Discrimination

Is Constructive Dismissal Hard to Prove?

Have you ever had your contract seriously breached by your employer? Or felt forced to resign because of your employer’s hand in creating a hostile working environment and would like to put in a claim? This could be potentially considered constructive dismissal.

Constructive dismissal can be hard to prove, and few claims win at employment tribunals, but that doesn’t mean a claimant can’t be successful. With sufficient evidence, you may even be able to resolve the issue without having to quit your job.

Still unsure of how to go about the constructive dismissal process? Fear not, we’ve covered all the necessary steps that you’ll need to take to develop a strong case for your claim.

What Is Constructive Dismissal?

Constructive dismissal, to put it plainly, is when an employer’s conduct and actions make an employee’s working environment intolerable and as a result, compels them to resign. Though the employee has chosen to leave, as their employer has mistreated them, there has been a breach of contract, and so the employee is entitled to put in a claim.

In legal terms, the employer’s wrongful behaviour, which accounts for the “constructive” part has led to the employee’s resignation – the “dismissal”, which the law interprets as unfair.

Are Constructive Dismissal and Unfair Dismissal the Same?

The answer to this is no, although the two are similar.

Constructive dismissal in practical terms refers to when an employee feels forced to leave their job as a result of unjust and wrongful behaviour carried out by their employer.

Unfair dismissal describes the act of being fired unlawfully. This is usually the case when an employer has failed to follow the appropriate dismissal procedure and gave insufficient notice to the employee when firing them.

You can read further on both Unfair Dismissal & Constructive Dismissal over on the Government website.

When Can You Claim Constructive Dismissal?

You can claim for constructive dismissal when there has been a severe breach in a contract of employment by your employer. This does not have to be limited to a single incident, as it may be that your employer has committed a series of unjust actions over some time which has amounted to a breach.

Employer Actions That Could Amount to Claiming?

  • Harassment, bullying or discrimination at work by themselves or other employees
  • A significant reduction of your salary, or threat to reduce your payments with no given reason
  • Forcing you to accept changes to your working conditions or hours of work, without an agreement, or contractual right
  • Demotion without excellent and relevant reason
  • Refusal to pay you
  • Forcing the employee to work in an unsafe working environment

Is Constructive Dismissal Hard to Prove?

Employment law is very complicated, and unless you can provide evidence that your employer has radically made your job intolerable, then constructive dismissal can be hard to prove.

Make sure you read through your contract thoroughly before making any claims to ensure there are no open clauses. For example, if your employer has forced you to work in a different location, with varying hours or at a reduced salary it would be wise to make sure your contract states they are inhibited from enforcing this; otherwise, a tribunal may deem your employer’s actions to be fair.

Is Constructive Dismissal Hard to Prove?

Also, in most constructive dismissal cases, you can only claim if you have worked for your employer for at least two years. If you’ve been wrongly treated but have less than two years continual work with your employer, then a constructive dismissal claim will only be accepted in certain situations.

Either you have been discriminated against, or the reason for your claim classifies as being automatically unfair and so no qualifying period of work is required.

What Constitutes as Being Automatically Unfair That Amounts to a Breach of Contract:

  • You were either pregnant, on maternity leave, or paternity leave
  • Acted against a health and safety issue in the workplace
  • Are a member of a trade union and participated in trade union activities, or where acting as an employee representative
  • Acted to enforce statutory employment rights
  • You have performed in accordance with whistleblowing law by reporting your employer for wrongdoing

How to Prove Constructive Dismissal

There are a few essential steps that an employee should consider before going down the constructive dismissal path.

Before resigning, you are advised to try to manage and sort the dispute between yourself and your employer first by lodging a formal grievance. This should be done in writing as it not only makes the employer aware of the issue at hand but allows your statement to go down on file. Also, keep a copy for yourself as you may need to refer to it at a later stage.

Filing a formal complaint could help the situation in several ways. First, by allowing your employer to resolve the dispute before it reaches tribunal, or as a tactical measure to support your reason for leaving, as it proves you made genuine efforts to amend the issue.

How to Prove Constructive Dismissal

It is also wise to seek legal advice from an employment law solicitor before making a constructive dismissal claim. Although this is not a legal requirement, a specialist can advise you on the strong points of your case and the prospect of it being unbeaten, which will help you better prepare.

