An employee who has been subject to continued harassment that is linked to a protected characteristic may decide to resign. The resignation may in turn give grounds for the additional claim that the employee has been constructively dismissed. However, could the claimant also rely on this being a further and separate act of unlawful harassment?
The decision in Timothy James Consulting Ltd v Wilton (2015) had suggested that the act of resignation could not amount to harassment under the Equality Act 2010 as this could not meet the definition in the statute of being ‘unwanted conduct’. But recently the Employment Appeal Tribunal (EAT) looked again at this issue in Ms M Driscoll (Née Cobbing) v 1) V & P Global Ltd 2) Mr F Varela and reached a different conclusion.
Ms Driscoll was employed by a legal recruitment consultancy as an executive assistant/ operations manager from 2 April 2019. She worked closely with Mr Varela, the founder and chief executive of the consultancy. She alleged that on various occasions he had shouted at her and made comments which constituted harassment related to sex, race or disability.
She resigned on 29 July 2019 because of the offensive environment she said had been caused by Varela’s racist and sexist comments. On her last day in the office, Driscoll had sent Varela an email with handover instructions for new starters due to join while she was going to be on annual leave. Varela had responded by shouting at her and accusing her of putting in the wrong dates. She believed the aggressive reaction was due to her sex and her previous objections to his conduct. This had been the last straw for her and she resigned the same day.
She subsequently brought various claims of discrimination, but the employment tribunal dismissed her claim of harassment that related to her constructive dismissal.
The EAT found that despite there being earlier authority that a constructive dismissal could not itself amount to an act of unlawful harassment under the Equality Act 2010, the claim should not have been struck out by the employment tribunal.
The view expressed in Wilton that a constructive dismissal could not amount to harassment was described as ‘manifestly wrong’. The decision had been made without proper reference to relevant case law and the provisions of the EU Directives that provided protection against discrimination.
It held that where an employee resigns in response to repudiatory conduct which includes unlawful harassment, his or her constructive dismissal is itself capable of constituting ‘unwanted conduct’ and, therefore, an act of harassment, which was within the scope of the Equality Act 2010.
Accordingly, Driscoll’s claim of harassment in the form of constructive dismissal was reinstated and remitted back for determination.
This decision clarifies that in assessing whether there has been ‘unwanted conduct’ on the grounds of a protected characteristic a broad approach should be taken. A resignation in response to the employer’s discriminatory conduct could also give grounds to bring a claim for harassment.
This may be important in practice as it could have an impact on compensation being awarded due to the availability of injury to feelings for acts of harassment. It could also impact on whether the claim of harassment has been presented to the Employment Tribunal in time.
As with most employment-related claims there is, subject to any extension while parties go through ACAS Early Conciliation, only three months to bring a claim in respect of discrimination or harassment. That time limit will run from the date of the act of harassment or, if there has been more than one act, the last of them. As the resignation may now be included as a further act of harassment it can give more time for a claim to be brought.
Stephen Hills is a partner and specialist employment lawyer at Gateley Plc