EAT: Ellenbogen J UKEAT/0009/21/LA, UKEAT/0010/21/LA, 15 July 2021
In this case the EAT ruled that an employment tribunal had erred in deciding that an act of constructive dismissal could not amount to harassment for the purposes of s26 of the Equality Act 2010. The EAT ruled that the EAT in Timothy James Consulting Ltd v Wilton  IRLR 368, which the tribunal below had required itself as obliged to follow, had been decided per incuriam European Directives and domestic caselaw, in the light of which it was “manifestly wrong”. So too was obiter dicta in Urso v Department of Work and Pensions UKEAT/0045/16/DA,  IRLR 304, EAT upon which the tribunal had also relied. Ellenbogen J relied on the decisions of the Court of Appeal in Meikle v Nottinghamshire County Council  EWCA Civ 859  ICR 1 in which, as she pointed out at §61, “Keene LJ saw no principled basis for distinguishing between the different types of dismissal when considering a claim of discrimination” and that, in view of the short limitation periods applicable in discrimination claims “there could be great significance attaching to whether the act is the dismissal, with time running from the termination of employment by resignation, or the employer’s earlier discriminatory act”. At §62 the Judge accepted that “both such considerations would have been of relevance to the issue with which Singh J was concerned, in Wilton. They would also have been of significance to Supperstone J’s conclusions in Urso, to the effect that Wilton had been correctly decided, but that there was a principled distinction to be drawn between constructive and ‘actual’ dismissal. Nevertheless, neither constitution of the EAT was referred to Meikle, such that both decisions were made per incuriam that authority”. The Judge also relied on the EU Recast, Framework and Race Directives which defined harassment as discrimination and prohibit discrimination in employment and working conditions, including dismissals (§68), and on the obligation of purposive interpretation which, as she pointed out at §70, was “by operation of s5(2) of the European Union (Withdrawal) Act 2018 … unaffected by Brexit.
Claimant: Jeremy Lewis, instructed by Branch Austin LLP London
Respondent: Mark Greaves, instructed by Kingsley Napley LLP
post modified 15 January 2022