Understanding harassment in constructive dismissal: key insights from Driscoll (née Cobbing) v & P Global Ltd and another case

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 in employment. This decision was under the Equality Act 2010 (EAT).

What does the Driscoll v & P Global Ltd and another mean for employment law?

Ms Driscoll was employed as an executive assistant by V & P Global Ltd (the Company), a legal recruitment consultancy, from 2 April 2019. She resigned just under four months later. She claimed before an employment tribunal that she had been subjected to harassment. This harassment was related to sex, race or disability contrary to section 26 of the Equality Act 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. It held 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 Equality Act 2010.

Ms Driscoll appealed that decision to the Employment Appeal Tribunal (EAT).

The Law

Section 26 of the Equality Act 2010 sets out the definition of harassment. This is as follows:

A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic. This conduct must have 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 Equality Act 2010 deal with discrimination and harassment in the context of employment. This is as follows:

  • Section 39 provides that an employer must not discriminate against, or victimise, an employee by (among other things) dismissing the employee or subjecting the employee to any other detriment.
    Section 39(7)(b) provides that, in each case, the reference to dismissing the employee includes a reference to the termination of the employee’s employment. This includes an act of the employee, such as giving notice. These actions are in circumstances where the employee is entitled, due to the employer’s conduct, to terminate the employment without notice.
  • By contrast, section 40 provides that an employer must not harass a person in relation to employment by that employer. This applies to individuals who are either employees of the employer or have applied to the employer 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 Equality 2010. Its reasoning was based on the differences between section 39 and section 40 of the Equality Act 2010.

How can constructive dismissal amount to harassment under the Equality Act 2010?

The EAT allowed Ms Driscoll’s appeal. They ruled that the case of Wilton was inconsistent with both European law and domestic case law. As such, it was “manifestly wrong”. The EAT observed that the provisions in the Equality Act 2010 that define and proscribe harassment must be construed purposively. This is to ensure they 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 Equality Act 2010. There is no express limitation of the type of “unwanted conduct” which can and cannot constitute an act of harassment. The requirement is that the conduct is related to a relevant protected characteristic and it 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. It should be determined by the tribunal at the full merits hearing.

What are the implications of the EAT’s decision on future harassment claims?

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. This applied when 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. Additionally, this decision serves as an example. It shows circumstances where the EAT may depart from its own earlier decision, which it would ordinarily follow.

How can Moore Barlow help

Should you need legal advice with regards to constructive dismissal and harassment, contact one of our experienced employment lawyers today.