Carreras v United First Partners Research

An employer’s expectation or assumption that an employee will work particular hours may constitute a provision, criterion or practice for the reasonable-adjustments duty. The statutory language requires a liberal and real-world approach. A practice need not involve coercion where the employment relationship creates an effective obligation.

For constructive dismissal, a repudiatory breach need be a reason for resignation, not the sole reason. Concurrent motives do not defeat the claim. Later events may be evidentially relevant, but the tribunal must determine what caused the employee to resign when the resignation took effect.

The Claimant, an Analyst who had suffered serious injuries in a cycling accident, alleged disability discrimination through a failure to make reasonable adjustments and constructive unfair dismissal. The Employment Tribunal dismissed both claims.

The Tribunal found that, after initially making open requests, the Respondent came to expect the Claimant to work one or two late evenings each week. It nevertheless held that this was not the pleaded requirement to work late. It also found that the cumulative effect of the Respondent’s conduct was a fundamental breach of contract, but concluded that the breach was not the reason for the Claimant’s resignation.

The Claimant appealed. The Respondent cross-appealed on waiver or affirmation. The central issues were whether the expectation of late working was a relevant PCP and whether the repudiatory breach was a reason for the resignation.

1. Appeal allowed; cross-appeal dismissed. The Tribunal adopted an unduly technical construction of the alleged PCP. The Claimant had relied on a requirement to work unsuitable hours as a practice, rather than on a statutory “requirement” in a narrow sense.

2. The Tribunal’s findings established that the Respondent’s position had progressed from open requests to an expectation or assumption that the Claimant would work late and that the issue was when, rather than whether, he would do so. An expectation imposed within an employment relationship may create a sufficient obligation even though the employee was not coerced. The Tribunal’s findings therefore established the PCP and also established disadvantage caused by late working.

3. The reasonable-adjustments claim could not be finally determined by the EAT. The Tribunal had not determined the nature and extent of the disadvantage or what steps it would have been reasonable for the Respondent to take under section 20 of the Equality Act 2010. Those issues were remitted to the same Tribunal.

4. On constructive dismissal, the correct question was whether the repudiatory breach was a reason for resignation. It need not have been the only reason. The Tribunal erred by treating other possible motives as fatal and by concentrating on matters after the resignation rather than what led the Claimant to resign on 14 February.

5. On the Tribunal’s findings, the only permissible conclusion was that the Claimant resigned, at least in part, in response to the cumulative repudiatory breach. As the Respondent had advanced no alternative case on fairness, the EAT substituted a finding of constructive unfair dismissal. Because the final act contributing to the cumulative breach occurred on the day of resignation, waiver or affirmation could not properly arise.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal from the London (Central) Employment Tribunal, substituted a finding of constructive unfair dismissal, and remitted outstanding reasonable-adjustments issues to the same Tribunal.
• Employment Tribunal: London (Central) Employment Tribunal, judgment sent on 8 May 2015, dismissed the claims for failure to make reasonable adjustments and constructive unfair dismissal.