Discriminatory comments were "trivial" and did not contribute to constructive dismissal
The Employment Appeals Tribunal (EAT) has considered whether a discriminatory comment was connected to an employee’s constructive dismissal, rendering that dismissal discriminatory.
In Clements v Lloyds Banking plc, a 50-year old employee (Mr Clements) resigned, claiming constructive unfair dismissal. He claimed that his employer had breached the implied term of mutual trust and confidence by making discriminatory comments to him, seeking to push him out of his role for “someone younger”.
Specifically, on 5 January 2012, during a conversation between Mr Clements and his manager, the manager twice commented “you’re not 25 anymore”, which Mr Clements argued constituted age discrimination.
At the first instance Employment Tribunal (ET) hearing, it was held that Mr Clements had been constructively dismissed. Further, the comments made on 5 January were discriminatory on the grounds of age; however, interestingly, the ET did not consider that the dismissal was caused by the discriminatory comments, or any other discriminatory act.
The comments did not “form a material contributing element of the cumulative treatment undermining trust and confidence which led to that decision”.
Mr Clements appealed the decision, arguing, amongst other points, that the comments were part of the course of conduct leading to his resignation and it did not “make any sense” to exclude the marks from the general course of conduct.
The EAT dismissed Mr Clements’ appeal and held that the discriminatory comments were trivial and not material to the general course of conduct leading to his resignation. Therefore, the discrimination was not the cause of the dismissal as, by the time of Mr Clements’ resignation, “far more had happened”. The effective cause of the Mr Clements’ resignation was the breach of mutual trust and confidence caused by the manager’s general conduct in driving the Claimant out of his role not the acts of discrimination.
Comment
This case is an unusual example of discriminatory comments not being sufficiently serious enough to be considered themselves a breach of trust and confidence (nor being serious enough to form part of the general course of conduct leading to the resignation).
Where discrimination is held to have played a part in a dismissal, this will affect the level of compensation to which a claimant is entitled. If a dismissal is held to be discriminatory this will, in effect, lift the cap on the unfair dismissal compensation award. The current compensatory award cap for unfair dismissal is the lower of 52 weeks’ gross salary or £76,574; however compensation for discrimination claims is unlimited.
As always, it is important that employers ensure that its staff has an awareness of what constitutes discriminatory conduct through providing equal opportunities training. This will limit the risk of discrimination in the workplace and the costly consequences which may follow. Providing training and policies on equal opportunities and diversity will also assist an employee to be able to rely on the statutory defence, namely that it took all reasonable attempts to prevent the discrimination. We can provide training on equality and diversity to your organisation, please contact Glenn Hayes on 0113 218 6484 or at glenn.hayes@irwinmitchell.com for more information.