The Employment Appeal Tribunal (EAT) has considered whether a constructive dismissal can constitute an act of harassment under the Equality Act 2010.

Driscoll (nee Cobbing) v V & P Global and another, UKEAT/000876/20

Facts

The claimant resigned from her job as an executive assistant after less than four months of employment, claiming that she had been subjected to harassment related to sex, race or disability. She alleged that comments made to her during her employment resulted in her constructive dismissal.

An employment tribunal struck out the constructive dismissal aspect of her claim, on the basis that in a previous decision (Timothy James Consulting Ltd v Wilton) the EAT held that a constructive dismissal could not amount to an act of harassment under the Equality Act 2010. The claimant appealed to the EAT.

EAT decision

The EAT has upheld the appeal, finding that its previous decision in the Wilton case was inconsistent with both European and domestic case law, and therefore “manifestly wrong”. The relevant EU directives prohibit harassment in relation to dismissals and previous case law has broadly construed the meaning of ‘dismissals’, meaning there was no basis on which constructive dismissal should be excluded.

It was therefore satisfied that the previous decision in Wilton was not correct in the finding that a dismissal could not amount to an act of unlawful harassment. A resignation in response to repudiatory conduct which amounts to unlawful harassment can therefore constitute ‘unwanted conduct’ for the purposes of the harassment provisions in the Equality Act 2010.

The case was remitted to be reheard by the tribunal, to decide whether the harassment claim should be upheld.

Consequences

This decision means that employees without the two years of service required to claim unfair dismissal can still bring a claim based on their treatment, if the harassment has caused them to resign. Unlike a claim under the Employment Rights Act 1996, compensation awarded in respect of a harassment claim is unlimited.

The EAT in this case has in fact re-established the position that existed before ‘harassment’ was separately defined in the discrimination legislation prior to 2005. It had previously been possible to bring a constructive discrimination claim based on harassment, if the harassment could be regarded as direct discrimination or victimisation. Once the legislation was amended to include harassment as a stand-alone form of discrimination, the position was unclear.