The EAT recently heard an appeal brought by a Claimant who had been successful in front of the ET in respect of her claim of constructive dismissal. Ms de Lacey had worked as a trainee hair stylist at the Respondent’s hair salon, and alleged that there had been a number of events which amounted to a repudiatory breach of contract. The ET accepted this and allowed her claim, however it did not consider whether the dismissal had itself been discriminatory.
The legislative background
The thrust of the appeal came down to Section 136 of the Equality Act 2010. This states that, where there has been a contravention of the act:
- If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
- But subsection (2) does not apply if A shows that A did not contravene the provision.
This essentially “reverses” the burden of proof, and means that if there is a prima facie case that a contravention exists, without any other application, then the court must hold that it does exist unless the Respondent can specifically show that it did not.
In this case, it was the Claimant’s case that the contravention was discrimination (specifically, pregnancy discrimination). There were four issues found to have been linked to the constructive dismissal. They were:
- The Respondent failing the Claimant on her trade test, and not giving her any feedback;
- The Respondent’s manager changing his attitude to her and his non-engagement towards her after her pregnancy announcement;
- The Claimant being demeaned and embarrassed by her manager; and
- The last straw, where the Claimant was made to clean up dog faeces.
Of these incidents, the first two were held to be prima facie discriminatory by the ET. As such, the Claimant submitted that the constructive dismissal itself was possibly discriminatory. This is because, as two of the elements leading to it were discriminatory, the ET should have considered s136 and whether the Respondent had discharged the burden of showing that the treatment was not, in fact, discriminatory (section 136(3)). If the Respondent had failed to discharge that burden, then the ET should have found that the constructive dismissal was discriminatory.
The first conclusion was that it did not matter that the last straw itself was not a discriminatory act, all that was required was that discriminatory conduct materially influenced the conduct that amounted to a repudiatory breach. Secondly, the time starts running from the date of the repudiatory breach, and therefore the first two incidents, although they would be out of time if they were standalone, should not be disregarded for the constructive dismissal case.
Finally, the EAT concluded that the Tribunal erred in law in failing to reach a concluded view on whether these incidents were sex discrimination for the purposes of the discriminatory constructive dismissal claim, and, if so, whether this meant that the constructive dismissal itself was unlawful sex discrimination.
The case was remitted to the ET to decide on this issue.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/0038_20_0104.html