Z v Y

The Employment Appeal Tribunal allowed the claimant's appeal, holding that the Employment Tribunal erred in failing to determine a pleaded claim of discriminatory constructive dismissal. The EAT applied the principle that a list of issues is a case‑management tool and does not replace the pleaded case (Parekh v Brent LBC; Mervyn v BW Controls): an ET must not "stick slavishly" to a list where that would prevent it hearing a pleaded cause of action. The EAT substituted a finding that the claimant’s claim of discriminatory constructive dismissal under sections 15, 21 and 39(2)(c) of the Equality Act 2010 was in time and upheld, and remitted the matters of whether earlier discriminatory acts formed conduct extending over a period under section 123 EqA and the question of remedy to the ET.

Background and parties. The claimant (Z) was formerly employed by the respondent (a county council). She alleged disability discrimination, a failure to make reasonable adjustments and constructive unfair dismissal arising from decisions by a manager (W) not to permit adjustments and to bar her return to her previous role. The ET at first instance found discrimination in two respects but concluded those complaints were out of time and dismissed them; the ET also reached conclusions about constructive unfair dismissal following a remediation hearing. The claimant appealed to the EAT.

Nature of the application and relief sought. The claimant sought to overturn the ET’s ruling that her Equality Act 2010 claims were out of time and to have the ET recognise and determine her pleaded claim of discriminatory constructive dismissal (relief: declaration that the discriminatory constructive dismissal claim was in time and substantive determination of EqA claims, with remediation to follow).

Procedural history. The matter involved an earlier EAT remittal (first EAT appeal, March 2021) which required the ET to reconsider whether the claimant had accepted or affirmed the contract and whether any discriminatory breaches were continuing acts. After the remitted hearing the ET found constructive unfair dismissal but again held the EqA claims out of time. The claimant then appealed to this EAT determination.

Issues before the EAT.

• Whether the ET was wrong in law to decline to determine the pleaded claim of discriminatory constructive dismissal on the basis that it was not an issue in the case.
• Whether the ET erred in its approach to time limits under section 123 Equality Act 2010 by treating the two discriminatory acts as isolated rather than part of conduct extending over a period.
• Whether the anonymity order should continue on appeal.

Reasoning and conclusion. The EAT held that the pleaded claim of discriminatory constructive dismissal was part of the case before the ET and had not been withdrawn; the ET should have addressed it and was wrong to treat the list of issues as supplanting the pleaded claim. Applying precedent (Parekh; Mervyn; McLeary) the EAT emphasised the ET’s duty to ensure litigants understand claims and to amend lists where necessary in the interests of justice. Given the ET’s own findings of fact, the EAT concluded the discriminatory constructive dismissal claim (relying on sections 15, 21 and 39(2)(c) EqA) was in time and must be upheld. The EAT therefore substituted that finding and remitted two matters to the ET: (1) whether the earlier discriminatory acts formed conduct extending over a period ending in the constructive dismissal for the purposes of section 123 EqA, and (2) remedy. The EAT also continued the anonymity order protecting the claimant.

Appeal allowed. The ET erred in law by failing to determine a pleaded claim of discriminatory constructive dismissal and by treating the agreed list of issues as replacing the pleaded cause of action. Given the ET’s factual findings, the EAT substituted a finding that the claim of discriminatory constructive dismissal under sections 15, 21 and 39(2)(c) Equality Act 2010 was in time and upheld. The questions whether earlier discriminatory acts form conduct extending over a period under section 123 EqA and the question of remedy were remitted to the ET for reconsideration.

The claim originated in the Employment Tribunal at Bury St Edmunds (Employment Judge Laidler with lay members) with an initial liability decision (15 January 2020) finding some discrimination but ruling those EqA complaints out of time and dismissing a constructive dismissal claim. The claimant succeeded on a prior EAT appeal (first EAT remittal, March 2021) which required further findings and a remitted hearing. Following the remitted hearing the ET found constructive unfair dismissal but again held the EqA claims out of time. The claimant appealed to the Employment Appeal Tribunal, leading to this judgment [2024] EAT 63 which allows the appeal and remits issues to the ET.