EAT Unfair Dismissal : Constructive Dismissal – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
JURISDICTIONAL POINTS – Claim in time and effective date of termination
C brought two claims: unfair dismissal (constructive), and direct race discrimination. Although the Employment Tribunal concluded there had been two acts of direct race discrimination/harassment against C by a fellow worker, the general manager had not (as he had promised) told C of the outcome of his first informal complaint about the first of those, and (after a properly considered grievance was rejected, and C complained about the outcome to Head Office) the HR director had purported to carry out further investigation (though she had not in fact done anything much if at all, after significant delay), and C resigned only 6 weeks later. Both claims were dismissed. The ET thought that the resignation was too late for C still to be entitled to accept the employer’s repudiation (which it found as fact); and that the second of two acts by Herbert was 8 months before the claim and it would not be just and equitable to extend time in respect of it.
Held: Both these decisions were in error – the first because the ET did not set out its reasons for concluding it was too late, especially since C was off sick at the time and inferences could not so readily be drawn as to affirmation of contract where he was not actively working, and it looked as if the ET regarded passage of time alone as sufficient in itself; the second because the ET had had an argument addressed to it that there was a continuing act/continuum of behaviour, until at least a time within three months of the claim, and had failed altogether to deal with it.
Langstaff J P
[2014] UKEAT 0201 – 13 – 2603
Bailii
England and Wales
Employment
Updated: 05 December 2021; Ref: scu.526975