EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
RACE DISCRIMINATION
VICTIMISATION DISCRIMINATION
HARASSMENT
UNFAIR DISMISSAL – Constructive dismissal
The Claimant resigned. In a discursive ET1 he complained of the conduct of his senior manager toward him as her deputy, generally asserting that she had undermined and overruled him, taken actions adverse to him, declined to involve him in decisions and queried things such as his claim for time off in lieu. He said that though she had agreed that he could work on one Sunday a month, she drew up a rota providing he should work for 3 in every month even though she knew he was a Christian who placed a value on churchgoing. Finally, she sent him an email which though it appeared anodyne to an uninformed reader, was being used by her to belittle him: and this was the last straw which justified him in resigning. She had asked him to take over a shift from another employee who began at 10am, but insisted that he started at 9 without good reason. These were acts of harassment, or victimisation, or sex/race discrimination as well as being a breach of the implied term, justifying resignation. At a Preliminary Hearing an Employment Judge, in the Claimant’s absence, without hearing evidence, relying in part on what she was told by the senior manager (who was at the hearing), and on 40-50 documents out of a bundle of some 800 pages, not all of which she had read though they were presented as relevant, focussing upon individual events in isolation and relying also in part on what was said in the Respondent’s ET3, struck-out the whole claim as not being reasonably arguable. This was held the wrong approach: moreover, she had not directed herself as to that which is the correct approach, namely to take the allegations in the claim at their reasonable highest, unless conclusively disproved by a relevant document. The appeal was allowed, save in those respects in which notwithstanding the error of approach the Judge was plainly and obviously right to reach the conclusions to which she had come.
Remitted for further hearing to a different Tribunal.
Langstaff P J said: ‘The meaning that correspondence or observations have when they are directed by one person to another may often depend very much on the context of the relationship between the two … [Looking at incidents in isolation] is perhaps to fail to see the eloquence of the story painted by the whole of the series of events and to focus instead upon events taken individually as though they were in silos. In a constructive dismissal case arising out of a poisoned relationship between parties, what matters is the totality of the picture rather than any individual point along the way.’
Langstaff P J
[2015] UKEAT 0312 – 14 – 2105, [2015] ICR 1285
Bailii
England and Wales
Cited by:
Cited – Owens v Owens SC 25-Jul-2018
W petitioned for divorce alleging that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. H defended, and the petition was rejected as inadequate in the behaviour alleged. She said that the section should be . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.565074