Link Between Discrimination And A Claim For Constructive Unfair Dismissal
The Employment Appeals Tribunal (EAT) has recently considered the case of Clements v Lloyds Bank which concerned the link between discrimination and a claim for constructive unfair dismissal.
The Claimant was aged in his 50s and was Head of Business Continuity for the Respondent. In a discussion relating to the Claimant’s performance in January 2012 his manager said to him “You’re not 25 any more”. Despite the manager consistently denied making the remark the Employment Tribunal found that the remark was made and held that it was an act of age discrimination. Although the comment did not form part of the conduct that led to the Claimant’s successful claim for constructive dismissal following his resignation in July 2012. The Claimant appealed against the Tribunal’s finding that his constructive dismissal was not caused by age discrimination. This appeal was not successful.
Whilst the “age” remark was discriminatory it was found not to have been a material cause of the repudiatory breach of contract which caused the Claimant to resign. The EAT noted that the Employment Tribunal had concluded that the resignation was not due to discrimination in any real causative sense but instead it was because of how the Respondent went about trying to move the Claimant from his job as a result of his performance.
The EAT went on to ask whether a Claimant who resigns in response to a course of conduct that amounts to a repudiatory breach of contract can legitimately be said to have resigned in response to some aspects of a Respondent’s conduct but not other aspects of it even if those other aspects of conduct also amounted to a repudiatory breach. This would depend entirely upon the facts of each case.
The Claimant also appealed on the grounds that as his manager’s evidence on the discriminatory remark was not accepted he should have been regarded as a liar so his other evidence should have been treated with greater caution and the Tribunal should have found that he was guilty of conscious discrimination. This argument was rejected by the EAT and it was noted that it would likely to be too cavalier an approach for a fact-finder to reject all of the evidence given by a witness merely because he is thought to have been untruthful in relation to one point.
Each case of constructive dismissal will always be determined on the facts of each case. In my opinion it is clear in this case that the discriminatory comment made by the manager could not have formed part of the reason for the Claimant’s resignation due to the length of time between the comment being made and the resignation itself which was six months. If the Claimant intended to rely on the comment as part of the reason for his dismissal he would have needed to show that he resigned directly as a result of the comment otherwise he could be seen to have accepted this breach.
If a Claimant’s age is not considered to have been the reason for the treatment leading to a resignation and a constructive dismissal claim even if previous discriminatory comments have been made this does not necessarily mean that the constructive dismissal was caused by discrimination.
If you believe that you have been subjected to discrimination on the grounds of your age sex sexual orientation disability or for any other reason or you have been dismissed by your employer and wish to being a claim for unfair dismissal please contact the dedicated employment department at Michael Lewin Solicitors and we will be happy to discuss your situation with you.