Constructive dismissal can constitute harassment under the Equality Act 2010.  This case clarifies the law in this area and confirms that previous case law on this issue was incorrectly decided. 

(Driscoll (née Cobbing) v V&P Global Ltd and anor (EAT))

BACKGROUND

The Claimant was an executive assistant for a legal recruitment consultancy who resigned and claimed constructive dismissal after four months citing harassment on the grounds of her sex, race and disability in the form of comments made to her.  The Tribunal struck out the constructive dismissal element of her claim on the basis of the EAT decision in Timothy James Consulting Ltd v Wilton (2015) which relied on the fact that the act of constructive dismissal (i.e. the employee resigning) could not constitute unwanted conduct by the employer and so did not fall within the meaning of harassment under the Equality Act 2010.  This meant that prior to this case, "actual" dismissal could constitute harassment but constructive dismissal did not.

DECISION

So why was Wilton wrong?  The EAT in that case failed to refer to any relevant EU Directives.  The Equality Act 2010 must be construed in accordance with the relevant EU Directives which prohibit harassment in relation to dismissals.  Therefore, the provisions of the Equality Act 2010 relating to harassment must be interpreted to conform with that premise.  Furthermore, the ECJ has long held the view that the term "dismissal" should be widely construed in case law which led the EAT to consider that there was no reason to exclude constructive dismissal from the scope of the relevant EU Directives.  The EAT also considered domestic case law.  The Court of Appeal in a separate case held that constructive dismissal could amount to a discriminatory act and saw no reason to distinguish between the different types of dismissal when considering a discrimination claim (albeit not harassment).  The EAT concluded that Wilton was incorrectly decided and the Equality Act 2010 must be interpreted to include harassment in the form of dismissal including constructive dismissal.

IMPLICATIONS

This case provides helpful clarification on constructive dismissal and harassment and rectifies case law on the issue.  On a practical level:

• This clarification could affect time limitations for bringing a claim, extending the time limit to run from the date of the constructive dismissal rather than a previous act of harassment which led to the employee resigning and claiming constructive dismissal.
• It will also be relevant to the remedy sought.  If the dismissal itself is an act of harassment, then in addition to compensation for injury to feelings any loss flowing from the dismissal would also need to be compensated.