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The claimant was employed as an executive assistant by VPG Ltd, a legal recruitment consultancy, from 02 April 2019. The claimant resigned from her role after four months alleging that she had been subjected to harassment on grounds of sex, race or disability.

The claimant alleged that comments made to her by colleagues during her employment resulted in her resignation.

Her claim for constructive dismissal was struck out by the Employment Tribunal on the basis of the previous Employment Appeal Tribunal (EAT) case of Timothy James Consulting Limited v Wilton in which it was held that the act of constructive dismissal was not, in itself, an act of harassment. The claimant subsequently lodged an appeal to the Employment Appeal Tribunal (EAT).

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.

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