Sharfudeen v T J Morris Ltd t/a Home Bargains

For constructive dismissal, an employee's loss of trust and confidence is insufficient by itself. The tribunal must objectively decide whether the employer, without reasonable and proper cause, acted in a manner calculated and likely to destroy or seriously damage that relationship. This is the unvarnished Malik test, not the range of reasonable responses test.

For direct discrimination, a difference in protected status and treatment alone does not shift the burden of proof. Materially different comparators and a credible non-discriminatory explanation may defeat the claim. Entitlement to statutory paternity pay is governed by the applicable pay regulations, including their written-notice requirements, rather than regulations concerning leave.

The Claimant, an Indian national and store manager, unsuccessfully sought a lateral transfer to a new store. The Respondent used a competitive assessment process which the Employment Tribunal found had been devised for promotions rather than lateral transfers. The Claimant later resigned after his grievance was rejected.

The Watford Employment Tribunal dismissed claims for constructive unfair dismissal, race discrimination and paternity pay. It found that the Respondent had reasonable and proper cause for using a selection process, that the proposed comparators were not in like circumstances, and that the paternity-pay claim was both deficient and out of time.

The Claimant appealed, principally contending that the Tribunal had wrongly applied a range of reasonable responses approach, had erred on the burden of proof, and had wrongly required written notice for paternity pay.

1. Appeal dismissed. The Employment Tribunal had not substituted a range of reasonable responses test for the contractual test governing constructive dismissal.

2. Under the implied term identified in Malik, an employer must not, without reasonable and proper cause, act in a manner calculated and likely to destroy or seriously damage mutual trust and confidence. The question is objective. Although the Claimant's confidence may have been destroyed by the refusal of the transfer and the grievance outcome, the Tribunal was entitled to find reasonable and proper cause. There were five applicants for the post and the Respondent was entitled to devise and use a method of selecting the best candidate.

3. The race-discrimination claim also failed. The Tribunal was entitled to find that the burden under section 136(2) of the Equality Act 2010 had not shifted. It had rejected potentially corroborative allegations and found that the proposed comparator appointed to a temporary post was not in like circumstances. In any event, the Tribunal permissibly found that the competitive selection process, rather than nationality, explained the treatment.

4. The paternity-pay appeal was independently barred because the Tribunal's finding that the claim was out of time was not challenged by a permitted ground of appeal. In any event, the applicable provisions were the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002, not the leave regulations. The Tribunal was entitled to find that the prescribed information had not been provided in writing.

• Employment Appeal Tribunal: dismissed the Claimant's appeal: [2017] UKEAT 0272_16_0303.
• Watford Employment Tribunal: dismissed the claims for constructive unfair dismissal, disability and race discrimination, and paternity pay, by a judgment sent to the parties on 13 May 2015.