Overturning previous case law, the Employment Appeal Tribunal (EAT) has held in Driscoll v V & P Global Ltd and anor that constructive dismissal can constitute an act of harassment under the provisions of the Equality Act 2010.
Ms Driscoll worked for V & P Global Ltd, a legal recruitment consultancy, between 2 April and 29 July 2019, as an executive assistant/operations manager. She alleged that, on various occasions during that time, the CEO made comments which constituted harassment related to sex, race or disability, contrary to section 26 of the Equality Act; that she was victimised by the company after her employment had ended; and that it was in breach of its duty to provide written particulars of employment. As a result, she resigned and claimed constructive dismissal.
For its part, the company claimed that Ms Driscoll resigned for personal reasons and that the tribunal proceedings constituted an unreasonable and vexatious attempt to seek to intimidate and/or embarrass the CEO and to put the company to significant cost because the CEO had asked Ms Driscoll to repay overpaid holiday pay and salary.
Section 39 of the Equality Act 2010 states that an employer (A) must not discriminate against, or victimise, an employee (B) by (among other things) dismissing B or subjecting B to any other detriment. Section 39(7)(b) states that the reference to dismissing B includes a claim for constructive dismissal.
Section 40 of the Act states that an employer (A) must not, in relation to employment by A, harass a person (B) -
(a) who is an employee of A's
(b) who has applied to A for employment.
The tribunal held that it was bound by the decisions in Timothy James Consulting Ltd v Wilton and Urso v Department of Work and Pensions that a constructive dismissal could not amount to an act of harassment contrary to section 40 because it did not provide for harassment to include constructive dismissal. It therefore struck out her claim as having no reasonable prospect of success.
Ms Driscoll appealed, arguing (among other things) that Wilton and Urso should not be followed as they had not properly taken into account the relevant anti-discrimination EU directives. As these clearly treat harassment as a form of discrimination, the decision was inconsistent with them. Nor was this approach affected by Brexit, as section 5(2) of the European Union (Withdrawal) Act 2018 made clear that the principles underpinning the Equality Act must be interpreted to conform with EU law.
Allowing the appeal, the EAT held that the domestic provisions which define and proscribe harassment, now in the Equality Act, reflect the obligation first imposed by the Equal Treatment Directive. As the EU directives did not exclude constructive dismissal they must therefore be construed “purposively” (an approach that allows courts to interpret the law within the context of its overall purpose), a position unaffected by Brexit.
The EAT was further bolstered in its view by the decision in the domestic case of Meikle v Nottinghamshire County Council, which held that a constructive dismissal could amount to an act of disability discrimination.
As the decision in Wilton (that a constructive dismissal could not itself amount to an act of unlawful harassment within the meaning of section 40) had been decided without due regard to the relevant European directives and domestic case law, it was “manifestly wrong” and could not be followed. The provisions in the Equality Act must therefore be construed in such a way that constructive dismissal can amount to an act of harassment.
Accordingly, Ms Driscoll’s claim was reinstated and referred back to the tribunal to decide whether her dismissal constituted unwanted conduct and therefore an act of harassment.
This decision rights a wrong, and means that if a constructive dismissal is held to amount to an act of harassment, a claimant can claim compensation in addition to any injury to feelings.