Following her resignation, the Claimant presented a claim form. The Respondent had written her a letter in August 2016 proposing that her employment be terminated on the basis of a settlement agreement. Her case was that this was a reaction to the news that she was pregnant, that there had been a history of various detrimental treatment for pregnancy or maternity-related reasons, and that the writing of that letter to her had led, in due course, to her decision to resign. It was her case, at least, that she had been constructively dismissed, and that she had been both unfairly dismissed and discriminated against contrary to sections 18 and 39 Equality Act 2010.
The Respondent defended the claims on their merits. It also asserted that section 111A Employment Rights Act 1996 meant that the Claimant could not rely on the August 2016 letter in relation to any of her claims. It also asserted that she had in any event waived her right to rely on that letter as having caused her to resign, and it raised time points in relation to her discrimination claims.
At a case management Preliminary Hearing (PH) a Judge directed a further PH to consider the Respondent’s application for strike -out /deposit orders, the ‘applicability’ of section 111A and time points. The Claimant then tabled amended particulars of claim, which included her case in response to the Respondent’s reliance on section 111A. This included that the August 2016 letter was not a genuine attempt to negotiate, so (it was argued) the section was not engaged at all, that section 111A(3) applied, and that the writing of the letter was ‘improper behaviour.’
The Judge who heard the further PH stated in his decision that it was agreed that section 111A was ‘applicable’, and held that it precluded reliance on the August 2016 letter in respect of the unfair dismissal claim, but not the discrimination claims. The Claimant appealed the decision in relation to section 111A on the basis that the Judge had failed to engage with the issues in relation to section 111A(3) and (4), or, if he had, to explain his reasons in relation to them.
The appeal was allowed. In this particular case the amended particulars set out the factual basis for a claim of constructive automatically unfair dismissal, including the express assertion that the tabling of the August 2016 letter was an act of pregnancy or maternity discrimination, the assertion that section111A(3) applied, and the assertion that the writing of the letter amounted also to ‘improper behaviour’. That provided the basis for assertions that both sections 111A(3) and (4) applied. The former assertion was also made in counsel’s written skeleton argument for the second PH. While neither the pleadings nor that skeleton expressly referred to section 99 ERA 1996 or regulation 20 MAPLE Regulations 1999, that was a pure labelling exercise.
It appeared that the Claimant’s counsel at the second PH has also not raised in oral argument that there were issues under either sub-section (3) or (4) of section 111A. In those circumstances it appears that the Judge understood that what he was told was agreed in respect of section 111A had disposed of the section 111A aspect entirely; and he did not give any consideration to how matters stood in relation to sub-sections (3) or (4).
However, in circumstances where there had been a reactive amendment to the particulars of claim, in response to the Respondent’s assertion that section 111A applied, which expressly raised section 111A(3) and implicitly section 111A(4), in which no further case management prior to that PH had occurred, and no draft or agreed list of issues had subsequently been drawn up or tabled, and in which the Claimant’s reliance on these provisions was not expressly abandoned, it was incumbent on the Judge at the second PH to seek to clarify with the representatives the issues arising under section 111A(3) and(4) and then to address them.
Citations:
[2019] UKEAT 0085 – 19 – 2708
Links:
Jurisdiction:
England and Wales
Employment
Updated: 02 September 2022; Ref: scu.642759