Out of time discriminatory acts that contribute to a last straw constructive dismissal (De Lacey v Wechseln t/a The Andrew Hill Salon)

Where discriminatory acts, that appear to be well outside tribunal time limits, form part of a chain of events that lead up to a ‘last straw’ constructive dismissal, and those acts sufficiently influenced the overall repudiatory breach in response to which the employee ultimately resigned, then a claim for discriminatory constructive dismissal may still be in time, as time will run from the resignation, even though all later within-time events in the chain were not discriminatory, according to the EAT.

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

What are the practical implications of this judgment?

The EAT had previously made clear, in Williams v Governing Body of Alderman Davies Church in Wales Primary School, that a ‘last straw’ constructive dismissal may amount to unlawful discrimination if some of the matters relied upon, though not the last straw itself, are acts of discrimination. In Williams, the EAT said that the test for this is whether discriminatory conduct sufficiently influenced the overall repudiatory breach in response to which the employee resigned.

This case builds on that, and looks at the situation where, in such a ‘last straw’ constructive dismissal claim:

• there were acts of discrimination by the employer, but:
  • those acts occurred so long before the resignation that they are well outside the primary three month time limit, and
  • there is no prospect of the time limit for them being extended on a just and equitable basis, and
  • those acts cannot be said to be ‘conduct extending over a period’, so that the time limit starts to run in relation to them when they occurred rather than at any later point, and
• all acts that are within the three months prior to the resignation, that form part of the series of events that led up to the ‘last straw’, are not discriminatory, and
• the last straw incident itself was not discriminatory

The EAT holds here that, in such circumstances, provided those earlier acts of discrimination ‘sufficiently influenced the overall repudiatory breach in response to which the employee resigned’ (i.e., they pass the above test to show that there was a discriminatory ‘last straw’ constructive dismissal), then:

• it does not matter that those acts are themselves out of time as regards any free-standing claim that might have been based solely on them, and
• the time limit starts to run instead from the date of the acceptance of the repudiatory breach, i.e., from the date on which the employee resigned

Therefore where a claimant is claiming constructive dismissal, and saying that that dismissal amounted to unlawful discrimination, in circumstances where there is a long-running chain of alleged events that lead up to the moment of resignation, the mere fact that the only events in that chain that appear to be discriminatory occurred a long time before the resignation may not be enough to defeat the claimant’s discrimination claim. Rather, if those historic events ‘sufficiently influenced the overall repudiatory breach in response to which the employee resigned’, time will run from the point of resignation (instead of from the point at which the historic events occurred), often with the result that the discrimination claim (based on the constructive dismissal) is in time.

Case details

• Court: Employment Appeal Tribunal
• Judge: Cavanagh J, sitting alone
• Date of judgment: 1 April 2021

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