De Lacey v Wechseln Ltd (t/a The Andrew Hill Salon) UKEAT/0038/20/VP

Appeal against the ET’s decision that the Appellant had not been unlawfully discriminated against by the Respondent on the grounds of pregnancy and maternity. Appeal allowed.

The Appellant, who worked for the Respondent as a trainee hair stylist, went on maternity leave and resigned following her return to work. She brought claims of pregnancy, maternity and sex discrimination and also made claims of unfair dismissal arising from constructive dismissal. The ET dismissed the Appellant's claims of discrimination, holding that she had established a prima facie case of discrimination in respect of only two of her complaints but those allegations were out of time; this was because the Appellant had not established that there was a course of discriminatory conduct, and it was not just and equitable to extend time. As regards constructive dismissal, the ET rejected the Appellant's claim that she had been subjected to a discriminatory course of conduct, arising from her pregnancy/maternity; however, it accepted that she had been treated in ways that amounted to a breach by the Respondent of the implied term of trust and confidence, which the Appellant was entitled to treat as a repudiatory breach of her contract of employment. The Appellant appealed on grounds including that the ET failed to deal properly with her claim that her constructive dismissal amounted to unlawful pregnancy, maternity and sex discrimination.

The EAT held that the ET fell into the trap of regarding the fact that there was no discriminatory course of conduct as being determinative of the discriminatory constructive dismissal claim. Accordingly, the case would be remitted to the same ET to determine whether the Appellant suffered direct sex discrimination in relation to the two allegations that were made out and, if so, whether the discriminatory matters sufficiently influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory.

Published: 14/04/2021 11:25

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