The Employment Appeal Tribunal (EAT) has held in Driscoll (née Cobbing) v V&P Global Ltd and anor that a constructive dismissal can constitute an act of unlawful harassment under the Equality Act 2010 (the Act).
The Act had to be construed in accordance with the relevant EU Directives, each of which proscribe harassment in relation to dismissals. Applying the ECJ's wide interpretation of "dismissal", the EAT could see no principled basis to exclude constructive dismissal for the purpose of unlawful harassment.
The claimant was employed as an executive assistant by VPG Ltd, a legal recruitment consultancy, from 2 April 2019. She resigned just under four months later, and brought an employment tribunal claim that she had been subjected to harassment related to sex, race or disability. She alleged that the harassment took the form of comments made during her employment, culminating in her constructive dismissal. The tribunal struck out the constructive dismissal aspect of her harassment claim on the basis that a constructive dismissal could not amount to an act of harassment.
The EAT held that the provisions in the Act that define and proscribe harassment must be construed purposively to conform with all relevant Directives. In doing so it diverged from the decision of the EAT in Timothy James Consulting Ltd v Wilton, where no reference had been made to any EU Directive and it had simply been held that harassment in the context of employment did not include a constructive dismissal. The EAT in Driscoll held that there was no difficulty in interpreting the Act so as to proscribe harassment in the form of dismissal, including constructive dismissal. There is no express limitation of the type of "unwanted conduct" which can and cannot constitute an act of harassment, and the EAT held that the claim of harassment in the form of constructive dismissal should be reinstated and determined by the tribunal.
Take note: The decision in Driscoll confirms that it is possible to bring a constructive dismissal claim based on harassment. It's also worth noting that, although the EAT will ordinarily follow its own earlier decisions, it is possible to depart from them in certain circumstances.
