McLeary v One Housing Group Ltd

Where a lay employee pleads that disability discrimination contributed to the fundamental breach which caused resignation, the pleading may include a complaint of discriminatory constructive dismissal under section 39 of the Equality Act 2010, even without express reference to that section. If the position is unclear but apparent from the substance of the claim, the Employment Tribunal should seek clarification without taking the claimant’s side.

A tribunal must also address a properly raised contention that alleged acts form conduct extending over a period under section 123(3)(a). A discriminatory constructive dismissal may be the final act in that alleged continuing conduct. These issues may require determination with the merits rather than as isolated time-bar questions.

The claimant, a disabled support worker, resigned on 30 June 2016 after pursuing a grievance and internal appeal. She brought claims for constructive unfair dismissal and disability discrimination. At a preliminary hearing, the Employment Tribunal held that all Equality Act complaints relating to conduct during employment were out of time and declined to extend time. The constructive unfair dismissal claim remained in time.

The claimant appealed. She contended that her pleadings included discriminatory constructive dismissal under section 39 of the Equality Act 2010, and that the alleged discriminatory acts formed conduct extending over a period for the purposes of section 123(3)(a).

1. Appeal allowed and remitted. The Employment Tribunal erred in dismissing all Equality Act complaints on limitation grounds without addressing a complaint of discriminatory constructive dismissal and the associated continuing-conduct case.

2. On a fair reading, the claimant’s particulars asserted that alleged discrimination arising from disability, failures to make reasonable adjustments and victimisation contributed to the fundamental breach of trust and confidence which caused her resignation. Those facts were sufficient to include a complaint of constructive dismissal contrary to section 39 of the Equality Act 2010. It was unnecessary for a lay claimant expressly to cite section 39. Such a complaint could encompass those forms of discrimination, but not harassment, because section 40 does not create an equivalent constructive-dismissal cause of action.

3. Alternatively, the claim documents made the point sufficiently apparent that the Tribunal should have sought clarification at case management or before determining time. Seeking clarification of an overlapping claim was not the impermissible creation of a wholly new complaint. The claimant’s apparent agreement that her claims were out of time, made when she was redirected from merits submissions, was not an unequivocal withdrawal or concession of the point.

4. The Tribunal also erred by failing to consider the claimant’s repeated assertion that the incidents constituted umbrella conduct extending over a period under section 123(3)(a). The documents submitted in response to the time objection were material even though no formal pleading of limitation issues had been ordered. If discriminatory constructive dismissal was in issue, it could potentially be the final act in continuing conduct and affect both limitation and the just-and-equitable extension question.

5. The case was remitted for determination at the full merits hearing. The issues include discriminatory constructive dismissal under section 39, the asserted conduct extending over a period, and, if necessary, the just-and-equitable extension of time.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the Equality Act time and merits issues for further consideration.
• Employment Tribunal: At a preliminary hearing on 11 August 2017, dismissed the Equality Act complaints as out of time and declined a just-and-equitable extension. Its written judgment and reasons were promulgated on 21 December 2017. The constructive unfair dismissal complaint was unaffected.