1. Introduction

The case of McLeary v. One Housing Group Ltd ([2019] UKEAT 0124_18_0602) represents a significant development in UK employment law, particularly concerning the intersection of constructive dismissal and disability discrimination under the Equality Act 2010 ("EqA"). This commentary provides an in-depth analysis of the Employment Appeal Tribunal's (EAT) decision, exploring the background, key legal issues, and the implications of the judgment for future cases.

2. Summary of the Judgment

The Claimant, employed as a support worker by One Housing Group Ltd (a registered social landlord), alleged that her employer failed to make reasonable adjustments for her disability — dyslexia — leading to discriminatory treatment, harassment, victimization, and ultimately, constructive dismissal. After a series of grievances and appeals within the company, McLeary resigned on June 30, 2016, and subsequently filed claims for unfair constructive dismissal and violations under the EqA.

The initial Employment Tribunal (ET) dismissed the EqA claims on the grounds that they were time-barred, failing to extend the three-month time limit stipulated by the Act. The Claimant appealed, raising two primary grounds:

• Ground 1: The Tribunal erred by not recognizing the constructive dismissal as inherently discriminatory under section 39 of the EqA.
• Ground 2: The Tribunal failed to consider whether the discriminatory acts constituted a continuing act over a period, which could extend the time limits under sections 123(3)(a) and 123(4) of the EqA.

The EAT upheld both grounds of appeal, mandating the Tribunal to reassess the claims considering the discriminatory constructive dismissal and the potential for conduct extending over a period.

3. Analysis

3.1 Precedents Cited

The EAT's judgment extensively references pivotal cases that shape the understanding of constructive dismissal and its intersection with discrimination law:

• Mensah v East Hertfordshire NHS Trust [1998] IRLR 531: Addressed the timing of discriminatory acts and dismissal, emphasizing the impact on time limits.
• Drysdale v The Department of Transport (The Maritime And Coastguard Agency) [2014] EWCA Civ 1083: Provided guidance on handling litigants in person, balancing proactivity with fairness.
• Meikle v Nottinghamshire County Council [2005] ICR 1: Established that constructive dismissal can constitute a discriminatory act under the Disability Discrimination Act 1995 ("DDA"), later integrated into the EqA.
• Williams v J Walter Thompson Group [2005] EWCA Civ 133: Reinforced that constructive dismissal claims can be inherently discriminatory.
• Timothy James Consulting v Wilton [2015] ICR 764: Clarified that harassment claims do not automatically include constructive dismissal unless explicitly connected.
• Berriman v Delabole Slate Ltd CA [1985] 546: Addressed the characterization of reasons for constructive dismissal, focusing on cumulative breaches.

3.2 Legal Reasoning

The EAT delved into the statutory framework, interpreting sections 39 and 123 of the EqA 2010. Section 39 prohibits discrimination in dismissal, including constructive dismissal, while sections 123(3)(a) and 123(4) address time limits, allowing extensions if conduct constitutes a continuous act.

The Tribunal initially failed to recognize that the Claimant's constructive dismissal was embedded in her discrimination claims, thereby neglecting to treat it as a discriminatory dismissal under section 39. Additionally, the Tribunal did not adequately consider whether the alleged discriminatory conduct extended over a period, which could justify an extension of the time limits for bringing claims.

The EAT concluded that the Tribunal should have treated the constructive dismissal as discriminatory, given that the Claimant's grievances inherently connected the resignation to the discriminatory treatment. Furthermore, the cumulative nature of the alleged discrimination suggested a continuous act, warranting a reassessment of the time limits.

3.3 Impact

The judgment in McLeary v. One Housing Group Ltd significantly impacts the landscape of employment discrimination claims. By affirming that constructive dismissal can be inherently discriminatory when tied to discriminatory treatment, the EAT broadens the scope for employees to seek redress under the EqA 2010. This decision also emphasizes the necessity for Tribunals to meticulously consider the cumulative and continuous nature of discriminatory conduct when assessing time limits for claims.

Future cases will likely reference this decision when determining whether a constructive dismissal claim is discriminatory and how conduct occurring over time influences the admissibility of claims within statutory time frames.

4. Complex Concepts Simplified

4.1 Discriminatory Constructive Dismissal

Constructive Dismissal: Occurs when an employee resigns due to the employer's conduct, which breaches the contract of employment fundamentally.

Discriminatory Constructive Dismissal: A form of constructive dismissal where the employer's fundamental breach is rooted in discriminatory practices based on protected characteristics, such as disability.

4.2 Time Limits under the Equality Act 2010

The EqA 2010 sets a three-month limit for bringing discrimination claims, extendable under certain circumstances. Sections 123(3)(a) and 123(4) allow for extensions if the discriminatory acts are part of a continuous or cumulative series of events.

4.3 Difference Between Unfair Dismissal and Constructive Dismissal

Unfair Dismissal: Occurs when an employer terminates an employee's contract without a fair reason or without following a fair procedure.

Constructive Dismissal: Arises when an employee resigns due to the employer's conduct, which makes the workplace untenable, effectively amounting to a dismissal initiated by the employer.

5. Conclusion

The EAT's decision in McLeary v. One Housing Group Ltd underscores the critical importance of accurately framing employment disputes, particularly where discrimination and constructive dismissal intersect. By recognizing discriminatory constructive dismissal claims under section 39 of the EqA 2010, the judgment provides a clearer pathway for employees to seek redress when faced with systemic discriminatory practices leading to resignation.

This decision not only reinforces the protections afforded to employees under the EqA 2010 but also highlights the necessity for Employment Tribunals to diligently assess the cumulative and continuous nature of discriminatory conduct. As a result, employers must be more vigilant in making reasonable adjustments and preventing discriminatory practices to avert potential constructive dismissal claims.

In the broader legal context, this judgment serves as a precedent that harmonizes the treatment of dismissal claims with equality protections, promoting a fairer and more accountable employment environment.