Can constructive dismissal be an act of harassment under the Equality Act?

Can constructive dismissal be an act of harassment under the Equality Act?

Yes, held the Employment Appeal Tribunal (EAT) in Driscoll (née Cobbing) v V&P Global Ltd and anor.

Mrs Driscoll was employed by V&P Global Ltd as an executive assistant/operations manager. She commenced employment on 2 April 2019 and resigned less than 4 months later, on 29 July 2019.  

She brought several claims in the Employment Tribunal (ET), including harassment related to sex, race or disability and constructive dismissal as an act of unlawful harassment under section 26 of the Equality Act 2010 (EqA).

The ET, relying on the appellate decisions of Timothy James Consulting Ltd v Wilton [2015] and Urso v Department for Work & Pensions[2017], struck out her claim of constructive dismissal stating, “as a matter of law constructive dismissal could not amount to an act of harassment for the purpose of s.26 of the Equality Act 2010”. Mrs Driscoll appealed this decision.

The EAT, reviewing the applicable EU directives and the decision by the Court of Appeal in Meikle v Nottinghamshire County Council [2005], held that Wilton had not been correctly decided.  The Honorable Mrs Justice Ellenbogen DBE stated “as a matter of law, where an employee (as defined by the EqA) resigns in response to repudiatory conduct which constitutes or included unlawful harassment, his or her constructive dismissal is itself capable of constituting ‘unwanted conduct’… contrary to sections 26 and 40 of the EqA” (emphasis added). The claim was reinstated and referred to the ET to be determined.

You can read the full Judgment here.

This update was written by Jo Sinclair, Trainee Solicitor.