Appeal against the dismissal of the Claimant’s claims of disability discrimination by reason of a failure to make reasonable adjustments and of constructive unfair dismissal. Respondent’s cross-appeal to the extent the ET had failed to address the question whether the Claimant had waived any breach of contract, relevant to the constructive dismissal claim. Appeal allowed, cross-appeal dismissed.
The Claimant worked long hours, often until 11pm, until he had a serious accident. Soon after the accident, he worked until 6.30pm or 7pm but after that initial period, it was the Claimant’s complaint that he was forced to work later hours by the Respondent; that it required him to work “unsuitable hours”. The Claimant contended he was put under pressure to work late and he was concerned that if he did not he might be made redundant or lose his bonus. He eventually resigned. He claimed disability discrimination and unfair constructive dismissal at the ET, both of which were dismissed. He appealed.
The EAT allowed the appeal. The Claimant had relied on a PCP of having been required to work late but the ET found that he had not been forced to work late: it was just an expectation. Given the Claimant was relying on the “requirement” as a form of “practice” by the Respondent, the ET’s approach, according to the EAT, was overly technical and led it to treat the Claimant’s case as having been more narrowly put than it in fact was. On the constructive dismissal claim the ET found the Respondent’s conduct – taken cumulatively – amounted to a fundamental breach of contract but did not consider that was the reason for the Claimant’s resignation. The EAT held that the ET had been led into error by assuming the breach of contract to be the only reason for the resignation; that alone rendered the decision unsafe. The cross-appeal was dismissed.