The claimant was employed as an executive assistant from April 2019. She was only in the job for approximately 4 months when she resigned. The basis for the resignation was alleged harassment that she had faced based upon race, sex and disability. The claimant argued that the harassment led to her resigning and it was constructive dismissal.

The Tribunal, at first instance, stuck out the claim for constructive dismissal citing that the decision of Timothy James Consulting v Wilton had established that constructive dismissal could not amount to harassment. This was appealed to the EAT.   The basis for the decision in Timothy James Consulting was that Section 26 of the Equality Act 2010 dealing with harassment did not allow constructive dismissal to be taken into account (also examining Section 40 of the 2010 Act).  The difficulty with that decision was that there had been no examination of the EU Directives which underpinned the Equality Act. 

The EAT examined the EU Equal Treatment Directive, Equal Treatment Framework Directive and Race Directive.   It was clear in doing so that the directives proscribe harassment when it arises in relation to a dismissal. To this end, it would be improper to only examine dismissal in the context of one that had been instigated solely by the employer.  Instead, dismissal had to be given a wide interpretation as had been seen through the previous cases and as a result it would also have to cover constructive dismissal.

There was also reference to some domestic cases such as Meikle v Nottinghamshire CC  when it was held that constructive dismissal could be taken into account for the purposes of a discrimination claim.  Therefore, it was clear that the position in Timothy James Consulting was no longer sustainable.  Therefore, it was held by the EAT that constructive dismissal could be considered as a ‘dismissal’ within the EU directives to determine if there has been harassment.  Accordingly, the constructive dismissal claim would be allowed to continue and the case was remitted back to the ET.

Practical Lessons

This case demonstrates how the EU Directives have to be considered in the interpretation of domestic legislation.  It seemed odd that the domestic cases had allowed for a wide interpretation of dismissal which dates back to the 70s yet when it comes to the more recent statutory interventions dismissal was only given a narrow basis.  The interpretation in light of the EU directives allows for a more simplistic and streamlined picture with constructive dismissals being taken into account in determining whether there has been discrimination or harassment.  
https://assets.publishing.service.gov.uk/media/60f03553d3bf7f56896128d3/Ms_M_Driscoll__nee_Cobbing__v__1__V___P_Global_Ltd_2__Mr_F_Varela_EA-2020-000876-LA.pdf