The claimant had been employed by the respondent as a trainee hair stylist.  She informed the respondent that she was pregnant in May 2015 and went on maternity leave in October 2015.  She subsequently returned to work in August 2016.  The claimant resigned in January 2017 and brought claims relating to pregnancy, maternity and sex discrimination and constructive dismissal.  She stated that it was a series of actions from May-October 2015 and from August 2016-January 2017.   She alleged that the final incident, where she was required to clean up dog faeces and was laughed at, was the ‘last straw’.

The Tribunal dismissed her claims of discrimination stating that she was only able to establish a prima facie case with two matters relating to a trade skills test in 2015 and the salon owner’s behaviour towards her once she told him she was pregnant.  The Tribunal did not go any further stating that these actions were outside of the time limit.   The claimant appealed this decision stating that the Tribunal failed to adequately deal with her claims citing that the constructive dismissal itself amounted to discrimination and that those matters establishing a prima facie case were part of the repudiatory breach of contract.  She argued that it was erroneous to put the burden of proof on her to explain why the two matters were not brought within time as they were, in fact, brought in time considering the constructive dismissal.

The EAT allowed the appeal.  On the constructive dismissal, it was held that a ‘last straw’ dismissal can amount to unlawful discrimination if some of the matters were acts of discrimination.   It did not require the ‘last straw’ itself to be a matter of discrimination. The issue will be whether the constructive dismissal was materially influenced by discriminatory conduct which led to there being a repudiatory breach.   The ‘last straw’ has significance as it is the point which tipped matters over the edge and time would then run from that date rather than the date of any preceding discriminatory acts. As a result, the Tribunal had erred in law as they had failed to consider whether the sex discrimination incidents applied for the purposes of discriminatory constructive dismissal. This could lead to the constructive dismissal itself being sex discrimination, yet this was not properly considered.  Accordingly, the case was remitted back to a fresh Tribunal to allow for a decision which would consider the discriminatory acts in light of constructive dismissal.

Practical Lessons

This case demonstrates how individual acts which may be discriminatory may still be timeous, even where taken solely they would be out of time.  This arises through the nature of ‘last straw’ constructive dismissal where the discriminatory acts may be part of the factors culminating in an overall repudiatory breach.   Therefore, respondents and Tribunals alike will have to be cognisant of this approach and that it even applies when the ‘final straw’ is not an issue of discrimination.  This can be seen as widening the ambit for allowing discrimination claims even where the individual incident would be out of time.
https://www.gov.uk/employment-appeal-tribunal-decisions/lauren-de-lacey-v-wechseln-ltd-ta-the-andrew-hill-salon-ukeat-slash-0038-slash-20-slash-vp-v