May 31, 2014

Discrimination cases aren’t always straightforward

Workers who think they have been discriminated against are usually entitled to resign and claim against their employers…but not in a recent case.

Constructive dismissal claims are usually based upon a single, fundamental breach of contract by the employer or a continuous course of conduct where there is a ‘last straw’ that led to the Claimant’s resignation.

An act of discrimination would usually be sufficient to constitute a breach of trust and confidence, entitling the employee to resign and claim constructive unfair dismissal, although not in the recent case of Clements v Lloyds Bank.

The Claimant was in his fifties and his manager had concerns over his performance.  The manager made the comment “You’re not 25 anymore” during discussions with the Claimant.  The Claimant assumed that he was being told that he was too old for his job and that his manager wished to appoint a younger person to do the job.  In actual fact someone around his own age was ultimately placed in the role.

The Claimant raised a grievance and was unsuccessful; he subsequently resigned.  The Claimant won his case of constructive dismissal but lost his age discrimination claim.  The Claimant appealed against the finding that the constructive dismissal was not caused by age discrimination and lost again.

It may seem odd that an act of discrimination (“You’re not 25 anymore”) should NOT constitute a breach of trust and confidence entitling an employee to resign and claim constructive dismissal.  In most other cases, it almost always will.

The remark was found to be discriminatory however, it was found not to be a material cause of the repudiatory breach of contract.

The Tribunal found (and the EAT was unable to interfere on findings of fact) that the Claimant had been constructively dismissed following a cumulative course of conduct and that the Claimant had been subjected to a detriment as a result of discriminatory comments made by his manager (even though the manager consistently denied having made the comments).  The Tribunal concluded that the remark was made, not because the manager wanted to appoint a younger employee, but in an attempt to move the Claimant on.  The fact that discriminatory marks were made was not enough for the Tribunal to find that the dismissal was caused by any material extent by the remarks.

The EAT dismissed the Claimant’s appeal finding that the Employment Tribunal was entitled to find that it was not the discriminatory act that had caused the claimant to resign. The tribunal could legitimately conclude that the course of conduct causing the breach of contract was the way in which the employer had dealt with the Claimant’s performance issues and that the discriminatory remarks were trivial, not fundamental, in that cumulative course of conduct.

The EAT concluded that it depends on the facts in their context, whether a Claimant who resigns in response to a course of conduct, that amounts to a repudiatory breach, can be said to have resigned in response to some aspects of that conduct, but not others, even if those other aspects ALSO amount to a repudiatory breach.

The decision in this case is surprising as it is rare for a discriminatory act not to constitute a breach of trust and confidence.

This case is a rare example of an Employment Tribunal viewing a discriminatory comment as not sufficiently serious in itself to entitle an employee to resign. This is very unusual and employers should always ensure that they have an up to date equal opportunities policy, setting out how employees are expected to behave at work.

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