The Facts
Maxine Simmons, a dental nurse, worked for "No 8"dental practice two days per week. In March 2020, No 8 closed due to the Covid-19 pandemic and the employees were placed on furlough. No 8 informed the staff of its intention to re-open for emergency treatment from 26 May. Ms Simmons expressed concerns about her increasing caring needs for her elderly father, who suffered from dementia, and asked to remain on furlough for an extra four months until the end of September 2020 so that she could continue to support her father until he was admitted into care. No 8 refused and gave her three days to confirm that she would return to her contracted hours as from 25 June, stating that those days should allow her to make arrangements for her father. Ms Simmons resigned on 26 June.
She brought employment tribunal proceedings of constructive unfair dismissal and direct discrimination by association. In respect of the constructive unfair dismissal claim, the tribunal noted that No 8 had refused to grant Ms Simmons emergency care leave and failed to identify a short-term solution to her care difficulties. It concluded that those actions amounted to a breach of the implied term of trust and confidence and that the she had resigned in response to that breach, so that she had been constructively dismissed.
The tribunal upheld the employee’s claim of direct discrimination on the associative basis of her father’s disability. It found that No 8 had wrongly refused the employee’s request for time off for dependants for a reasonable amount of time off to make arrangements for the provision of care for a dependant who was ill. In its judgment the tribunal considered the position in relation to two hypothetical comparators, and concluded that Ms Simmons had been treated less favourably. The comparators were a carer of a school-aged child and the spouse / partner of a person undertaking cancer treatment. No 8 appealed to the EAT which upheld the appeal.
Key to the EAT's decision to uphold the appeal were:
- Ms Simmons had not sought to draw any comparisons with actual or hypothetical comparators when pursuing her claim.
- The fact that the tribunal did not give the parties an opportunity to address its hypothetical comparators meant the tribunal had adopted an unfair procedure.
- The hypothetical comparators constructed by the tribunal failed to satisfy the like-for-like comparison required by the Equality Act 2010.
- With the carer of a school-aged child, the tribunal failed to specify the age of the child in question and to design a workable comparison or to test it against how this employee would have responded to the circumstances. The tribunal had no evidence as to that point, since it had not been identified prior to judgment.
- The second comparator (the spouse / partner of a person undertaking cancer treatment) failed because the comparator shared the protected characteristic of associative disability. Even if that was not fatal to the comparison, the tribunal would have also had to consider questions of relative vulnerability and as to the frequency and type of care needed in each case.
- In considering whether the less favourable treatment relied on by Ms Simmons was because of her father’s disability, the tribunal stated No 8 had demonstrated a “rather dismissive approach” to the question of care required by aged parents. However, it was unclear how it then arrived at its conclusion that that approach demonstrated that the father’s disability was the reason for the less favourable treatment. It appeared from the evidence relied on by No 8 that it would have responded to Ms Simmons' request in the same way, whether or not her father was disabled. The employee's treatment therefore did not amount to direct associative disability discrimination.
- Its findings in relation to those comparators were material to its reasoning on the associative discrimination claim, which also fed into its decision on the constructive dismissal claim which was unsafe.
What does this mean for employers?
The case shows that finding comparators for direct associative discrimination claims is difficult. If tribunals do try to construct comparators, where the claimant has not relied on them, they must allow the parties to comment on these comparators before coming to a decision. It is also a reminder that where there is no obvious direct comparator the tribunal can focus on why the employer acted as it did instead. Given the evident difficulty in finding comparators this may well be the focus in these types of claim going forwards.
