1. As noted by Laing J, when putting this matter through to a Full Hearing, the ET essentially dismissed the disability discrimination claim because it found that an expectation or assumption that the Claimant should work late was not the pleaded PCP.

1. The identification of the PCP was an important aspect of the ET's task; the starting point for its determination of a claim of disability discrimination by way of a failure to make reasonable adjustments (see Environment Agency v Rowan [2008] IRLR 20 EAT, paragraph 27). In approaching the statutory definition in this regard, the protective nature of the legislation means a liberal rather than an overly technical or narrow approach is to be adopted (Langstaff J, paragraph 18 of Harvey); that is consistent with the Code, which states (paragraph 6.10) that the phrase "provision, criterion or practice" is to be widely construed.

1. It is important to be clear, however, as to how the PCP is to be described in any particular case (and I note the observations of Lewison LJ and Underhill LJ on this issue in Paulley). And there has to be a causative link between the PCP and the disadvantage; it is this that will inform the determination of what adjustments a Respondent was obliged to make.

1. In the present case, the ET sought to clarify the issues with the parties at the outset of the hearing. It would have been aware that the Claimant's case - as characterised in his ET1 - complained that, in requiring him to work unsuitable hours, the Respondent had failed to make reasonable adjustments. A "requirement" might imply something rather narrower than a PCP; after all, the adoption of the language of "provision, criteria or practice" rather than "requirement" or "condition" - for the purposes of defining indirect discrimination - is generally viewed as heralding a broader and more flexible approach. It is, of course, not suggested that the Claimant was here using "requirement" in any statutory sense; he was simply identifying the PCP. Whatever he was relying on, he was saying that it was a provision, a criterion or (and this might be the more natural way of seeing it) a practice. In explaining his case more fully in the opening discussion with the ET, the Claimant described being required or forced to work the later hours. That was to be contrasted with the Respondent's case, which denied that the Claimant was forced to undertake the later hours: he was initially allowed to work those hours, and subsequently there were requests for him to do so. That was the issue between the parties.

1. Having considered the evidence, the ET did not accept the Claimant's description of having been forced - as in coerced - to work the later hours, as such (paragraph 2.56). Equally, however, it did not accept he was simply requested to do so. What it found was that things progressed from totally open requests (the Respondent's case) to an assumption that the Claimant would be working one or two later nights; asking when - not if - he would be working the later hours (see the ET's finding at paragraph 3.11 that the Claimant was originally requested and then expected to work one or two evenings per week on the later shift).

1. The ET recognised that there might be real world factors that:

"2.56. … led the Claimant to decide that it was in his interests financially/in terms of career progression for him to work late. …"

Whilst thus politic, the ET did not consider the Claimant could thus be described as forced to work those later hours, but I do not see that means that - on the ET's own findings - there was no requirement for him to do so. I can see that "requirement" may be taken to imply some element of compulsion, but I do not read the term as limited to that and I can equally see that an expectation or assumption placed upon an employee might well suffice. As the ET recognised by its reference to commercial or political factors (which I take to be referable to the workplace rather than more generally), employees can feel obliged to work in a particular way even if disadvantageous to their health. In that context, characterising an employer's expectation as a requirement - when it was recognised the Claimant was thereby placed at a disadvantage due to his disability - would seem an entirely straightforward construction of the Claimant's case.

1. Given that the Claimant was characterising the requirement as a form of practice by the Respondent, I agree the ET's approach was overly technical and led it to treat the Claimant's case as having been put more narrowly than it in fact was.

1. That was a point that might have been clarified further for the ET had it had before it the Claimant's final submissions by way of reply. Although a direction had been given that allowed for the Claimant to have that opportunity, it appears the ET did not have those submissions in front of it when making its decision. That was unfortunate. It was, moreover, a procedural mishap that, whatever the cause, should have been rectified. Given the view I have taken as to how the Claimant's case was in fact put, however, the issue in respect of his submissions by way of reply does not continue to give rise to a substantive difficulty. Having concluded - as I do - that the ET took an unduly narrow view of the Claimant's identification of the PCP, and that it should, instead, have adopted a real world view of what a requirement was in this context, it is apparent that the ET found that what the Claimant had alleged had indeed occurred: the Respondent did not continue to make entirely open requests of the Claimant, it became not a matter of whether he would work later hours but simply as to when he would do so. Given the nature of the employment relationship, there was an element of compulsion, even if not to the level that the Claimant's case, at its highest, had contended.

1. Although the ET effectively stopped at the first stage of its consideration of the disability discrimination case, it plainly did find, as the Claimant says, that he suffered a disadvantage as compared to a non-disabled comparator as a result of the PCP of working later hours (see paragraph 3.11). I am not sure, however, that the ET's finding goes so far as to determine the nature and extent of that disadvantage, and it certainly did not go on to assess the steps that it might have been reasonable for the Respondent to take at the relevant time, the adjustments it might have been obliged to make. Noting (from the ET's recitation of the factual background) that it might be said that cover for the Claimant became more difficult over time, I do not think this is a matter on which it would be right for me to seek to reach a view; more than one outcome is possible, and this is a matter that must be remitted to the ET to determine, first, as to the nature and effect of the disadvantage (Rowan) and, second, as to the question of any reasonable adjustments.

