Labour & European Law Review Weekly Issue 374 18 June 2014
To succeed in a claim of constructive dismissal, claimants have to prove there has been a fundamental breach of contract by their employer (among other things) but what if they have also been discriminated against? In Clements v Lloyds Bank and ors, the Employment Appeal Tribunal (EAT) held that although there had been age discrimination, the effective cause of the claimant’s dismissal was a breach of the implied term of trust and confidence.
Mr Clements, who was in his 50s, was head of Business Continuity at Lloyds. During a meeting with his manager Mr Shawcross in January 2012, he was criticised for a lack of progress in respect of a major project and for his response to challenges from Audit. Mr Shawcross suggested that Mr Clements move to a different role within the bank and allegedly referred to Mr Clements’ age on two occasions, pointing out that he wasn’t “25 anymore”.
Mr Clements brought a grievance which was unsuccessful and then resigned in July 2012 because he thought the bank wanted to replace him with someone younger. In fact the bank had had intended to appoint someone of a similar age whose role would include Business Continuity meaning that they might not need someone in Mr Clements’ role.
He claimed constructive unfair dismissal and age discrimination
Although Mr Shawcross denied making the remarks about Mr Clements’ age, the tribunal decided on the balance of probabilities that he had made them and that they were discriminatory. Although he said them in order to persuade Mr Clements to change his job role, the fact remained that they were made at least partly because of his age. To that extent, there had been age discrimination.
It also found that he had been constructively dismissed because, viewed as a whole, there was a cumulative course of treatment which amounted to a breach of the implied duty of trust and confidence.
However, although the remarks were discriminatory and Mr Clements had been constructively dismissed, it found that the comments did not play a part in the constructive dismissal. By the time Mr Clements decided to resign, the age-discriminatory remarks made on 5 January did not form a material contributing element of the cumulative treatment undermining trust and confidence which led to that decision.
The EAT rejected Mr Clements’ appeal. The tribunal had been careful not to find that the discriminatory words formed part of the breach of trust and confidence. Instead it found a breach in the course of action that the employer had adopted when trying to move Mr Clements out of his current role and appointing someone else to do his job.
The question for the tribunal was not whether there was a repudiatory breach (it had already found there was) but whether age discrimination was a cause of Mr Clements’ dismissal. It found that it was not. Although there was discrimination, far more had happened by the time Mr Clements resigned. The effective cause of his dismissal was the breach of contract. It was not also an act of discrimination.
The tribunal had been careful to consider whether the discrimination involved in telling the claimant he was no longer 25 had played any material part in the breach in response to which the claimant resigned. It did so by asking (appropriately) whether it had “tainted” the dismissal and concluded that it did not.
In reaching this finding the EAT have made it clear that the tribunal can and must distinguish the conduct that has caused the dismissal. In this case it was particularly important because it meant Mr Clements failed to establish his dismissal was discriminatory thus reducing his potential compensation to the statutory cap/one year’s salary (there is no cap on discrimination compensation).