United First Partners Research v Carreras

The Court of Appeal dismissed the employer's appeal against the Employment Appeal Tribunal's decision. The court held that the Employment Tribunal had taken too narrow an approach when identifying the relevant "provision, criterion or practice" (PCP) under section 20 of the Equality Act 2010: the pleaded "requirement" to work evening hours was properly understood as a workplace practice or expectation which, on the tribunal's primary findings, amounted to a PCP. The court also upheld the Employment Appeal Tribunal on constructive dismissal, holding that the claimant's one-line resignation was an effective termination and that, on the tribunal's findings that a series of matters cumulatively amounted to a repudiatory breach of the implied term of trust and confidence, the claimant's resignation was in response to that breach. The decision applied section 20 of the Equality Act 2010 and section 95(1)(c) of the Employment Rights Act 1996 in that statutory and contractual context.

The claimant, an analyst, suffered serious symptoms after a cycling accident and worked reduced evening hours on return. Over time the employer asked him increasingly to work late evenings and by late 2013 an expectation had developed that he would work one or two evenings a week. On 14 February 2014 a confrontation with a senior manager led the claimant to resign by a one-line email. He later provided a detailed explanation listing unpaid bonuses, the evening-hours practice and inaccurate information given to his personal injury lawyers. He brought claims in the Employment Tribunal for disability discrimination by failure to make reasonable adjustments (relying on section 20 of the Equality Act 2010) and for unfair dismissal, advanced alternatively as an actual dismissal or as constructive dismissal under section 95(1)(c) of the Employment Rights Act 1996.

The Employment Tribunal dismissed both claims, finding that the employer had not "required" the claimant to work evenings (there had been at most an expectation) and that, although the tribunal found a cumulative repudiatory breach of the implied term of trust and confidence, the claimant had not resigned in response to that breach. The claimant appealed to the Employment Appeal Tribunal which held that the tribunal had adopted too narrow an approach to the PCP, that the workplace expectation could properly be characterised as a PCP, and that on the tribunal's primary findings the claimant had resigned in response to a fundamental breach; the disability claim was remitted for further determination of remaining issues.

On appeal to the Court of Appeal the employer argued the Employment Tribunal was entitled to decide the PCP issue by reference to the agreed issue language and that the tribunal's factual finding that the claimant was not coerced to work evenings negated any "requirement". The Court of Appeal rejected that narrow reading, explaining that in context "requirement" could properly mean a practice or expectation and that the pleaded case (and the tribunal's primary findings) supported treating the evening working expectation as a PCP. On constructive dismissal the court held the Employment Tribunal's reasoning that the claimant had not resigned in response to the cumulative repudiatory breach was unsafe: the one-line email was an unequivocal resignation and, given the tribunal's finding that the series of matters cumulatively amounted to a fundamental breach, the claimant's resignation was at least in part in response to that breach, so the constructive dismissal claim should have succeeded.

Procedural note: the Employment Tribunal had taken written closing submissions only; the Employment Appeal Tribunal observed that that practice is undesirable but made clear that its decision did not turn on any possible omission by the Employment Tribunal to which written submissions had been addressed.

The appeal to the Court of Appeal was dismissed. The court concluded that (1) the Employment Tribunal had erred in characterising the PCP too narrowly — the workplace expectation that the claimant work evening hours could amount to a PCP for the purposes of section 20 of the Equality Act 2010 — and (2) on the tribunal's primary findings the claimant's one-line resignation was an effective termination given that the tribunal had found a cumulative repudiatory breach of the implied term of trust and confidence, so the constructive dismissal claim succeeded. The Employment Appeal Tribunal's approach was upheld and the employer's appeal therefore failed.

Employment Tribunal at London Central: judgment with reasons sent 8 May 2015, claims dismissed. Employment Appeal Tribunal (HH Judge Eady QC): decision dated 7 April 2016 (judgment sent to parties 25 May 2016) allowing the claimant's appeal and remitting aspects of the discrimination claim to the Employment Tribunal. Court of Appeal (Civil Division): appeal dismissed 28 February 2018 ([2018] EWCA Civ 323).