Permission to amend the notice of appeal was granted. The appeals, as amended, were allowed in part.
The EAT’s earlier decision in Timothy James Consulting Ltd v Wilton [2015] IRLR 368 had been decided per incuriam – European Directives and domestic caselaw, in the light of which it was ‘manifestly wrong’. In so far as Wilton had decided that a constructive dismissal could not itself amount to an act of unlawful harassment within the meaning of section 26 of the Equality Act 2010, it would not be followed.
A constructive dismissal is, in principle, capable of constituting an act of harassment, within the meaning of section 26 of the Equality Act 2010. Accordingly, the Claimant’s claim of harassment constituted in her alleged constructive dismissal (which had been struck out by the ET in reliance upon Wilton and certain obiter dicta in Urso v Department of Work and Pensions [2017] IRLR 304, EAT) would be reinstated, with consequential amendments made to the list of issues to be determined by the ET at the full merits hearing.
The ET ought to have permitted an amendment to the claim form, to include an additional allegation of harassment, which was based upon facts already pleaded. Permission to re-amend the particulars of claim, and to make associated amendments to the list of issues, was granted.
[2021] UKEAT 000876 – 20 – 150
Bailii
England and Wales
Updated: 20 August 2021; Ref: scu.666686 br>