The Employment Appeal Tribunal (EAT) has held Driscoll (née Cobbing) v & P Global Ltd and another that a Constructive dismissal can amount to an act of unlawful harassment under the Equality Act 2010 (EAT).
Ms Driscoll was employed as an executive assistant by V & P Global Ltd (“the Company”), a legal re-cruitment consultancy, from 2 April 2019. She resigned just under four months later, claiming before an employment tribunal that she had been subjected to harassment related to sex, race or disability contra-ry to section 26 of the Equality Act 2010 (“EqA 2010”). She alleged the harassment took the form of comments made during her employment, concluding in her constructive dismissal.
The tribunal struck out the constructive dismissal aspect of her harassment claim, holding that it was bound by Timothy James Consulting Ltd v Wilton to conclude that a constructive dismissal could not amount to an act of harassment under the EqA 2010.
Ms Driscoll appealed that decision to the Employment Appeal Tribunal (“EAT”).
The definition of harassment is set out in section 26 of the EqA 2010. This is as follows: –
A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:
- Violating B’s dignity, or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Sections 39 and 40 of the EqA 2010 deal with discrimination and harassment in the context of employment. This is as follows: –
- Section 39 provides that an employer (A) must not discriminate against, or victimise, an employee (B) by (among other things) dismissing B or subjecting B to any other detriment. Section 39(7)(b) provides that, in each case, the reference to dismissing B includes a reference to: “the termination of B’s employment … by an act of B’s (including giving notice) in circumstances such that B is enti-tled, because of A’s conduct, to terminate the employment without notice.” This refers to a constructive dismissal.
- By contrast, section 40 provides that an employer (A) must not, in relation to employment by A, harass a person (B), who is an employee of A’s or who has applied to A for employment. It does not refer to a constructive dismissal situation.
In Timothy James Consulting Ltd v Wilton, the EAT found that a constructive dismissal could not amount to harassment for the purposes of the EqA 2010. Its reasoning was based on the differences between section 39 and section 40 of the EqA 2010.
EAT (Employment Appeal Tribunal) decision
The EAT allowed Ms Driscoll’s appeal. They ruled that the case of Wilton was inconsistent with both European law and domestic case law and as such was “manifestly wrong”. The EAT observed that the provisions in the EqA 2010 that define and proscribe harassment must be construed purposively, to conform with all relevant EU directives.
They held Wilton was not correctly decided, insofar as it determined that a constructive dismissal cannot amount to an act of unlawful harassment. Accordingly, where an employee resigns in response to repudiatory conduct which constitutes or includes unlawful harassment, the constructive dismissal is itself capable of constituting “unwanted conduct” for the purpose of section 26 of the EqA 2010; there is no express limitation of the type of “unwanted conduct” which can and cannot constitute an act of harassment, as long as that conduct is related to a relevant protected characteristic and has the purpose or effect stipulated by section 26(1)(b).
The EAT held that the claim of harassment in the form of constructive dismissal should be reinstated and determined by the tribunal at the full merits hearing.
Before the statutory definition of harassment was added into the discrimination legislation in 2005, it was possible to bring a constructive dismissal claim based on harassment, where the harassment amounted to direct discrimination or victimisation.
This decision therefore corrects an anomaly in the discrimination legislation which had introduced a distinction between harassment and other forms of discrimination. This decision is also an example of the circumstances where the EAT may depart from its own earlier decision, which it would ordinari-ly follow.
Should you need legal advice with regards to constructive dismissal and harassment, or maybe your workplace policy needs updating, contact one of our experienced employment lawyers today.