Ultimately this will depend on the specific facts of the case but it is important to remember from the outset that it is difficult to successfully make a claim for constructive dismissal.

Constructive dismissal occurs when an employer breaches an employee’s contract of employment in such a serious way that it makes it untenable for the employee to remain in work. Therefore, in order for there to be a constructive dismissal, the following factors must be satisfied:

• An actual or anticipatory breach of contract by the employer;
• The breach must be repudiatory i.e. it must be sufficiently serious to justify the employee’s resignation without notice;
• The employee must resign in response to the breach, not for some other unconnected reason; and
• The employee must not delay terminating the contract in response to the breach.

In relation to the above, essentially an employee would have to resign based upon the employer’s poor handling of the discriminatory comments. Although this will be case specific, the following factors may be relevant when considering whether an employee is justified in claiming constructive dismissal:

• Whether the employer had knowledge of the discriminatory comments made to the employee;
• Whether the employer has formal grievance and disciplinary procedures in place which required the employer to deal with the situation in a particular way;
• Whether the employee had raised a grievance about the discriminatory comments prior to resigning;
• If so, whether the employer followed the relevant procedures, for example, carried out an investigation into the alleged discriminatory comments; and
• Whether the employer imposed any disciplinary sanction on the work colleague as a result of making the discriminatory comments and, if so, whether the sanction was reasonable in all the circumstances.

It is important to remember that even when there has not been a breach of an express contractual term, there could still be a breach of the implied term of mutual trust and confidence. Further, an employee may resign for various reasons and provided one of the reasons is due to a repudiatory breach of contract, a constructive dismissal claim could still potentially be successful in a tribunal.