The No 8 Partnership v Maxine Simmons

An Employment Tribunal must not construct material hypothetical comparators for a direct-discrimination claim without giving the parties a fair opportunity to address them, unless the point is plainly peripheral or incapable of useful response. Any comparator must satisfy the like-for-like requirement in section 23 of the Equality Act 2010; a person associated with the same disability cannot ordinarily provide a comparator for associative disability discrimination.

Where the alleged discriminator’s established reason is an erroneous interpretation of statutory leave rights, the tribunal must explain why that reason was because of disability. An attitude to caring for aged parents generally does not, without more, establish treatment because of disability. A constructive-dismissal finding based on the implied term of trust and confidence must address whether the employer acted without reasonable and proper cause.

The claimant, a dental nurse of long service, resigned after the respondent refused her requests to remain on furlough, work one day per week, or take time off to arrange care for her elderly father, who had Alzheimer’s disease. She brought claims of constructive unfair dismissal and direct disability discrimination by association.

The Employment Tribunal upheld both claims. It held that the respondent had wrongly interpreted section 57A of the Employment Rights Act 1996, constructed two hypothetical comparators, and found that the claimant had been treated less favourably because of her father’s disability. It also found breaches of the implied term of trust and confidence.

The respondent appealed. The central issues were whether the Tribunal’s comparator and causation analysis was lawful, and whether it had applied the correct test for constructive dismissal.

1. Appeal allowed. The Employment Tribunal’s judgment was set aside. The direct associative disability-discrimination claim was dismissed. The constructive-unfair-dismissal claim was remitted for a fresh hearing before a differently constituted Tribunal.

2. The Tribunal adopted an unfair procedure by constructing two hypothetical comparators without allowing the parties to address them in evidence or submissions. The comparisons were central to its discrimination reasoning, not peripheral. A finding of unlawful discrimination also made it especially important that the respondent had an opportunity to answer the proposed basis for the finding.

3. The comparators were substantively defective under section 23 of the Equality Act 2010. The carer of a school-age child was not shown to be in materially comparable circumstances. The comparator caring for a spouse or partner with cancer shared the relevant associative disability characteristic and could not provide the required contrast. The evidence concerning a receptionist medically advised to shield did not establish how the respondent would have treated either hypothetical comparator.

4. The Tribunal’s own findings made its conclusion on causation perverse. It found that the refusal of time off resulted from an unwarranted interpretation of section 57A of the Employment Rights Act 1996. It did not explain why that interpretation was because of the father’s disability. Its finding that a partner held a dismissive view about care for aged parents instead suggested that he would have responded in the same way whether or not the father was disabled. The only permissible outcome on the section 13 claim was dismissal.

5. The constructive-dismissal decision could not stand because it partly depended on the discrimination finding. Independently, the Tribunal had not adequately explained why the absence of personal contact, despite recorded telephone and email communications, amounted to breach. It also failed to apply the Malik test at the correct stage: whether the employer, without reasonable and proper cause, acted in a manner calculated or likely seriously to damage mutual trust and confidence.

6. The EAT could not safely determine the constructive-dismissal claim itself. The errors might reflect inadequate reasons rather than a necessarily perverse conclusion. It was therefore remitted for re-hearing before a different Tribunal.

• Employment Appeal Tribunal: Allowed the respondent’s appeal, set aside the Employment Tribunal’s judgment, dismissed the section 13 claim under the Equality Act 2010, and remitted constructive unfair dismissal for a fresh hearing.
• London Central Employment Tribunal: Upheld claims of constructive unfair dismissal and direct associative disability discrimination in a written judgment and reasons sent on 2 June 2021.