Key Facts
- •The claimant, a dental nurse with 30 years of service, resigned after her employer refused her request for time off to care for her elderly, disabled father.
- •The employer refused the request, citing logistical difficulties and misinterpreting the relevant section of the Employment Rights Act 1996.
- •The claimant claimed constructive unfair dismissal and direct associative disability discrimination.
- •The Employment Tribunal (ET) upheld both claims.
- •The employer appealed.
Legal Principles
Constructive unfair dismissal occurs when an employer's conduct constitutes a significant breach of contract, entitling the employee to resign.
Western Excavating (ECC) Ltd v Sharp [1978] ICR 221
An employer breaches the implied term of mutual trust and confidence by acting without reasonable and proper cause in a manner likely to damage the employment relationship.
Malik v BCCI SA (in compulsory liquidation) [1997] ICR 606
Direct associative discrimination occurs when someone is treated less favorably because of a protected characteristic of someone they are associated with.
Equality Act 2010, section 13
When assessing less favourable treatment, a like-for-like comparison must be made, with no material differences in circumstances.
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11
Section 57A Employment Rights Act 1996 allows employees reasonable time off to care for ill dependents.
Employment Rights Act 1996, section 57A
Outcomes
Appeal allowed; ET's judgment set aside.
The ET adopted unfair procedure by constructing hypothetical comparators without giving the parties the opportunity to address them. The comparators were flawed and the ET's finding of discrimination was perverse.
Claim under section 13 Equality Act 2010 (associative discrimination) dismissed.
The ET's finding of discrimination was perverse based on its own factual findings; the employer's actions were not linked to the claimant's father's disability.
Claim for constructive unfair dismissal remitted to a differently constituted ET for rehearing.
The ET failed to apply the correct legal test for constructive dismissal and provided inadequate explanation for its decision.