Should a tribunal look behind an agreed list of issues when considering whether a Claimant’s discrimination claim includes a claim of discriminatory constructive dismissal?
Yes, held the Employment Appeal Tribunal in Z v Y.
The Claimant worked for the Respondent in fire and rescue. She resigned from her job following a long sickness absence. After resigning, she issued a tribunal claim. Her claim form included various discrimination claims. It also stated: ‘I was Constructively Dismissed by [the Respondent] on 1st June 2018 – the last act of discrimination’. The parties agreed a list of issues. The list referred to constructive unfair dismissal, but not to discriminatory unfair dismissal.
The tribunal concluded that the Claimant had been constructively dismissed. She had resigned because of conduct that was discriminatory and breached trust and confidence. However, they held that they did not have to consider whether the dismissal was itself discriminatory. They found 'it was never one of the tribunal’s issues that this was a discriminatory dismissal'.
Several of the discrimination allegations were upheld. But, as the tribunal did not view the dismissal as discrimination, the allegations could not count as a ‘continuing act’ ending in dismissal and were out of time.
The EAT held that the tribunal was wrong. It had limited itself to the list of issues. It should have considered the claim of discriminatory constructive dismissal which was clearly included in the Claimant’s claim form. The EAT substituted a finding of discriminatory constructive dismissal.
It remitted the issue of whether the preceding allegations of discrimination formed ‘conduct extending over a period’ leading to the discriminatory dismissal such as to bring them in time.
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