N Moustache v Chelsea and Westminster NHS Foundation Trust
[2022] EAT 204
Z v Y
26 April 2024
[2024] EAT 63
Employment Appeal Tribunal
The employee claimed their employer discriminated against them, leading to their resignation (constructive dismissal). The first court missed this important claim, focusing on other details. The appeals court corrected this mistake, saying the court must consider all claims fairly. The case now returns to the first court to finish deciding if the employee was wrongly dismissed and to decide on compensation.
Key Facts
- •Claimant (Z) brought claims for unfair dismissal and disability discrimination against respondent (Y), a county council.
- •Claim included discriminatory constructive dismissal, alleging resignation was a final act of discrimination.
- •Employment Tribunal (ET) initially found constructive unfair dismissal but dismissed disability discrimination claims as out of time.
- •EAT remitted the case to the ET to determine whether claimant waived the breach of contract and whether there were continuing acts of discrimination.
- •On remission, the ET found constructive unfair dismissal but again dismissed discrimination claims, stating discriminatory constructive dismissal wasn't an issue.
- •Claimant appealed to the EAT again.
Legal Principles
An ET should not slavishly follow a list of issues if it impairs its duty to hear and determine the case according to law and evidence.
Parekh v Brent London Borough Council [2012] EWCA Civ 1630
Where facts could support a legal claim, the ET has a duty to ensure a litigant in person understands the claim, and if the claim isn't pursued, the ET should be sure it's a knowing withdrawal.
Mervyn v BW Controls Ltd [2020] EWCA Civ 393; Laing J in Mervyn [2019] UKEAT/0140/18
A constructive dismissal can be a cause of action under the Equality Act 2010, even if the 'last straw' isn't discriminatory; discriminatory conduct materially influencing the repudiatory breach suffices.
Section 39(2)(c) and (7)(b) Equality Act 2010; Williams v Governing Body of Alderman Davies Church in Wales Primary School [2020] IRLR 589
In discriminatory constructive dismissal, time runs from the acceptance of the repudiatory breach, not earlier discriminatory events; a claim may be in time even if the discriminatory events are out of time.
Nottinghamshire County Council v Meikle [2004] EWCA Civ 859; Lauren de Lacey v Wechseln Ltd [UKEAT/0038/20]
Failure to make reasonable adjustments is treated as occurring when the decision not to adjust was made, either when an inconsistent act was done or when it was reasonably expected to comply.
Section 123(3)(b), (4) Equality Act 2010; Fernandes v Department for Work and Pensions EA-2022-000277
Outcomes
Appeal allowed.
The ET erred in failing to determine the claim of discriminatory constructive dismissal, which was part of the pleaded case. The list of issues didn't replace the pleaded claim.
Claim of discriminatory constructive dismissal upheld.
Based on the ET's findings, the claim was in time and the only possible conclusion was to uphold it.
Remitted to the ET.
To determine if the earlier acts of discrimination were part of a continuing act and to determine remedy.
Remitted to the original ET.
Despite the claimant's loss of confidence, the original ET is better placed to determine the remitted issues, given its existing findings of fact and assessments of loss.