The EAT has held that a constructive dismissal can constitute an act of discriminatory harassment. This is a departure from previous case law.

The facts

Ms Driscoll was employed as an executive assistant by V & P Global Ltd, a legal recruitment consultancy. She resigned about four months into her employment, alleging that this was because the founder and chief executive of the company (a named Respondent) had made comments which amounted to harassment on the grounds of sex, race or disability. V & P Global argued that she had resigned for personal reasons and that all of her claims had been brought as an unreasonable and vexatious attempt to seek to intimidate and/or embarrass the CEO and to put V & P Global to significant cost, as a direct response to its request that she repay overpaid holiday pay and salary. Ms Driscoll made a discrimination claim to the employment tribunal - that she had been subjected to harassment related to sex, race or disability contrary to section 26 of the Equality Act 2010. That harassment, she alleged, took the form of comments made during her employment, culminating in her constructive dismissal. She could not make a claim for unfair dismissal based on the constructive dismissal as she had less than 2 years’ service.

An employment tribunal struck out the constructive dismissal aspect of her harassment claim on the basis of a previous EAT decision (Timothy James Consulting Ltd v Wilton (2015)) which held that a constructive dismissal could not amount to an act of harassment under the

Equality Act 2010.

Ms Driscoll appealed to the EAT, which allowed her appeal. The EAT held that Timothy James Consulting Ltd v Wilton was inconsistent with both European and domestic law and was therefore “manifestly wrong”. They noted that the EU directives prohibit harassment in relation to dismissals, and the European Court of Justice has taken a wide interpretation of what constitutes a dismissal, including voluntary redundancy schemes and retirement policies, so there was no reason to exclude constructive dismissal. The EAT also noted that the Court of Appeal has held that a constructive dismissal could amount to a discriminatory act for the purpose of a disability discrimination claim. It was clear from that decision that the Court of Appeal saw no principled basis for distinguishing between the different types of dismissal when considering a claim of discrimination; stating that whether there is a discriminatory dismissal cannot depend on whether an employer says to an employee ‘get out’ or alternatively drives the employee out. In light of this, the EAT held that the claim of harassment in the form of constructive dismissal should be determined at a full merits hearing.

What does this mean for employers?

It is now clear that where an employee resigns in response to discriminatory harassment, the constructive dismissal itself is capable of constituting “unwanted conduct” amounting to an act of harassment. As such, employees do not need 2 years’ service to bring a claim when alleging that the harassment caused them to resign. This case also means that where a constructive dismissal claim is brought as an harassment claim, an employee could be awarded uncapped compensation.

Ms M Driscoll (Nèe Cobbing) v 1) V & P Global Ltd 2) Mr F Varela: EA-2020-000876-LA