EAT Decision in The No 8 Partnership v Maxine Simmons Addresses Constructive Dismissal and Associative Disability Discrimination
Introduction
The Employment Appeal Tribunal (EAT) case of The No 8 Partnership v Maxine Simmons [2023] EAT 140 addresses two pivotal employment law issues—constructive unfair dismissal and associative disability discrimination. The EAT’s judgment scrutinizes an Employment Tribunal’s (ET) methodology and the legal principles that underpin its conclusions. The EAT provides guidance on the proper construction of hypothetical comparators in associative discrimination claims and the appropriate approach to determining a breach of the implied term of trust and confidence for constructive dismissal.
Key Facts
Maxine Simmons, a long-serving employee of The No 8 Partnership dental practice, resigned following the partnership’s refusal to accommodate her request for reduced working hours to care for her dependent father, who had dementia. She pursued claims of constructive unfair dismissal and direct associative disability discrimination.
The ET initially upheld her claims, concluding that the employer breached the implied term of trust and confidence. They also deemed that a discriminatory act had occurred based on the associative disability of the employee’s father.
On appeal, the respondent challenged both the findings of the ET on procedural and substantive grounds, particularly taking issue with the ET’s construction of hypothetical comparators in the absence of evidence or submissions on those specific circumstances.
Legal Principals
Constructive Unfair Dismissal
A claimant alleging constructive unfair dismissal must establish that the employer’s conduct amounted to a fundamental breach of the employment contract, that this breach caused the resignation, and that the resignation was not unreasonably delayed. The EAT criticised the ET for misapplying the test for breach of the implied term of trust and confidence, and for failing to engross reasons for why certain acts of the employer constituted a breach.
The implied term of trust and confidence referenced is found in Malik v BCCI SA [1997] ICR 606, HL, requiring that an employer not act in a manner likely to seriously damage the relationship between employer and employee. The ET’s approach to determining the “reasonable and proper cause” was seen as flawed because it had already found a breach independently of establishing reasonable cause.
Associative Disability Discrimination
Direct associative discrimination occurs when an individual is treated less favorably because of their association with a person with a protected characteristic. The test is whether the claimant was treated less favorably than others in similar circumstances (Equality Act 2010, section 13). The EAT found that the ET erred by constructing flawed hypothetical comparators, not comparable to the claimant’s circumstances. Moreover, the reason why the less favorable treatment was provided by the employer (the “reason why” test in discrimination) was not appropriately analyzed.
The ET relied on erroneous hypothetical comparators with no evidential basis, taken as a procedural misstep in Neale v Hereford and Worcester County Council [1986] ICR 471 CA. The EAT highlighted that the ET’s conclusion of discrimination was untenable based on its findings, particularly given its previous determination that the refusal to grant the employee’s leave was due to an “unwarranted interpretation” of section 57A of the Employment Rights Act (ERA) 1996, rather than the disability of her father.
Outcomes
The EAT allowed the appeal, resulting in the setting aside of the ET’s judgment. For the associative discrimination claim, the EAT dismissed the claim entirely based on the ET’s findings. However, concerning unfair dismissal, the EAT found that remittal to a different ET for a fresh hearing was necessary due to the ET’s misapplication of legal principles and inadequate reasoning.
Conclusion
The EAT’s decision in The No 8 Partnership v Simmons underscores the importance of precise comparison and holistic reasoning in discrimination cases. It emphasizes the necessity for ETs to provide transparent frameworks for their decisions, founded on sound legal principles and rigorously applied to the facts. For constructive unfair dismissal claims, it spotlights the interplay between the employer’s reasons for their conduct and the presence of a breach of the implied term of trust and confidence. The detailed reevaluation by the EAT in this case serves as a caution to ETs and a guide for lawyers navigating similar cases.