Discrimination: A constructive dismissal may be discriminatory even where the last straw is not discriminatory

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Discrimination: A constructive dismissal may be discriminatory even where the last straw is not discriminatory

Published 10 June 2021

The EAT has held that if discriminatory acts play a sufficient part in the overall course of conduct a constructive dismissal may be discriminatory. This may be the case despite  the “last straw”  triggering the dismissal  not being a discriminatory act.

The facts

Ms De Lacey was a trainee hairdresser. She claimed that the Salon had engaged in a course of discriminatory conduct, beginning when she told the Salon that she was pregnant in May 2015, continuing on her return from maternity leave, and ending when she resigned nearly two years later in January 2017. This alleged course of conduct included two incidents in 2015 - failing her in a test of her hairdressing skills, and the cold way that the principal of the Salon treated her after he became aware of her pregnancy. She argued this course of conduct culminated in the “last straw” incident, which caused her to resign, when in January 2017 she was asked to clear up dog faeces in front of other trainees and was laughed at by her managers.

Ms De Lacey brought claims of pregnancy, maternity and sex discrimination and also made claims of constructive unfair dismissal arising from discrimination.

The employment tribunal found that Ms De Lacey had been unfairly constructively dismissed. It also found that the treatment of Ms De Lacey in relation to the hairdressing test and being treated coldly were potentially acts of discrimination. However, the tribunal considered that she was out of time to bring a discrimination claim in respect of these two incidents, and it did not go on to make a finding as to whether they constituted discrimination. The tribunal did not consider the “last straw” incident to be discriminatory.

Ms De Lacey appealed to the EAT, which upheld her appeal, holding that the fact that the last straw was not itself discriminatory did not automatically mean that the constructive dismissal was not discriminatory. A constructive dismissal may be discriminatory where there is a range of matters, some of which are discriminatory and some of which are not, even if the incident that triggers the claim is not in itself discriminatory. The question will be whether or not the discriminatory matters sufficiently influenced the constructive dismissal so as to render the constructive dismissal itself discriminatory.

The EAT remitted the case back to the employment tribunal to decide whether or not the 2015 acts were discriminatory and, if so whether they sufficiently influenced the constructive dismissal. If so, the constructive dismissal would be discriminatory and the discrimination claim would not be out of time. The EAT explained that time runs from the date of acceptance of the repudiatory breach and not from the dates of discriminatory acts where they are earlier.

What does this mean for employers?

This case confirms that there may be cases where a constructive dismissal is discriminatory, despite the “last straw” event not being discriminatory. This is not altogether surprising because case law has already established that a last straw need not in itself be a breach of contract but something that causes the employee to decide they have had enough of the course of events they have been subjected to. The case also shows how historic acts of discrimination may resurface in constructive dismissal claims, even where taken alone the discriminatory acts would be out of time.

Lauren De Lacey v Wechseln Limited t/a the Andrew Hill Salon

Authors

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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