to the same ET.

 

25.              Turning to the substance of the appeal, on the PCP issue there was a discussion before the ET as to the issues it had to determine (see paragraphs 2.1 to 2.21) and it was then that the Claimant chose to put his case on the basis that he had been forced to work the later hours.  That was how he put his case on requirement, whereas the Respondent was saying it was at most simply a request.  The Claimant had not sought to change his case on the PCP before the ET; the best he could do was point to how he - as the Respondent saw it - moved the goalposts in his final reply, but it was simply unclear as to whether that had been properly sent to the ET and whether the ET had even seen it.

 

26.              The obligation was on the Claimant to prove the existence of a PCP (see Project Management Institute v Latif [2007] IRLR 579); it could not be for the ET to itself have to identify and characterise the PCP regardless of how it was put by the parties.  Moreover, a simple request cannot amount to a PCP (see Paulley and Nottingham City Transport Ltd v Harvey UKEAT/0032/12/JOJ). 

 

27.              On the reason for leaving - the constructive dismissal claim - the approach was as laid down by Langstaff J in Lochuack v London Borough of Sutton UKEAT/0197/14/RN (see paragraphs 10 to 14 of that Judgment).  The question raised by the constructive dismissal appeal was whether the ET was obliged to specifically say that it rejected the Claimant’s case as to his reason for leaving.  As to what it did take into account, the ET was entitled to look at the picture more broadly and was not bound to confine itself as to what the Claimant’s reason was simply on 14 February.  As to what was in issue for the Claimant when he resigned, it was not the conduct on 14 February, which the ET found did not, of itself, constitute a fundamental breach of contract.  Accepting what the Claimant had said as regards the affirmation point raised by the cross-appeal, it needed to remain open to the ET on remission to consider that question.

The Claimant in Reply

28.              On the PCP point, the Claimant was entitled to expect the ET to approach “requirement” broadly (a point raised in his submissions in reply).  On affirmation, if necessary the Claimant would say that the conduct on 14 February amounted to a fundamental breach.

 

The Respondent in Reply on the Cross-Appeal

29.              The ET had not found the Claimant saw the 14 February conduct as a fundamental breach; that could not be relied on as making good his case on affirmation.

 

Discussion and Conclusions

30.              As noted by Laing J, when putting this matter through to a Full Hearing, the ET essentially dismissed the disability discrimination claim because it found that an expectation or assumption that the Claimant should work late was not the pleaded PCP. 

 

31.              The identification of the PCP was an important aspect of the ET’s task; the starting point for its determination of a claim of disability discrimination by way of a failure to make reasonable adjustments (see Environment Agency v Rowan [2008] IRLR 20 EAT, paragraph 27).  In approaching the statutory definition in this regard, the protective nature of the legislation means a liberal rather than an overly technical or narrow approach is to be adopted (Langstaff J, paragraph 18 of Harvey); that is consistent with the Code, which states (paragraph 6.10) that the phrase “provision, criterion or practice” is to be widely construed. 

 

32.              It is important to be clear, however, as to how the PCP is to be described in any particular case (and I note the observations of Lewison LJ and Underhill LJ on this issue in Paulley).  And there has to be a causative link between the PCP and the disadvantage; it is this that will inform the determination of what adjustments a Respondent was obliged to make. 

 

33.              In the present case, the ET sought to clarify the issues with the parties at the outset of the hearing.  It would have been aware that the Claimant’s case - as characterised in his ET1 - complained that, in requiring him to work unsuitable hours, the Respondent had failed to make reasonable adjustments.  A “requirement” might imply something rather narrower than a PCP; after all, the adoption of the language of “provision, criteria or practice” rather than “requirement” or “condition” - for the purposes of defining indirect discrimination - is generally viewed as heralding a broader and more flexible approach.  It is, of course, not suggested that the Claimant was here using “requirement” in any statutory sense; he was simply identifying the PCP.  Whatever he was relying on, he was saying that it was a provision, a criterion or (and this might be the more natural way of seeing it) a practice.  In explaining his case more fully in the opening discussion with the ET, the Claimant described being required or forced to work the later hours.  That was to be contrasted with the Respondent’s case, which denied that the Claimant was forced to undertake the later hours: he was initially allowed to work those hours, and subsequently there were requests for him to do so.  That was the issue between the parties.

