The Claimant’s constructive dismissal claim was struck out for reasons which were shortly stated. The ET held that it was bound by Timothy James Consulting Ltd v Wilton [2015] IRLR 368, EAT and Urso v Department of Work and Pensions [2017] IRLR 304, EAT to conclude that, as a matter of law, a constructive dismissal could not amount to an act of harassment contrary to s26 of the EqA. Accordingly, it struck out the claim, under rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013 (as amended), as having no reasonable prospect of success. The ET also refused her application to amend the list of issues because one of the amendments related to discriminatory constructive dismissal which had been struck out, and the other amendment was refused because it was held to raise a new allegation of harassment and amounted to an application to amend the claim.

The EAT allowed the appeal. 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 s26 of the EqA, it would not be followed. A constructive dismissal is, in principle, capable of constituting an act of harassment, within the meaning of s26 of the EqA. Accordingly, the Claimant’s claim of harassment constituted in her alleged constructive dismissal would be reinstated, with consequential amendments made to the list of issues to be determined by the ET at the full merits hearing.