The Claimant was a long standing dental nurse working for the Respondent dental practice and was employed at the time of the pandemic. At this time she was working 2 days a week. After a period of being furloughed, the Respondent expected her to come back to work for her usual 2 days a week. The Claimant was concerned about her elderly father and wished to return to work a few weeks later, needing the time to sort out his care, and then go down to 1 day a week. The Respondent refused to agree to these terms and the Claimant resigned. She won her claims of constructive unfair dismissal and direct associative disability discrimination and the Respondent appealed.

The EAT allowed the appeal. By failing to afford the parties the opportunity to address its hypothetical comparisons (in evidence or submissions), the ET had adopted an unfair procedure. The comparators thus constructed were also flawed as they failed to provide a like-for-like comparison for the purposes of section 23 Equality Act 2010 and, in the case of the second case, relied on a comparison with an individual sharing the same protected characteristic as the claimant. Moreover, given its finding as to the respondent’s reason for refusing section 57A leave, it was perverse of the ET to conclude that this was because of the claimant’s father’s disability. That conclusion was also perverse given the ET’s further finding that one of the respondent’s partners would have treated any carer of an aged parent (regardless of disability) in the same way.