Old issues can influence new decisions that cause a resignation – jumping claim time limits to create a ‘catch-all’ claim
In the recent case of De Lacey v Wechseln Ltd t/a The Andrew Hill Salon, the Employment Appeal Tribunal (EAT) have held that a constructive dismissal may be discriminatory, even if the discriminatory action occurred some time ago.
What is constructive dismissal?
Constructive dismissal is when an employee resigns following an act by the employer that amounts to a fundamental breach of contract. Often it is considered that the fundamental breach of contract is the employer doing something that breaks the mutual obligation of trust and confidence that an employee and employer have. When a series of events leads to resignation, an employee can rely upon the ‘last straw’ principle i.e. that there was one final act/omission where they felt they no longer could remain in employment.
Background to this case
In this particular case, the employee had informed her employer she was pregnant and had taken a period of maternity leave and as a result, she alleged she was subject to discriminatory conduct. This led to a ‘last straw’ event (the employee was asked to pick up dog faeces in front of everyone) and the employee resigned and claimed for pregnancy, maternity and sex discrimination along with unfair and constructive dismissal.
The decision in the EAT was that even though the ‘last straw’ act may not amount to discrimination alone, the discriminatory acts “materially influenced” the conduct that led to the ‘last straw’ act. Therefore, making it a discriminatory constructive dismissal.
An employee has three months to bring a claim for discrimination from the last act of discrimination. However, even if a claim for discrimination is out of time, the discriminatory conduct can be considered to decide whether it influenced the ‘last straw’ act. This means a claim may be brought later than an employer realises. Employers will need to consider carefully any previous problems at work leading up to the event that the employee claims led them to resign, even if those previous issues seem to be outside normal claim time limits. In such a case, the Employment Tribunal will be focusing on how the final act/omission by the employer (triggering the resignation) was influenced by previous problems at work or whether it is an entirely separate issue.
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