Z v Y

A list of issues is a case-management tool. It does not replace a pleaded claim. An Employment Tribunal must determine a clearly pleaded claim of discriminatory constructive dismissal unless the claimant has withdrawn it knowingly, even where the list of issues omits that cause of action.

A constructive dismissal is discriminatory where discriminatory matters materially influenced the repudiatory breach. Time for that dismissal runs from acceptance of the breach. It may therefore be in time although earlier discriminatory incidents are out of time. Whether those earlier incidents form conduct extending over a period under section 123 of the Equality Act 2010 remains a fact-specific question.

The claimant resigned after the respondent had refused a workplace adjustment and informed her that she could not return to her former role. Her ET1 alleged that the resignation was the final act of disability discrimination.

The Employment Tribunal initially rejected the constructive-unfair-dismissal claim and held the Equality Act claims out of time. On a first EAT appeal, the matter was remitted. The ET then found constructive unfair dismissal but again dismissed the Equality Act claims, holding that discriminatory constructive dismissal had not been an issue and that the earlier acts were not continuing conduct.

The claimant appealed. The central issues were whether discriminatory constructive dismissal was part of the pleaded case, and whether the earlier discrimination could be conduct extending over a period.

1. Appeal allowed. The ET erred in declining to determine discriminatory constructive dismissal. The ET1 expressly pleaded that the claimant’s resignation was the final and last act of disability discrimination. The claim had not been withdrawn.

2. The omission of that cause of action from the list of issues did not remove it from the case. A list of issues assists case management; it is not a formal substitute for pleadings. The ET had focused on the forms of prohibited conduct but had never asked the claimant to clarify how she relied on section 39 or whether she intended to abandon her pleaded dismissal claim. It was wrong to adhere slavishly to the list where that prevented determination of the claim actually advanced.

3. On the ET’s findings, only one conclusion was possible. The discrimination found by the ET materially influenced the repudiatory breach of trust and confidence that caused the claimant’s constructive dismissal. The EAT substituted a finding that the discriminatory constructive-dismissal claim under sections 15, 21 and 39(2)(c) of the Equality Act 2010 was brought in time and succeeded.

4. Time for a discriminatory constructive dismissal runs from acceptance of the repudiatory breach, rather than from the earlier discriminatory events. A claim for that dismissal may consequently be timely even if the earlier incidents are not. The ET had nevertheless been entitled, when considering the two earlier acts in isolation, to treat the refusal of an adjustment as an omission occurring when the respondent decided not to comply, and the statement barring return to the role as a one-off act with continuing consequences.

5. It remained fact-sensitive whether the earlier acts, together with the discriminatory constructive dismissal, constituted conduct extending over a period under section 123(3)(a). That issue, and remedy, were remitted to the same ET where practicable.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and substituted a finding that discriminatory constructive dismissal was timely and succeeded: [2024] EAT 63.
• Employment Tribunal, Bury St Edmunds: Following an earlier EAT remission, found constructive unfair dismissal but dismissed the Equality Act claims as out of time. Its judgment was sent to the parties on 12 September 2022.
• Employment Tribunal, Bury St Edmunds: In its original liability decision, rejected constructive dismissal, found two acts of disability discrimination but held the Equality Act claims out of time. The later first EAT appeal remitted issues concerning affirmation and continuing acts.