 

34.              Having considered the evidence, the ET did not accept the Claimant’s description of having been forced - as in coerced - to work the later hours, as such (paragraph 2.56).  Equally, however, it did not accept he was simply requested to do so.  What it found was that things progressed from totally open requests (the Respondent’s case) to an assumption that the Claimant would be working one or two later nights; asking when - not if - he would be working the later hours (see the ET’s finding at paragraph 3.11 that the Claimant was originally requested and then expected to work one or two evenings per week on the later shift). 

35.              The ET recognised that there might be real world factors that:

“2.56. … led the Claimant to decide that it was in his interests financially/in terms of career progression for him to work late. …”

 

Whilst thus politic, the ET did not consider the Claimant could thus be described as forced to work those later hours, but I do not see that means that - on the ET’s own findings - there was no requirement for him to do so.  I can see that “requirement” may be taken to imply some element of compulsion, but I do not read the term as limited to that and I can equally see that an expectation or assumption placed upon an employee might well suffice.  As the ET recognised by its reference to commercial or political factors (which I take to be referable to the workplace rather than more generally), employees can feel obliged to work in a particular way even if disadvantageous to their health.  In that context, characterising an employer’s expectation as a requirement - when it was recognised the Claimant was thereby placed at a disadvantage due to his disability - would seem an entirely straightforward construction of the Claimant’s case.

 

36.              Given that the Claimant was characterising the requirement as a form of practice by the Respondent, I agree the ET’s approach was overly technical and led it to treat the Claimant’s case as having been put more narrowly than it in fact was. 

 

37.              That was a point that might have been clarified further for the ET had it had before it the Claimant’s final submissions by way of reply.  Although a direction had been given that allowed for the Claimant to have that opportunity, it appears the ET did not have those submissions in front of it when making its decision.  That was unfortunate.  It was, moreover, a procedural mishap that, whatever the cause, should have been rectified.  Given the view I have taken as to how the Claimant’s case was in fact put, however, the issue in respect of his submissions by way of reply does not continue to give rise to a substantive difficulty.  Having concluded - as I do - that the ET took an unduly narrow view of the Claimant’s identification of the PCP, and that it should, instead, have adopted a real world view of what a requirement was in this context, it is apparent that the ET found that what the Claimant had alleged had indeed occurred: the Respondent did not continue to make entirely open requests of the Claimant, it became not a matter of whether he would work later hours but simply as to when he would do so.  Given the nature of the employment relationship, there was an element of compulsion, even if not to the level that the Claimant’s case, at its highest, had contended.

 

38.              Although the ET effectively stopped at the first stage of its consideration of the disability discrimination case, it plainly did find, as the Claimant says, that he suffered a disadvantage as compared to a non-disabled comparator as a result of the PCP of working later hours (see paragraph 3.11).  I am not sure, however, that the ET’s finding goes so far as to determine the nature and extent of that disadvantage, and it certainly did not go on to assess the steps that it might have been reasonable for the Respondent to take at the relevant time, the adjustments it might have been obliged to make.  Noting (from the ET’s recitation of the factual background) that it might be said that cover for the Claimant became more difficult over time, I do not think this is a matter on which it would be right for me to seek to reach a view; more than one outcome is possible, and this is a matter that must be remitted to the ET to determine, first, as to the nature and effect of the disadvantage (Rowan) and, second, as to the question of any reasonable adjustments.

 

39.              Before considering the issue of disposal any further, I turn to the second aspect of the appeal: the ET’s finding on the Claimant’s claim of constructive unfair dismissal; specifically, as to his reason for resigning. 

 

40.              Having found that the Respondent’s conduct, taken cumulatively, amounted to a fundamental breach of contract, the ET had to determine whether the Claimant had resigned in response.  On this question, the parties are agreed: the correct approach is as laid down by Keene LJ in Meikle, which recognises that the question is not so much whether the Respondent’s breach of contract constituted the reason for resignation than as to whether it constituted a reason for that resignation.  As Langstaff J put it in Lochuack, that recognises there may well be concurrent causes operating on the mind of an employee; that is not fatal to a claim of constructive dismissal.