If after lodging a formal grievance nothing changes, check to see whether your working situation corresponds to any of the actions that constitute a breach of contract. If you find that it does, leave your job immediately. While this may sound daunting, if you stay in your career, your employer could use that against you in a tribunal by stating you accepted the treatment you were receiving.

Put together a letter, which must be of exact and careful wording stating the fundamental breaches of contract your employer committed and try to gather as much evidence as you can to support your claim.

How Long After Resigning Can I Claim Constructive Dismissal?

You have exactly three months, minus a day from the date you handed in your resignation to make a constructive dismissal claim.

Before resigning, again, it is strongly recommended that you seek legal advice as to whether you do or don’t work your notice period as this may affect the success of your case.

How Long After Resigning Can I Claim Constructive Dismissal?

In your resignation letter, make your reason for leaving crystal clear, a convoluted resignation may make it appear as if your reason for leaving wasn’t due to your employer’s behaviour. 

Do not use glowing vocabulary, or thank your employer as that doesn’t depict the character of someone who is feeling forced to leave, and that could be used against you.

Also, please be aware that even if your constructive dismissal claim is successful, the compensation you receive could be limited. Sometimes employees and employers negotiate settlement agreements before the employee resigns, but this comes with significant risk, and so you should seek legal guidance if you are considering this prospect.

Ultimately, the constructive dismissal process is a complicated one, and you should seek legal advice before making any rash decisions. In most cases, employees who have not sought legal counsel have not been successful, and it’s best to have a tactical advantage when going to tribunal.

Discrimination – Remedy

A Tribunal is not bound to award injury to feelings in the lower vento band just because it is a one off act of discrimination.

The EAT said “Moving on to the ET’s assessment of injury to feelings in this case, it is right to say that, in deciding whether the case should fall within the lower or middle Vento bands, an ET might think it relevant to have regard to whether the discrimination in question formed part of a continuing course of conduct (perhaps a campaign of harassment over a long period)or whether it was only a one-off act. That said, each such assessment must be fact and case specific. It is, after all, not hard to think of cases involving one-off acts of discrimination that might well justify an award falling within the middle or higher Vento brackets, or other cases involving a continuing course of conduct that are properly to be assessed as falling within the lower band. Simply describing discrimination as an isolated or one-off act may not provide the complete picture and I do not read the Vento guidance as placing a straightjacket on the ET such that it must only assess such cases as falling within the lower band. The question for the ET must always be, what was the particular effect on this individual complainant.”

Disability Discrimination – Disability related discrimination

It was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment: the fact that there may have been other causes as well was not an answer to the claim. Further, an employment tribunal should have considered whether an employer had gained actual or constructive knowledge of a claimant’s disability by the time it rejected her appeal against dismissal, rather than simply considering whether the employer had knowledge of her disability when it reached the initial decision to dismiss.

The Claimant was dismissed by the Respondent at the end of a six-month probationary period. It was accepted that she was disabled by depression. She claimed that her dismissal was an act of disability related discrimination under section 15 EqA 2010. The ET rejected the claim because: (a)They found that the Respondent did not know and could not reasonably have been expected to know that she was disabled at the time of the dismissal; (b)They said there was no evidence that her behaviour towards her colleagues (which was part of the reason for her dismissal) “arose in consequence of” her disability; (c)There were other reasons for her dismissal in addition which were sufficient; (d)The dismissal was justified under section 15(1)(b) EqA 2010. The EAT allowed the appeal because of errors in relation to each stage of the reasoning: (a)Although the Respondent did not know about the Claimant’s disability at the time of the dismissal, they may have acquired actual or constructive knowledge of it before the rejection of her appeal and the rejection of the appeal formed part of the unfavourable treatment of which she was complaining; (b)There was in fact some evidence that her depression caused the relevant behaviour which the ET ought to have considered; (c)It was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment: the fact that there may have been other causes as well was not an answer to the claim; (d)The ET failed to consider the section 15(1)(b) defence properly; in particular, they failed to address the question whether dismissal was a proportionate response.

