Constructive dismissal and harassment
Driscoll v V&P Global Ltd
Departing from previous authority, the EAT has held that a constructive dismissal can amount to harassment under the Equality Act.
Ms Driscoll resigned after four months working for V&P. She claimed at tribunal that comments made by her employer’s CEO amounted to harassment related to sex, race or disability and that this resulted in her leaving and that her constructive dismissal was in itself an act of harassment. The employer said she left for personal reasons. The tribunal struck out her claim on the basis that constructive dismissal could not amount to an act of harassment because previous EAT case law (Timothy James Consulting v Wilton) had held that such a claim cannot be made under s. 26 of the Equality Act 2010. Ms Driscoll appealed.
The appeal was allowed.
The reason for Ms Driscoll’s success lay in the EAT’s analysis of European law. She argued that the EAT in Wilton had failed to take account of the relevant EU directives and, had it done so, would have come to a different conclusion. The directives, Ms Driscoll argued, see harassment as a species of discrimination and expressly include dismissal as a detriment to which their protection applies. In addition, EU case law urges a broad construction of ‘dismissal’.
The EAT observed that indeed the Equality Act provisions relating to harassment must be construed to conform with EU law – a position unaffected by Brexit. Because therefore the EAT in Wilton hadn’t considered the relevant EU law, its decision was wrong. There was, held the EAT, no principled basis to exclude constructive dismissal from the scope of the applicable EU directives. It also drew support for its view from a Court of Appeal case which held that constructive dismissal could amount to a discriminatory act for the purposes of a disability claim. The EAT commented that that Court of Appeal saw no principled basis for distinguishing between different types of dismissal when considering a discrimination claim.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/000876_20_1507.html
Ms Driscoll always had a stand-alone claim of harassment in relation to the comments made, but without any other loss, the remedy is injury to feelings. If the dismissal itself is an act of harassment, then any losses flowing from this would also have to be compensated.