 

41.              Here, it seems to me that the ET was led into error by the description of the point in the list of issues: whether the Respondent’s breaches of contract were the reason for the Claimant’s resignation.  In looking at its conclusions, it is apparent that the ET focused on whether this was the only reason and - finding there were others that also operated on the Claimant’s mind - considered that it was fatal if not. 

 

42.              That error alone would be sufficient to render the ET’s conclusions on this question unsafe.  Even if I am wrong about that, however, I also think the ET erred more generally in how it approached this question in this case.  Appreciating Mr Rahman’s observation (for the Respondent) that an ET’s decision has to be viewed as a whole and one must be careful not to read errors of law merely from a failure to set out every point, I consider the starting point here required the ET to be clear as to when the Claimant resigned.  That was not difficult as the parties were agreed that was on 14 February.  That was not a resignation by means of words spoken in the heat of the moment, but a considered view, taken after the Claimant had left the office for some two hours and had returned to inform Ms Barlow that he considered Mr Mardel’s conduct that morning to have been abusive and unacceptable and was resigning.  When required to put that in writing, the Claimant did so, sending his simple one-line email, “I hereby resign”.  That being so, the next task was to determine what had led the Claimant to that point and whether that included the Respondent’s repudiatory breach of contract?  It was not necessarily irrelevant to look at what the Claimant did next - that might have been evidentially relevant in terms of any inference the ET was to draw - but it would need to be considered in that context.  It is hard, for example, to see the Claimant’s subsequent move to join his wife in the US would mean that the Respondent’s conduct was not a reason for his resignation on 14 February: prior to that morning, the evidence was that he was planning to stay in the UK at least until his personal injury claim was determined in November 2014; something happened that day to change his mind.  Equally, it is difficult to see why his case should be undermined by the fact that he did not immediately explain his reasons more fully; that would not prevent the Respondent’s breaches of contract forming part of his reasoning on 14 February.  As for whether he expected to be asked back and whether he would then have returned, that (i) did not prevent his resignation on 14 February being just that, a binding resignation; and (ii) would not prevent that being, at least in part, due to the Respondent’s breach of contract. 

 

43.              I therefore agree with the Claimant on this aspect of the appeal: the ET’s conclusion is unsafe.  Further, on the ET’s findings, I consider there was only one permissible conclusion: that the Claimant resigned in response to the Respondent’s repudiatory breach.

 

44.              That takes me to the Respondent’s cross-appeal.  I permitted this to proceed as it seemed that the ET had failed to engage with the question of waiver or acquiescence.  Having now had the opportunity to understand the way the case developed and the ET’s findings as a result, it seems to me that this in fact is not a question that can properly arise (and, to be fair, Mr Rahman’s submissions recognised the difficulties he faced in this regard).  The ET found the repudiation in this case arose from the cumulative effect of the various matters relied on; the last of which was Mr Mardel’s conduct on 14 February.  As the Claimant resigned immediately after that, there can be no real suggestion that he had waived the breach.  Mr Rahman urged that I keep this matter open for the ET on remission, but I do not think that is really tenable given the way the ET found repudiatory breach in this case.  I duly dismiss the cross-appeal and am bound to substitute my finding that the Claimant was indeed constructively dismissed.  On my reading of the list of issues, as the Respondent had not sought to put forward an alternative case as to fairness, if the Claimant made good his claim of constructive dismissal that must also lead to the conclusion that the unfair dismissal case was made out.

 

45.              The only issues for me to remit are, therefore, those I have identified on reasonable adjustments.  Having heard from the parties as to the question of remission, and having due regard to the guidance laid down in Sinclair Roche & Temperley v Heard [2004] IRLR 763, it seems to me this is not a case where it can properly be said that the ET’s decision was fundamentally flawed.  There are a number of points where its decisions were never challenged, and the errors I have found are not such as to undermine my confidence in this ET.  Moreover, I consider that it is better for the ET that has already made relevant findings relating to the PCP (as I have found) to approach the remaining questions under section 20 EqA.  I also suspect that the facts of this case are such that the ET members will soon recall it after having reminded themselves from their notes.  Whether they wish to hear further evidence will be a matter for the ET, after considering any representations from the parties in that regard.  So far as remains practicable, therefore, I remit the section 20 issues to the same ET.


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