 An employer was not liable for harassment under Ss.26 and 109 of the Equality Act 2010 when an employee posted a racially offensive image on Facebook and shared it with a colleague

Forbes -v-LHR Airport Ltd UKEAT/0174/18

A colleague of the Appellant, Ms S, posted an image of a golliwog on her private Facebook page with the caption, “Let’s see how far he can travel before Facebook takes him off”. The image was shared with Ms S’s list of Facebook friends, including another colleague, BW. BW showed the Facebook post to the Appellant. The Appellant complained of harassment by Ms S. Ms S apologised and received a final written warning. Thereafter, the Appellant was rostered to work alongside Ms S. When he raised a concern, he was moved to another location. The Appellant complained to the Tribunal of harassment, victimisation and discrimination.

The Employment Tribunal dismissed the complaint. Whilst it found that Ms S had shared an image that was capable of giving rise to offence on racial grounds, her act of posting the message on her Facebook page was not an act done in the course of her employment and was therefore not one for which the Respondent could be liable. The Appellant appealed.

Held (dismissing the appeal) that section 109(1) of the Equality Act renders an employer liable for the acts of an employee done “in the course of employment”. Whether or not an act is in the course of employment within the meaning of that section is a question of fact for the Tribunal to determine having regard to all the circumstances: Jones v Tower Boot Co Ltd [1997] IRLR 168 applied. The relevant factors to be taken into account might include whether or not the impugned act was done at work or outside of work. It might not be easy to determine whether something was done at work if it is done online. In this case, the Tribunal did not err in law in concluding that Ms S’s act of posting the image on her Facebook page was not done in the course of employment; it was a private Facebook account, and the image was shared amongst her Facebook friends, one of whom happened to be a work colleague, BW, who took the subsequent step of showing the image to the Claimant at work. The outcome of the complaint might have been different if BW had been the target of the harassment complaint, as his subsequent act of showing the offensive image to the Appellant was done in the workplace and might be said to have been done “in the course of employment”. However, that was not the complaint that the Tribunal had to consider.

Religious Discrimination – Fundamental distinction between someone’s religious beliefs and the manner in which they choose to express them. If the latter, then no religious discrimination.

Richard Page -v- NHS Trust Development Authority UKEAT/0183/18/DA

The Claimant, who is a practising Christian, held the position of Non-Executive Director of an NHS Trust. He was also a lay magistrate sitting on family cases involving adoption decisions. The Claimant holds the firm faith-based belief that it is “not normal” for a child to be adopted by a single-parent or a same-sex couple. The public expression of those views led to disciplinary action in respect of his Magistracy. The Claimant participated in media interviews about that action without informing the Trust. The Trust instructed the Claimant to inform it before contacting the media. The Claimant was subsequently removed from the Magistracy. Before the Trust could speak to him about that removal, the Claimant took part in a further televised interview with BBC Breakfast News, during which he expressed the view that he could not see how adoption by a same sex-couple could ever be in the best interests of the child. The Claimant was thereafter suspended by the Trust and his term as a NED was not renewed. The Claimant issued claims of discrimination (direct and indirect) because of religious belief and victimisation. The Employment Tribunal dismissed the claims.

Held (dismissing the appeal): that the Tribunal had not erred in law in finding that the Claimant was treated as he was because of the manner in which the Claimant had expressed his beliefs (rather than because of the beliefs themselves), including the fact that he had spoken to the media without informing the Trust and had done so in the knowledge that his conduct would be likely to have an adverse effect on the Trust’s ability to engage with sections of the community it serves. That finding as to the reason for the Claimant’s treatment was a finding of fact which cannot be said to be perverse. The Tribunal had also not erred in rejecting the claim of indirect discrimination on the grounds that the Claimant was unable to show group disadvantage. The Tribunal had correctly applied the Court of Appeal’s decision in Mba v Merton London Borough Council [2014] 1 WLR 1501. Finally, the Tribunal had not erred in concluding, in accordance with the principles established in Martin v Devonshires Solicitors [2011] ICR 352, that the various reasons relied upon by the Respondent for its treatment of the Claimant were properly separable from the allegations of discrimination which the Claimant was making against the Lord Chancellor and others in respect of his removal from the Magistracy.

