McLeary v One Housing Group Ltd

Factual and Procedural Background

The Appellant was employed as a support worker by the Defendant, a registered social landlord, having transferred from a predecessor organisation in 2011. The Appellant was a disabled person due to dyslexia. Beginning around May 2015, the Appellant alleged that the Defendant failed to make reasonable adjustments for her disability and engaged in conduct amounting to discrimination arising from disability, harassment, and/or victimisation. After going off sick on 29 September 2015, the Appellant resigned effective 30 June 2016 following an internal grievance and appeal process concerning discrimination complaints.

The Appellant brought claims to the Employment Tribunal ("ET") for unfair constructive dismissal and various Equality Act 2010 ("EqA") complaints including discrimination arising from disability, harassment, victimisation, and failure to comply with the duty of reasonable adjustment. The Appellant was represented initially by a lay person (her sister) but was effectively treated as a litigant in person.

The ET held a Preliminary Hearing on 11 August 2017 to consider time points and dismissed all EqA complaints as out of time, refusing to extend the time limit. The unfair constructive dismissal claim was not affected as it was undisputedly in time. The Appellant appealed this decision.

Legal Issues Presented

1. Whether the Tribunal erred in failing to consider the constructive dismissal claim as part of the discrimination claim, specifically whether the alleged constructive dismissal was itself an act of discrimination under section 39 of the EqA.
2. Whether the Tribunal erred in failing to consider whether there was a continuing act of discrimination, thus affecting the time limit and the exercise of discretion to extend time under the EqA.

Arguments of the Parties

Appellant's Arguments

• The claim form and particulars of claim, read as a whole, included a claim of discriminatory constructive dismissal under section 39 of the EqA, even if not explicitly pleaded.
• The various acts of discrimination contributed cumulatively to a fundamental breach of trust and confidence causing the constructive dismissal.
• It was not essential to expressly cite section 39 if the factual basis for discriminatory constructive dismissal was clear.
• The Tribunal should have raised or clarified the possible claim of discriminatory constructive dismissal, especially given the Appellant was a litigant in person.
• The Tribunal failed to properly consider the continuing act or umbrella conduct argument, which could bring all alleged acts of discrimination into time.
• The concession during the Preliminary Hearing that claims were out of time was not a clear withdrawal of the continuing act claim or discriminatory constructive dismissal claim.

Respondent's Arguments

• The claim form and particulars did not clearly include a claim of discriminatory constructive dismissal; the EqA claims were distinct from the constructive dismissal claim.
• The reference to "the way I have been treated" could not be construed as discrimination because failure to make reasonable adjustments is not a positive act of treatment.
• The Appellant did not expressly assert a discriminatory constructive dismissal claim and did not pursue it at the Preliminary Hearing.
• The Tribunal was not obliged to raise or clarify the claim, even for a litigant in person, citing Mensah v East Hertfordshire NHS Trust.
• The concession made at the Preliminary Hearing that claims were out of time was a valid acceptance of the time point.
• The continuing act argument was not clearly pleaded and relied on documents not properly part of the pleadings.
• The Tribunal’s self-direction on continuing acts was sufficient and the overall dismissal on time grounds was justified.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the pleadings and found that, although there was no explicit statement of a discriminatory constructive dismissal claim under section 39 of the EqA, the factual elements were clearly present. The Appellant’s pleadings described various discriminatory acts contributing cumulatively to a breach of trust and confidence that caused her resignation, which constitutes constructive dismissal. The Court held that the Tribunal should have either treated the pleadings as including such a claim or proactively sought clarification, especially given the Appellant was a litigant in person.

The Court distinguished the concession made at the Preliminary Hearing on time limits from an unequivocal withdrawal, noting the context was different from the precedent cited by the Respondent. It found the Tribunal erred in not considering the continuing act or umbrella conduct argument, which could have brought the claims within time by treating multiple acts as part of conduct extending over a period up to the constructive dismissal date.

The Court reviewed the statutory framework, confirming that constructive dismissal under section 39 EqA includes discriminatory dismissal by resignation caused by the employer’s conduct, and that time limits run from the date of dismissal. It noted that harassment claims cannot form the basis of constructive dismissal under the EqA.

The Court emphasized the importance of allowing some latitude for litigants in person but stressed that where the pleadings clearly imply a claim, the Tribunal should seek to clarify rather than overlook it. The Court found the Tribunal had insufficiently addressed these points, warranting a remit for reconsideration.

Holding and Implications

The Court ALLOWED THE APPEAL on both grounds. It held that the Employment Tribunal erred in failing to treat the claim form and particulars as including a claim of discriminatory constructive dismissal under section 39 of the EqA and in failing to consider the continuing act argument under section 123(3)(a) of the EqA.

The case was remitted to the Employment Tribunal for further consideration of the discriminatory constructive dismissal claim and the continuing act/time extension arguments. These issues are to be considered together at a Full Merits Hearing, including the unfair constructive dismissal claim which had not yet been heard.

The decision directly affects the parties by reopening the time point issue and permitting the Appellant’s claims to proceed on these bases. No new precedent was established beyond the application and clarification of existing legal principles regarding discriminatory constructive dismissal and time limits under the EqA.