United First Partners Research v Carreras

For the reasonable-adjustments duty, a requirement under section 20(3) of the Equality Act 2010 need not involve coercion or remove all real choice. A practice of repeated requests which creates an expectation that an employee will work particular hours may be a PCP. In constructive dismissal, an employee need not resign solely because of the employer’s repudiatory breach. It is enough that the breach is a substantial part of the reasons. A sequence of non-fundamental breaches may cumulatively amount to a fundamental breach, with a final incident operating as the last straw. The relevant causation question is what caused the resignation when it was made. A separate motive or anticipated reconciliation does not negate the employer’s breach as a cause.

The claimant, an analyst who had continuing symptoms after a cycling accident, brought claims for disability discrimination and unfair dismissal. He alleged that the respondent had failed to make reasonable adjustments by requiring him to work late evenings, and that he had been constructively dismissed.

The Employment Tribunal found that the respondent expected him to work late but held that no PCP had been established because he had not been coerced. It also found a cumulative repudiatory breach but concluded that he had not resigned in response to it. The Employment Appeal Tribunal allowed the claimant’s appeal and dismissed the respondent’s cross-appeal. The issues before the Court of Appeal were whether the expectation constituted a PCP and whether the claimant resigned in response to the cumulative breach.

1. PCP issue. The appeal was dismissed. Although agreed issues should generally be respected, the word requirement had to be construed in the context of the whole pleading. It did not import a requirement of coercion or the absence of any real choice. Repeated requests which developed into an expectation that the claimant would work one or two evenings each week could constitute a practice within section 20(3) of the Equality Act 2010. The Employment Tribunal’s primary findings established that PCP. The claimant’s commercial or career considerations in agreeing to work late were immaterial to the existence of the PCP, though they might bear on other statutory elements or quantum.
2. The Employment Appeal Tribunal’s observation that the Employment Tribunal might have been influenced by the absence of the claimant’s reply submissions formed no part of its substantive reasoning. The ground therefore raised no material issue.
3. Constructive dismissal. Under section 95(1)(c) of the Employment Rights Act 1996, the employee must terminate the contract in circumstances entitling termination without notice by reason of the employer’s repudiatory conduct. Where the employee has mixed reasons, the breach need only be at least a substantial part of the reasons for resignation. A sequence of acts, none individually fundamental, may cumulatively amount to a repudiatory breach; the final act may be the last straw without being independently repudiatory.
4. The claimant’s resignation had to be assessed when it was made. The immediate cause was the final incident, which formed part of the cumulative breach found by the Employment Tribunal. His possible move to the United States, his expectation that the respondent might ask him to return, and the brevity of his resignation email did not negate that causal connection. The Employment Tribunal’s conclusion rested on flawed reasoning, and the primary facts permitted only the conclusion that he resigned in response to the breach. The appeal was dismissed on both issues. Underhill LJ gave the leading judgment; Bean LJ and Asplin LJ agreed.

1. Court of Appeal (Civil Division): dismissed the respondent’s appeal on the PCP and constructive dismissal issues. [2018] EWCA Civ 323
2. Employment Appeal Tribunal: allowed the claimant’s appeal, dismissed the respondent’s cross-appeal, and remitted the disability discrimination claim for the remaining issues.
3. Employment Tribunal, London Central: dismissed the disability discrimination and unfair dismissal claims.