The Claimant, who is a practising Christian, held the position of Non-Executive Director of an NHS Trust. He was also a lay magistrate sitting on family cases involving adoption decisions. The Claimant holds the firm faith-based belief that it is “not normal” for a child to be adopted by a single-parent or a same-sex couple. The public expression of those views led to disciplinary action in respect of his Magistracy. The Claimant participated in media interviews about that action without informing the Trust. The Trust instructed the Claimant to inform it before contacting the media. The Claimant was subsequently removed from the Magistracy. Before the Trust could speak to him about that removal, the Claimant took part in a further televised interview with BBC Breakfast News, during which he expressed the view that he could not see how adoption by a same sex-couple could ever be in the best interests of the child. The Claimant was thereafter suspended by the Trust and his term as a NED was not renewed. The Claimant issued claims of discrimination (direct and indirect) because of religious belief and victimisation. The Employment Tribunal dismissed the claims.

Held (dismissing the appeal): that the Tribunal had not erred in law in finding that the Claimant was treated as he was because of the manner in which the Claimant had expressed his beliefs (rather than because of the beliefs themselves), including the fact that he had spoken to the media without informing the Trust and had done so in the knowledge that his conduct would be likely to have an adverse effect on the Trust’s ability to engage with sections of the community it serves. That finding as to the reason for the Claimant’s treatment was a finding of fact which cannot be said to be perverse. The Tribunal had also not erred in rejecting the claim of indirect discrimination on the grounds that the Claimant was unable to show group disadvantage. The Tribunal had correctly applied the Court of Appeal’s decision in Mba v Merton London Borough Council [2014] 1 WLR 1501. Finally, the Tribunal had not erred in concluding, in accordance with the principles established in Martin v Devonshires Solicitors [2011] ICR 352, that the various reasons relied upon by the Respondent for its treatment of the Claimant were properly separable from the allegations of discrimination which the Claimant was making against the Lord Chancellor and others in respect of his removal from the Magistracy.

In Kelly -v- Royal Mail Group Ltd UKEAT/0262/18/RN,

The Claimant worked as a postman. He had a poor attendance record generally and had triggered the Respondent’s Attendance Policy on several occasions due to repeated episodes of planned and unplanned absences. In 2017, the Claimant had two further periods of absence relating to surgery to treat Carpal Tunnel Syndrome in each of his hands. These absences triggered the policy again, the second period of absence triggering the final AR3 stage of the policy, which entitled the Respondent to review the whole of the employee’s attendance record. The Respondent decided that it had lost confidence in the Claimant’s ability to maintain a satisfactory attendance record and decided to dismiss him. The Employment Tribunal (ET) held that, although the decision to dismiss was harsh, it fell within the band of reasonable responses and the dismissal was fair. An allegation that the dismissal amounted to discrimination arising from disability was also dismissed on the basis that the Respondent did not know and could not reasonably be expected to know that the Claimant had a disability. The Claimant appealed on the grounds that it was perverse to conclude that it was fair to dismiss the Claimant for two periods of absence for corrective surgery for which the Claimant was essentially blameless, and for the Respondent to rely upon earlier absences. It was also said that the Tribunal erred in accepting that the Respondent did not have constructive knowledge of disability in circumstances where it did little more than “rubber stamp” the conclusions of Occupational Health in this regard.

The EAT Held. Dismissing the appeal that the Tribunal’s conclusion as to the fairness of the dismissal could not be said to be perverse. The policy expressly permitted earlier absences to be taken into account. Conduct that is in line with policy is unlikely to be unfair. The periods of absence for corrective surgery were, in each case, extended by other factors, and it was not outside the band of reasonable responses to take these absences into account. The policy applied to all absences, irrespective of fault or blame, and the Respondent was entitled to look at the overall pattern of absence in determining whether there was a likelihood of satisfactory attendance in the future.

As to disability discrimination, the Respondent had not simply rubber stamped the OH reports, but had, on the face of it, given independent consideration to the question of disability. Moreover, the OH reports themselves contained more than a bare assertion that the Claimant was not disabled. In these circumstances, there was no error in the Tribunal’s conclusion as to the absence of constructive knowledge of disability.

