The No 8 Partnership v Maxine Simmons

The Employment Appeal Tribunal allowed the respondent's appeal against findings of constructive unfair dismissal and direct associative disability discrimination. The EAT held that the Employment Tribunal's use of hypothetical comparators was procedurally unfair because those comparators had not been put to the parties for evidence or submissions and that the comparators used were not truly like-for-like under section 23 Equality Act 2010. The ET's conclusion that the refusal of time off under section 57A Employment Rights Act 1996 was motivated by the claimant's father's disability was held to be perverse in light of the ET's own findings.

Key legal principles: application of section 13 Equality Act 2010 (direct associative discrimination); section 57A ERA (time off for dependants); implied term of mutual trust and confidence (Malik v BCCI); need for procedural fairness when constructing hypothetical comparators; requirement that comparators be materially comparable under section 23 EqA.

This appeal arose from an ET decision upholding the claimant's claims of constructive unfair dismissal and direct associative disability discrimination after the respondent refused the claimant time off to care for her elderly father and declined a proposal that she return for one day a week during the Covid-19 reopening. The claimant worked part-time for the respondent dental partnership for many years and sought continued furlough or time off because her father had advanced dementia.

Nature of the claims:

• Constructive unfair dismissal: the claimant asserted she was forced to resign because of a fundamental breach of the implied term of mutual trust and confidence.
• Direct associative disability discrimination: the claimant relied on section 13 Equality Act 2010, arguing she was treated less favourably because of her association with her disabled father, and complained about the respondent's refusal of emergency care leave under section 57A Employment Rights Act 1996.

Issues framed by the court:

• Whether the respondent refused the claimant's request for emergency dependent's leave.
• If so, whether the claimant was treated less favourably than others in materially comparable circumstances (section 23 EqA) or whether the treatment was because of her father's disability.
• Whether the respondent's conduct breached the implied term of trust and confidence and thus gave rise to constructive dismissal.

Court's reasoning: The EAT found the ET had constructed two hypothetical comparators (a carer of a school-age child and a carer of a spouse with cancer) without giving the parties an opportunity to address those comparisons, resulting in procedural unfairness. The putative comparators were also flawed: the school-child comparator lacked necessary detail and evidential testing, and the cancer comparator retained the protected characteristic so was unsuitable for section 13 comparison. The ET had itself found the respondent's refusal of section 57A leave was an "unwarranted interpretation" of the statute and that one partner displayed a general dismissive attitude to caring for aged parents; the EAT considered it was perverse to conclude that the refusal was because of the father's disability. That undermined the ET's discrimination finding and, in turn, part of its constructive dismissal reasoning. The ET had also failed to apply properly the Malik test on trust and confidence and had not explained why the communications that did occur did not amount to adequate personal contact. The EAT substituted dismissal of the section 13 claim and remitted the constructive dismissal claim to a differently constituted ET for re-hearing.

Appeal allowed. The EAT held that the ET's construction and reliance upon hypothetical comparators without giving the parties a chance to address them was procedurally unfair, that the comparators were not genuinely like-for-like under section 23 Equality Act 2010 and that the ET's conclusion that the refusal of section 57A leave was because of the claimant's father's disability was perverse. Those errors undermined the discrimination finding and part of the constructive dismissal reasoning. The EAT dismissed the section 13 claim and remitted the constructive unfair dismissal claim to a differently constituted ET because the ET had also misapplied the test for breach of the implied term of trust and confidence and failed to give adequate reasons.

First instance: London Central Employment Tribunal (Employment Judge Paul Stewart with lay members) heard the claim on 8–9 April 2021 and issued written reasons on 2 June 2021, upholding claims of constructive unfair dismissal and direct associative discrimination. Appeal to the Employment Appeal Tribunal resulted in judgment [2023] EAT 140 allowing the respondent's appeal, dismissing the section 13 claim and remitting the constructive dismissal claim for re-hearing before a differently constituted ET.