Out of time discriminatory acts and 'last straw' constructive dismissals
Employment Matters e-update – May 2021
The Employment Tribunal has found that where a discriminatory act, which appears to have taken place well out with tribunal time limits for bringing a claim, forms part of a chain of events culminating in a ‘last straw’ constructive dismissal, a claim for discriminatory constructive dismissal may still be in time provided the discriminatory acts sufficiently influenced the overall repudiatory breach in response to which the employee ultimately resigned.
De Lacey v Wechseln t/a The Andrew Hill Salon
Ms De Lacey was a trainee hair stylist at The Andrew Hill Salon.
In May 2015 she informed her employer that she was pregnant. Ms De Lacey commenced a period of maternity leave in October 2015 and returned to work in August 2016.
In January 2017 she resigned and brought a claim of constructive unfair dismissal, along with claims of pregnancy, maternity and sex discrimination.
Ms De Lacey’s resignation came immediately after an incident during which she was required to clean up dog faeces in front of other trainees and was laughed at whilst doing so.
Ms De Lacey sought to rely on this incident as the ‘last straw’ leading to her dismissal. An employee can resign and consider themselves constructively dismissed if their employer has behaved in such a way as is calculated or likely to destroy or seriously damage the trust and confidence which an employee can expect from them. This behaviour can be in the form of one serious breach of the implied or express terms of the employment contract, or the ‘final straw’ in a series of less serious actions which cumulatively undermine an employee’s trust and confidence in their employer. The final straw may be a relatively minor act but it must contribute, however slightly, to the breach of the implied term of trust and confidence.
Ms De Lacey claimed that a series of events occurred between May and October 2015 and August 2016 to January 2017 following her return from maternity leave, which amounted to a course of discriminatory conduct and also when considered together, amounted to a repudiatory breach by her employer of the implied term of trust and confidence in her contract of employment.
Employment Tribunal decision
The Employment Tribunal (ET) considered that only two of events complained of could be considered discriminatory; those being Ms De Lacey’s failure of a practical exercise, and the cold way that the principal of the salon, Mr Hill, had behaved towards her after becoming aware of her pregnancy. Both of these incidents took place in May 2015.
Despite finding that the two complaints did amount to discriminatory acts, the ET dismissed the claim of discrimination, on the basis that the complaints were brought out of time. In reaching this conclusion, the Tribunal noted that Ms De Lacey had not established that there was a continuing course of discriminatory conduct extending until January 2017. According to the ET, this was the last date for the discrimination claim to be considered in time.
The Claimant’s unfair dismissal claim was successful however on the basis that that same series of events, when taken together, amounted to a breach by the salon of the implied term of trust and confidence.
Employment Appeal Tribunal decision
Ms De Lacey appealed to the Employment Appeal Tribunal (EAT) against the ET’s dismissal of the discrimination claim.
She argued that the ET had failed to properly consider that the two incidents in May 2015 were a material part of the repudiatory breach, and given the ET had found these incidents to be discriminatory, they should then have gone to determine whether the employer had an adequate, non-discriminatory, explanation of their actions. If there was legitimate justification, Ms De Lacey argued that the constructive dismissal should be considered discriminatory.
Ms De Lacey also argued that the ET had erred in considering that the claim of unlawful constructive dismissal on pregnancy grounds could not succeed unless the particular events in question (i.e. the May 2015 incidents) were in time for the purposes of free-standing discrimination claims either because they were part of a course of conduct extending over a period, or because it was just and equitable to extend time.
The EAT held that, in the circumstances before them, provided the earlier acts of discrimination ‘sufficiently influenced the overall repudiatory breach in response to which the employee resigned’, then it is irrelevant that those acts are themselves out of time for the purposes of any separate discrimination claim based solely on those incidents. Instead, the time limit starts to run from the date of the acceptance of the repudiatory breach, that being the date on which the employee resigned.
The EAT remitted the matter back to the ET to determine whether the discriminatory matters sufficiently influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory.
This case provides helpful guidance in relation to constructive dismissal claims where the employee alleges that the dismissal was discriminatory. In circumstances where there is a long-running chain of alleged events culminating in a resignation, the mere fact that the only events in that chain which appear to be discriminatory occurred some time before the resignation may not be enough to defeat the claimant’s discrimination claim. Provided the earlier event ‘sufficiently influenced the overall repudiatory breach in response to which the employee resigned’, time will run from the point of resignation rather than the point at which the events occurred.