Yes. In HM Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School, the Court of Appeal has overturned the High Court’s decision that a school’s complete gender segregation of pupils aged 9–16 was not sex discriminatory. In the Court’s view, the High Court had erred by comparing the treatment of boys and girls as two groups and concluding that, since they were both being denied the opportunity to interact/socialise/learn with or from the opposite sex, there was no discrimination. The correct approach under S.13 of the Equality Act 2010 was to look at the treatment from the perspective of an individual girl or boy at the school. The child was being denied the opportunity to mix with the opposite sex, which was a detriment imposed because of the protected characteristic of sex. Thus, the treatment was direct discrimination.
AHS is a voluntary aided faith school for boys and girls aged between four and 16. It has an Islamic ethos and for religious reasons separates boys and girls from Year 5 onwards (when they are aged nine and above) for lessons, trips, breaks and lunchtimes. In June 2016 Ofsted inspected the school, which was later sent a draft of Ofsted’s report rating the school as inadequate and citing concerns about its segregation policy. Ofsted took the view that the policy limited pupils’ social development, and its report pointed out that the school had not considered ‘how to mitigate the potentially negative impact of this practice on pupils’ chances to develop into socially confident individuals with peers from the opposite gender’. Ofsted believed that this gender segregation was unlawful under the EqA. However, there was no suggestion in the report that either boys or girls received a different or qualitatively poorer level of education than the other. The school brought a judicial review challenge to the proposed report. As the most senior official at Ofsted, the Chief Inspector was named as respondent.
Mr Justice Jay upheld the challenge in the High Court (Brief 1062), ruling that Ofsted had been wrong to conclude that there was a breach of the EqA. Given that there was no distinction between the opportunities afforded to girls and boys to interact with each other, it could not be said that one sex was treated less favourably than the other. Furthermore, Jay J held that argument that segregation in a faith school generates a feeling of inferiority as to the status of females in the community is too broad and sweeping an assertion to make in a multi-cultural society, where segregation is not enforced but chosen by parents. Ofsted appealed to the Court of Appeal.
The Court of Appeal agreed with Ofsted’s submission that Jay J had erred by regarding the arrangements at the school as non-discriminatory on the basis that they were ‘separate but equal’. Since the definition of direct discrimination in S.13 EqA refers to a person, it was necessary to view less favourable treatment under that provision from the perspective of an individual pupil, rather than his or her sex as a group. From that perspective, a girl pupil who wished to mix or socialise with a boy pupil was precluded from doing so because of her sex, a protected characteristic; whereas, if she did not have that characteristic, and was a boy pupil, she would have been able to mix or socialise with all the other boys (this was also the case where the genders were reversed). This treatment was clearly less favourable, and the denial of opportunity to mix with the opposite sex was detrimental, as evidenced by the Ofsted report’s finding that segregation had an adverse impact on the quality and effectiveness of the education given by the School to girl pupils and boy pupils respectively. Accordingly, the treatment amounted to direct discrimination contrary to Ss.13 and 85 EqA.
Although it was not necessary, given the above findings on less favourable treatment, the majority of the Court (the Master of the Rolls and Lord Justice Beatson) set out obiter comments refuting Ofsted’s proposition that segregation at the School caused greater psychological harm to girl pupils because the female sex has the minority share of power in society and that power imbalance will be reinforced in adulthood by the loss of opportunity for girls and boys to socialise with each other and to regard each other as equals. The majority considered that, as the Ofsted report itself made no such assertion and there was no evidence from expert educationalists to support the proposition, Jay J had been correct to reject Ofsted’s reliance on this ground. Lady Justice Gloster, by contrast, would also have upheld this ground of appeal. In her view, on the specific evidence before the Court, Ofsted had demonstrated that the sex segregation at the school involved greater practical detriment for girls than boys.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1426.html

The Presidents of the Employment Tribunals in England and Wales and in Scotland have published their response to the consultation launched in July 2017 on uprating the bands of compensation for injury to feelings in discrimination cases. The Presidents have decided that the appropriate bands are now: a lower band of £800 to £8,400 for less serious cases; a middle band of £8,400 to £25,200 for cases that do not merit an award in the upper band; and an upper band of £25,200 to £42,000 for the most serious cases, with only the most exceptional cases capable of exceeding £42,000.

