Thread by @JasonBraier

1/ De Lacey v Wechseln Ltd - This is a real thread about a real case. I promise! I really do. Look, it's got a link to the judgment & everything: bailii.org/uk/cases/UKEAT…

And it's a useful one on discriminatory constructive disimssal, so have a read.

#ukemplaw

2/ DL was a trainee hair stylist. In May 2015 she found out she was pregnant. She was on maternity leave from Oct '15 to Sept '16 & resigned the following January. She brought claims of pregnancy, maternity & sex discrim as well as unfair dismissal.

3/ DL relied on events during the period post-announcement & pre-maternity leave as well as the period between return & resignation as a course of discriminatory conduct. She relied on being made to clean up dog poo in front of other trainees as a last straw.

4/ The ET found only 2 prima facie discrim acts, both happening in May 2015 (failing her on a trade test & giving her the cold shoulder). Whilst the ET found DL subject to constructive unfair dismissal for breach of the ITTC, it didn't find the dismissal discriminatory.

5/ Having found only 2 acts of prima facie historic discrimination, the ET found those 2 acts out of time & it not just & equitable to extend time. The ET didn't go on to determine whether those 2 acts were in fact sex discrimination. The reverse burden of proof wasn't applied.

6/ Part of DL's appeal was that given the ET found 2 of the events relied upon in resigning to be prima facie discrim & that the ET found those events material to the repudiatory breach, the ET should have considered whether the R satisfied the EqA reverse burden of proof.

7/ DL asserted that earlier grounds relied upon in a constructive discrim dismissal claim need not themselves be in time so long as the claim was brought in time in relation to the dismissal itself, which was the case with her claim.

8/ The ET had only found 4 events cumulatively gave rise to the repudiatory breach. 2 were the potentially discriminatory events of 2015, 1 was a comparison a manager made between DL & Vicki Pollard in Dec 2016, & the last straw was the dog poo incident.

9/ Incidentally, this is 1 of 2 Little Britain (the programme, not the place) references I can find in the whole canon of case law. The other is from a JR where the Jeremy Johnson QC uses Carol Beer's 'computer says no' to analogise bureaucratic refusal of common sense requests

10/ The EAT agreed with HHJ Auerbach in the important Williams v The Governing Body of Alderman Davies Church of Wales Primary School. Seeing as that case name takes up most of a tweet, the principle is in the next tweet, below.

11/ In Williams, the EAT held that where events contributing to a repudiatory breach are discrim, the question of whether the breach itself is discrim depends on whether the discrim conduct materially/sufficiently influenced the conduct amounting to repudiatory breach.

12/ Cavanagh J rephrased that to a question of whether the discrim matters sufficiently influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory - a question of degree.

13/ There is no need for the last straw itself to be an act of discrimination, & time runs in a discrim constructive dismissal case from the date of acceptance of the repudiatory breach & not from the date of the discriminatory acts leading up to the breach.

14/ The ET had erred in law by not considering whether the dismissal was rendered discriminatory following its finding that 2 of the 4 contributing events were themselves prima facie acts of discrimination. The case was remitted to the same ET to complete that analysis.

15/ The ET considered additionally whether the ET had erred in finding it not just & equitable to extend time re the 2015 events. The EAT found the ET had been entitled to that finding. One event of relevance was that DL's father heads the employment team at a local solicitors!