You are in: Home Page | About Thompsons | Publications | LELR Issue 61

Issue 61 (August 2001)

Contents

The devil in the detail
The never ending story
Mixed messages
Information and consultation: the final stage
Pay on the door
Come to my aid!

Mixed messages

Derby Specialist Fabrication Ltd v Burton [2001] IRLR 69 EAT
Commissioner of Police of the Metropolis v Harley [2001] IRLR 263 EAT

In many cases of harassment and discrimination, it is often alleged that the employer has failed to take any action to tackle the discrimination over a long period of time.

Such cases come to fruition after an extensive and unsuccessful appeal and the employee has resigned. Then it is too late, more than three months will have past since the last act of discrimination. The employee can only claim constructive dismissal.

Can the employer claim that constructive dismissal is discrimination and therefore in time for a discrimination claim?

Apparently not in disability cases, according to the EAT in Harley. The words of s4(2)d of the DDA does not include constructive dismissal. Besides, reasoned the court, constructive dismissal is an act of the employee not a detriment imposed by the employer. As for the time limit, it would in any event run from the last act of the employer rather than the date when the employee decided to resign.

Apparently yes, in race claims according to the EAT in Derby. The Sex Discrimination Act expressly includes constructive dismissal as being a discriminatory act and so should it also be in race discrimination cases even though the wording of the RRA does not contain the same words as the SDA. Furthermore the Court held that if the employer fails to act to address the discrimination that itself can be a discriminatory act which continues until the employee resigns. So the time limit runs from the resignation.

So two different conclusions depending whether it is race or disability discrimination that is complained of. Derby is a very important decision. Applicants will want to claim constructive dismissal if they are out of time on the last specific act of discrimination.
This will enable them to obtain compensation for losing their jobs.

The lesson from Harley is that as it is not possible to see the constructive dismissal as an act of disability discrimination, any tribunal claim must be lodged within three months of the employer's conduct which led to the applicant's resignation.

The loss of employment would flow from the act of discrimination and is recoverable on normal common law principles applying to discrimination claims.