The proposal to uprate the bands came as a result of the Court of Appeal’s decision in De Souza v Vinci Construction (UK) Ltd (Brief 1074) that employment tribunals must increase compensation for injury to feelings and personal injury in discrimination cases by 10%, in line with the Court of Appeal’s decision in Simmons v Castle 2012 EWCA Civ 1039. The new bands will be set out in formal Presidential Guidance and will apply to claims presented on or after 11 September 2017. For claims presented before that date, it will be open to the tribunal to adjust the bands to reflect inflation, and the Presidential Guidance will provide the methodology for doing so.

Link to consultation response: https://www.judiciary.gov.uk/wp-content/uploads/2017/07/vento-consultation-response-20170904.pdf

Multiple choice test subjected job applicant with Asperger’s to indirect disability discrimination

In Government Legal Service v Brookes, the EAT has upheld the decision of an employment tribunal that, in requiring a job applicant with Asperger syndrome to sit a multiple choice test at the first stage of its recruitment process, the GLS subjected her to indirect disability discrimination and discrimination because of something arising in consequence of her disability. The Appeal Tribunal also upheld the finding that, by refusing her request to provide answers to the test in narrative form rather than choosing from multiple options, the GLS failed in its duty to make reasonable adjustments.

The GLS recruits around 35 trainee solicitors each year and receives thousands of applications for these posts. As the first stage in recruitment, all applicants are required to sit an online ‘situational judgement test’ (SJT). This poses multiple choice questions as a means of testing candidates’ ability to make effective decisions. B, a law graduate with Asperger syndrome, contacted the GLS ahead of the 2015 recruitment round and requested adjustments to the SJT by being allowed to submit her answers to the questions in a short narrative form. She was told that an alternative test format was not available but that time allowances were, as well as a guaranteed interview scheme for those who passed the SJT and two subsequent tests. B took the SJT and received a score of 12 out of 22. The pass mark was set at 14, with the result that her application went no further. She subsequently brought claims in the employment tribunal of indirect disability discrimination under S.19 of the Equality Act 2010, discrimination because of something arising in consequence of her disability under S.15 and a failure to comply with the duty to make reasonable adjustments in S.20.

The tribunal hearing B’s claims found that the GLS had applied a provision, criterion or practice (PCP) of requiring all applicants in the trainee recruitment scheme to take and pass the online SJT. Having heard expert medical evidence, it concluded that the PCP generally placed people who had Asperger syndrome at a particular disadvantage compared with those who did not have it. It found that B was put at that disadvantage since her Asperger’s results in a lack of social imagination and causes difficulties in imaginative and counterfactual reasoning in hypothetical scenarios, and no alternative explanation as to why she failed the SJT was advanced by the GLS. The PCP pursued the legitimate aim of testing a fundamental competency required of GLS trainees, but the means of achieving that aim were not proportionate because there was the less discriminatory alternative of the adjustments proposed by B. The tribunal considered these adjustments to be reasonable, so the claims under S.19 and S.20 were both upheld. The claim under S.15 also succeeded: the requirement to take the SJT in its unaltered form amounted to unfavourable treatment; this could not be justified as a proportionate means of achieving a legitimate aim for the reasons found in respect of indirect discrimination. 

On appeal, the tribunal’s finding that the GLS had applied a PCP which placed people with Asperger’s at a disadvantage was not challenged, but the GLS disputed that B had experienced the same disadvantage. However, the EAT held that the tribunal’s reasoning was beyond reproach: ‘The tribunal was presented with what appeared to be a capable young woman who, with the benefit of adjustments, had obtained a law degree and had come close to reaching the required mark of 14 in the SJT, but had not quite managed it.  The tribunal was right to ask itself why, and was entitled to find that a likely explanation could be found in the fact that she had Asperger’s, and the additional difficulty that would place her under due to the multiple choice format of the SJT’. The EAT further upheld the tribunal’s reasoning in respect of proportionality under Ss.15 and 19 and reasonableness under S.20. In particular, the tribunal had been entitled to reject the GLS’s submission that this was a case where the method of testing and the competency itself were inseparable and effectively the same thing. The decision-making powers of the small number of candidates with Asperger’s could properly have been measured by requiring them to answer the SJT in narrative format.

Link to transcript: 

http://employmentappeals.decisions.tribunals.gov.uk//Public/Upload/16_0302fhwwATRN.doc