HPC Law: Discrimination and Constructive Dismissals
Discrimination cases often appear to be fairly straightforward and to some extent ‘obvious’. Employers need to be aware that even when there is no evidence of outright bias or dislike for a protected characteristic, the Tribunal may still be prepared to find that there has been discrimination and will find for a Claimant.
Take the case of McMahon -v- Redwood TTM Limited and Pilling. In this case Ms McMahon (M) was a Quality control Manager. M was gay and was told by the MD Mr Pilling (P) not to disclose this as the company was “old school” and had no other gay employees.
Initially M went along with the request until she was asked if she would prefer to not attend the Christmas party in case there were questions about her personal life. M brought a claim against the company claiming that she was discriminated against on the grounds of her sexuality. P denied the conversation ever happened, but the Tribunal found in M’s favour.
It is clear from this decision that even when there is no apparent unfavourable treatment, a Tribunal will still take the step to find for a Claimant.
Constructive Dismissal claims are rarely straightforward. It is difficult to argue that a continued pattern of treatment has not been ‘accepted’ or ‘acceded to’ by the Claimant. For example, if a Claimant is stoic and just ‘accepts’ that the Employer is doing nothing about a situation, for example, making adjustments under the DDA, then there is a fine line between accepting it and a Claimant being ‘stoic’.
Contrast this with the ‘last straw’. I have recently had discussions about this with a Barrister who I instruct to advise on Employment cases. The longer the issue goes on without the Claimant raising it as an issue, the harder it will be to find that the Claimant has been unfairly constructively dismissed. For example if an employee raises a grievance which is not upheld and resigns shortly thereafter, they are more likely to succeed in arguing that they have been constructively dismissed.
Both employers and employees need to careful of the timelines of Constructive Dismissal cases as the longer the issue is not addressed, the less likely a Claimant is to succeed.
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