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 but the EAT allowed his appeal (read the judgment here. The Respondent appealed to the Court of Appeal, the principal submission being that the ET had made a factual finding that the Claimant did not resign in response to the repudiatory breach and that that was a factual decision which must be respected.

The Court of Appeal dismissed the appeal. The ET's finding was not based on an explicit finding of primary fact about what motivated the Claimant to resign when he did, still less on an explicit rejection, on the basis of his credibility, of evidence given by him about his motivation. Instead it was based on the two reasons which it gave and which the Court found to be flawed, on essentially the same basis as the EAT did.