The Employment Appeal Tribunal (EAT) accepted the appeal and in doing so overturned the earlier Wilton case, finding that the decision made in Wilton was inconsistent with both European and domestic case law.
The applicable EU Directives prohibit harassment in relation to dismissals, and case law has made no distinction between a constructive dismissal and an ordinary dismissal.
The Employment Appeal Tribunal (EAT), therefore, found that the decision made in Wilton was “manifestly wrong” and that a resignation in response to a repudiatory breach of contract amounting to harassment can therefore amount to “unwanted conduct” for the purposes of the Equality Act. The case was therefore sent back to the Employment Tribunal to be re-heard.
Implications for employers
The decision of this case means that employees with less than the two years required service to bring a claim for unfair dismissal can still bring a constructive unfair dismissal claim if they have been subjected to harassment which has resulted in their resignation.
It is also important to bear in mind that any compensation awarded in a claim of this type will be uncapped.