1. Before considering the issue of disposal any further, I turn to the second aspect of the appeal: the ET's finding on the Claimant's claim of constructive unfair dismissal; specifically, as to his reason for resigning.

1. Having found that the Respondent's conduct, taken cumulatively, amounted to a fundamental breach of contract, the ET had to determine whether the Claimant had resigned in response. On this question, the parties are agreed: the correct approach is as laid down by Keene LJ in Meikle, which recognises that the question is not so much whether the Respondent's breach of contract constituted the reason for resignation than as to whether it constituted a reason for that resignation. As Langstaff J put it in Lochuack, that recognises there may well be concurrent causes operating on the mind of an employee; that is not fatal to a claim of constructive dismissal.

1. Here, it seems to me that the ET was led into error by the description of the point in the list of issues: whether the Respondent's breaches of contract were the reason for the Claimant's resignation. In looking at its conclusions, it is apparent that the ET focused on whether this was the only reason and - finding there were others that also operated on the Claimant's mind - considered that it was fatal if not.

1. That error alone would be sufficient to render the ET's conclusions on this question unsafe. Even if I am wrong about that, however, I also think the ET erred more generally in how it approached this question in this case. Appreciating Mr Rahman's observation (for the Respondent) that an ET's decision has to be viewed as a whole and one must be careful not to read errors of law merely from a failure to set out every point, I consider the starting point here required the ET to be clear as to when the Claimant resigned. That was not difficult as the parties were agreed that was on 14 February. That was not a resignation by means of words spoken in the heat of the moment, but a considered view, taken after the Claimant had left the office for some two hours and had returned to inform Ms Barlow that he considered Mr Mardel's conduct that morning to have been abusive and unacceptable and was resigning. When required to put that in writing, the Claimant did so, sending his simple one-line email, "I hereby resign". That being so, the next task was to determine what had led the Claimant to that point and whether that included the Respondent's repudiatory breach of contract? It was not necessarily irrelevant to look at what the Claimant did next - that might have been evidentially relevant in terms of any inference the ET was to draw - but it would need to be considered in that context. It is hard, for example, to see the Claimant's subsequent move to join his wife in the US would mean that the Respondent's conduct was not a reason for his resignation on 14 February: prior to that morning, the evidence was that he was planning to stay in the UK at least until his personal injury claim was determined in November 2014; something happened that day to change his mind. Equally, it is difficult to see why his case should be undermined by the fact that he did not immediately explain his reasons more fully; that would not prevent the Respondent's breaches of contract forming part of his reasoning on 14 February. As for whether he expected to be asked back and whether he would then have returned, that (i) did not prevent his resignation on 14 February being just that, a binding resignation; and (ii) would not prevent that being, at least in part, due to the Respondent's breach of contract.

1. I therefore agree with the Claimant on this aspect of the appeal: the ET's conclusion is unsafe. Further, on the ET's findings, I consider there was only one permissible conclusion: that the Claimant resigned in response to the Respondent's repudiatory breach.

1. That takes me to the Respondent's cross-appeal. I permitted this to proceed as it seemed that the ET had failed to engage with the question of waiver or acquiescence. Having now had the opportunity to understand the way the case developed and the ET's findings as a result, it seems to me that this in fact is not a question that can properly arise (and, to be fair, Mr Rahman's submissions recognised the difficulties he faced in this regard). The ET found the repudiation in this case arose from the cumulative effect of the various matters relied on; the last of which was Mr Mardel's conduct on 14 February. As the Claimant resigned immediately after that, there can be no real suggestion that he had waived the breach. Mr Rahman urged that I keep this matter open for the ET on remission, but I do not think that is really tenable given the way the ET found repudiatory breach in this case. I duly dismiss the cross-appeal and am bound to substitute my finding that the Claimant was indeed constructively dismissed. On my reading of the list of issues, as the Respondent had not sought to put forward an alternative case as to fairness, if the Claimant made good his claim of constructive dismissal that must also lead to the conclusion that the unfair dismissal case was made out.

1. The only issues for me to remit are, therefore, those I have identified on reasonable adjustments. Having heard from the parties as to the question of remission, and having due regard to the guidance laid down in Sinclair Roche & Temperley v Heard [2004] IRLR 763, it seems to me this is not a case where it can properly be said that the ET's decision was fundamentally flawed. There are a number of points where its decisions were never challenged, and the errors I have found are not such as to undermine my confidence in this ET. Moreover, I consider that it is better for the ET that has already made relevant findings relating to the PCP (as I have found) to approach the remaining questions under section 20 EqA. I also suspect that the facts of this case are such that the ET members will soon recall it after having reminded themselves from their notes. Whether they wish to hear further evidence will be a matter for the ET, after considering any representations from the parties in that regard. So far as remains practicable, therefore, I remit the section 20 issues to the same ET.