Looking behind the list of agreed issues: Discrimination Dismissal

Her claim form included various discrimination claims and stated: ‘I was Constructively Dismissed by [the Respondent] on 1st June 2018 – the last act of discrimination’. The parties agreed a list of issues, which referred to constructive unfair dismissal, but not to discriminatory unfair dismissal.

The tribunal concluded that the Claimant had been constructively dismissed, and that she had resigned directly because of conduct that was discriminatory and breached trust and confidence. Several of the discrimination allegations were upheld, however, the ET held that they did not have to consider whether the dismissal itself was discriminatory. They found 'it was never one of the tribunal’s issues that this was a discriminatory dismissal'. This meant that the allegations could not count as a ‘continuing act’ ending in dismissal and were out of time.

The Employment Appeal Tribunal held that a tribunal should look behind an agreed list of issues when considering whether a Claimant’s discrimination claim includes a claim of discriminatory constructive dismissal. The ET was found to have limited itself to the list of issues. The ET should have considered the claim of discriminatory constructive dismissal which was clearly included in the Claimant’s claim form. The EAT substituted their finding for one of discriminatory constructive dismissal.

The EAT did, however, remit the issue of whether the preceding allegations of discrimination formed ‘conduct extending over a period’ leading to the discriminatory dismissal, as they had run out of time.

See below for the case judgement:

Z v Y (Practice and procedure - disability discrimination - time limits) [2024] EAT 63 (26 April 2024) (bailii.org)

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