Nixon v Ross Coates Solicitiors & Anor

An employer’s failure to control pregnancy-related gossip may constitute unwanted conduct amounting to harassment and sex or pregnancy discrimination. A refusal to accommodate an employee away from the source of the gossip, and withholding pay in the same context, may also be related to pregnancy and sex.

Constructive dismissal is determined objectively by asking whether the employer committed a fundamental breach of contract. The range of reasonable responses is relevant to statutory fairness, not to whether the breach occurred. Reductions to unfair dismissal compensation must be based on culpable conduct occurring before dismissal and causally related to it. Post-dismissal conduct cannot justify such reductions.

The claimant appealed against an Employment Tribunal judgment which upheld her constructive unfair dismissal claim and an unlawful deduction from wages claim, but dismissed her claims of sex discrimination, pregnancy discrimination and harassment. The Tribunal reduced both the basic and compensatory awards by 90 per cent for contributory conduct, including conduct surrounding the proceedings.

The respondents cross-appealed the constructive dismissal finding. The appeal concerned apparent bias and factual errors, whether pregnancy-related gossip and the refusal of work at another office were discriminatory, the constructive dismissal test, and the proper approach to compensation.

1. Apparent bias. Applying the fair-minded and informed observer test in Porter v Magill, the Tribunal’s errors of fact and unusual procedural steps did not establish apparent bias. The allegation was hopeless, although the Tribunal was criticised for seeing an unsolicited settlement offer before judgment.
2. Discrimination and harassment. Gossip concerning the paternity of the claimant’s pregnancy was connected with pregnancy and constituted a course of unwanted conduct. The Tribunal erred in law in rejecting the harassment claim. The refusal to permit work at Kesgrave was also related to pregnancy and sex because it arose from the pregnancy-related gossip. The related failure to pay wages fell into the same category.
3. Constructive dismissal. The Tribunal correctly applied the objective approach endorsed in Bournemouth University Higher Education Corporation v Buckland. The employer’s failure to deal with the grievance while insisting that the claimant return to the office where she felt unable to work breached the implied term of trust and confidence.
4. Compensation. A reduction in the basic award may reflect culpable conduct before dismissal. A reduction in the compensatory award requires conduct which caused or contributed to the dismissal. The relevant cut-off was 15 March 2008, when the claimant accepted the repudiation. The Tribunal wrongly relied on conduct during and after the proceedings and wrongly treated its general just-and-equitable jurisdiction as permitting a reduction unrelated to loss.
5. Disposal. The appeal was allowed in part and the cross-appeal dismissed. The case was remitted to the same Employment Tribunal to determine compensation for the three discrimination detriments and the unfair dismissal, including any proper reductions to the basic and compensatory awards.

• Employment Appeal Tribunal: allowed the claimant’s appeal in part, dismissed the respondents’ cross-appeal, and remitted the case to the same Employment Tribunal.
• Employment Tribunal: upheld constructive unfair dismissal and unlawful deduction of wages, dismissed the discrimination and harassment claims, and reduced the basic and compensatory awards by 90 per cent. Reasons were registered on 8 December 2009.