Constructive dismissal after sexual comments ‘can constitute harassment’

The Employment Appeal Tribunal has ruled that a constructive dismissal following unwanted sexual comments could amount to an act of harassment within the meaning of the Equality Act 2010 (the Act).

Joanne Stronach Head of Employment and HR reports on this recent case.

The case involved a woman who resigned after alleging that her employer had made comments that constituted harassment related to sex, race or disability.

The Employment Tribunal struck out her claim of harassment as having no reasonable prospect of success because, as a matter of law, a constructive dismissal could not amount to an act of harassment under the Act.

The Employment Appeal Tribunal rejected that interpretation after reviewing the relevant domestic case law, EU directives and the provisions of the 2010 Act.

It noted that, when considering similar cases, the Court of Appeal saw no principled basis for distinguishing between different types of dismissal when considering a discrimination claim. Various EU directives expressly encompassed harassment within its definition of discrimination and applied it in relation to dismissals.

Furthermore, the European Court of Justice had long held that the term “dismissal” was to be widely construed. There was no principled basis on which the word “dismissal” in the directives should be taken to exclude constructive dismissal.

To conform with the obligations imposed by the directives, the Act had to be construed to proscribe harassment in the form of dismissal, including constructive dismissal.

The Act provided for no express limitation of the type of unwanted conduct that could constitute an act of harassment, as long as the conduct was related to a relevant protected characteristic.

Where an employee resigned in response to conduct that constituted or included unlawful harassment, their constructive dismissal was itself capable of constituting unwanted conduct and hence, an act of harassment contrary to the Act.

Whether it did so in this case was for the tribunal to determine. The employee’s claim of harassment in the form of constructive dismissal was reinstated.

If you would like more information about the issues raised in this article or any aspect of employment law please contact Joanne on 01228 516666 or click here to send her an email.