Background: 

The claimant is a dental nurse and worked for the respondent from March 1990 until her resignation in June 2020.    The issue arose in relation to the Coronavirus pandemic.   Plans were put in place in May 2020 to re-open the practice for emergency treatment.   The claimant stated that she had ‘grave concerns’ about her commute to work and noted that she had caring responsibilities for her caring father.   As a result, the claimant requested that she be furloughed until the end of September.  The respondent could not agree to this and the claimant responded stating that, in the circumstances, she would be willing to return to work one day a week (she was working two days per week at this point).  

The claimant engaged a solicitor who replied outlining the particular difficulties faced by the claimant and the potential legal ramifications.  This subsequently led to a letter of resignation.  There was a claim for constructive dismissal and direct associative discrimination.   

Outcome: 

At first instance, the Tribunal allowed the claims noting that the respondent had failed to grant emergency care leave, declined her request to work one day per week as logistically not possible and failed to identify any short-term solutions.  

In making their decision the Tribunal constructed hypothetical comparators without giving the parties the opportunity to give evidence or make submissions on those comparators.  The Tribunal further found that the reason for the refusal of the emergency leave was the respondent’s unwarranted misrepresentation of the section and that one of the decision makers was dismissive of the care that elderly parents require.   It was on the basis of that finding of associative discrimination that it was found that there was a breach of the implied term of trust and confidence. 

The EAT allowed the appeal.  They stated that the failure to allow the parties to address the comparators there was an unfair procedure.   Additionally, it was found that there was a failure to provide a like-for-like comparison as required and that the comparison constructed was with someone who had the same protected characteristic.    Considering that the discrimination claim was the precursor to the finding in the constructive dismissal claim both of those claims were set aside.  The case was remitted back to a fresh Tribunal for decision. 

Practical Guidance for Employers: 

This case deals with the occasionally troublesome issue of establishing comparators.  The problem here was the Tribunal constructing the hypothetical comparator without allowing the parties to make submission on it.  It is also important to note that the factor of fundamental importance is ensuring that the comparator does not have the same protected characteristic as otherwise it would be a facile exercise.  

The full case is available here:
https://assets.publishing.service.gov.uk/media/654b6b9de70413000ffc49da/The_No_8_Partnership_v_Ms_Maxine_Simmons__2023__EAT_140.pdf