Disabled employee wins claim over 'forced evening work'

A disabled employee has won a constructive dismissal claim after his employer ‘forced’ him to work evenings.

The employee joined the firm in October 2011. He regularly worked 12 to 14-hour days that stretched well into the evening.

In July 2012 he was involved in an accident that resulted in him developing issues such as dizziness, fatigue, headaches and difficulty concentrating.

He worked reduced hours when he returned from recuperating, but after six months his working day start increasing again until 6.30 to 7pm.

When he initially agreed to work late, his employer expected that he would continue to do so indefinitely.

However, after four months he objected to working into the evening. This led to a heated exchange between the employee and one of the owners of the business.

The owner berated him in front of his colleagues and demanded an apology. He also said that if he didn’t like it he could leave.

The employee resigned due to the owner’s conduct and because he was being ‘forced’ to work evenings.

He brought proceedings for disability discrimination and constructive dismissal. He told the Employment Tribunal that he would have retracted his resignation if he had been asked to do so.

The company claimed the employee would have resigned from his job even anyway as his wife had accepted a job in the US.

The tribunal ruled that this was why he had resigned rather than the argument with the owner over evening hours. It also said that the employee had not been ‘required’ to work evening hours; just that it was ‘expected’ of him.

However, the Employment Appeal Tribunal (EAT) overturned those decisions. It said that the tribunal had displayed a narrow view of the circumstances.

It held that the employee resigned in response to a fundamental breach of his employment contract.

The Court of Appeal upheld the EAT ruling.

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