Siobhan Murphy
Posted on 11 May 2021

When will an employer's discriminatory conduct be deemed out-of-time for the purposes of a 'last straw' constructive dismissal claim?

De Lacey v Wechseln t/a The Andrew Hill Salon (UKEAT/0038/20/VP)

Background

The Respondent employed the Claimant as a trainee hair stylist. The Claimant took maternity leave in October 2015 and returned to work in or around August 2016. She later resigned on 19 January 2017 and claimed that a series of events had occurred (both before and after she was on maternity leave) that amounted to a course of discriminatory conduct and which, taken cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence.

The Claimant claimed that two acts of discrimination had occurred in May 2015 and a non-discriminatory 'last straw' event subsequently occurred on 17 January 2017, which triggered her to resign. She brought claims of pregnancy, maternity and sex discrimination, together with a claim of unfair dismissal arising from constructive dismissal.

A key question was whether the events in 2015 could be deemed to have sufficiently influenced the overall repudiatory breach which gave rise to her constructive dismissal. If not, the allegations of discrimination would likely be out of time.

Background Law

For a constructive dismissal claim:

  1. there must be a breach of contract by the employer which is a fundamental breach;
  2. the employee must resign in response to that breach; and
  3. the employee must not delay too long in terminating the contract in response to the employer's breach.

The breach may be a one-off act or a series of repeated and more minor acts which, together, culminate in a serious breach. In the latter scenario, where an employee continues their employment throughout the earlier acts, and subsequently resigns in response to the final act, this can be referred to as the 'last straw' doctrine. The Employment Tribunal (ET) has provided guidance as to what will constitute a last straw event. Importantly, the last straw (i) need not be of the same gravity as the previous acts relied upon; (ii) need not be unreasonable or blameworthy; (iii) must not be entirely innocuous, unless the employer's prior fundamental breach also materially contributed to the employee’s decision to resign; and (iv) must be more than utterly trivial.

Where there is a standalone allegation of discrimination, an employee will usually have three months from the date of that act to bring a claim. However, where the last straw doctrine applies, the employee will instead have three months from the date of the last straw event to complain about all of the acts in the alleged series. The ET can choose to extend this time limit where it deems it is just and equitable to do so.

What did the ET decide in this case?

The ET dismissed the Claimant's claims of discrimination on the basis that only the events occurring in May 2015 were found to be potentially discriminatory. Given that these events were historic and the Claimant had not established there was a course of discriminatory conduct extending until January 2017, they were deemed out-of-time and the ET omitted to consider whether they constituted unlawful discrimination.

The Claimant appealed to the Employment Appeal Tribunal (EAT) against the ET's decision on the basis that the events in 2015 were a material part of the fundamental breach leading up to her resignation. She claimed that the ET should therefore have considered whether the Respondent was able to prove the acts did not constitute unlawful discrimination. If it was unable to do so, she argued that the discriminatory acts should have been deemed in time and relevant to the constructive dismissal claim.

What did the EAT decide?

The EAT allowed the Claimant’s appeal on the basis that the ET had failed to deal with the possibility that the May 2015 allegations, if discriminatory, would mean that the constructive dismissal was also discriminatory.

Where there is a range of matters that, taken together, amount to a constructive dismissal, some of which consist of discrimination and some of which do not, the question is whether the discriminatory matters sufficiently influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory. It was not necessary that the last straw itself was an act of discrimination.  

The ET did not apply its mind to the question of (i) whether the May 2015 incidents constituted unlawful discrimination and; (ii) if so, whether the overall repudiatory breach which gave rise to the constructive dismissal was sufficiently influenced by such discrimination so as to render the constructive dismissal itself an act of discrimination. The matter was referred back to the ET to be reconsidered.

What can employers take from this?

This case highlights that an employee may rely on historic allegations of unlawful discrimination when seeking to rely on a last straw act in a claim for constructive dismissal. This could even be the case where a significant amount of time has passed since an act of discrimination has occurred, provided the employee can show that it sufficiently influenced a repudiatory breach leading the employee's resignation.