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These pages do not apply outside the United Kingdom.
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The Court of Appeal has apparently held that constructive dismissal is covered by the DDA. See DRC Press Release 8 July 2004. |
[2000] IRLR 263, EAT
The employee resigned without notice after she had been downgraded following disciplinary proceedings. She claimed constructive dismissal and discrimination within the DDA.
The EAT held that "by dismissing him" in DDA old section 4(2)(d) # did not include constructive dismissal. Therefore the act complained of was not the termination and the three month time limit for bringing proceedings did not run from the termination.
However:
The EAT in Catherall v Michelin Tyre plc (EAT/915/01) subsequently disagreed. It considered that old s.4(2)(d) did include constructive dismissal. It looked at the Harley case but preferred the decision in Derby Specialist Fabrication v Burton [2001] IRLR 69, in which another EAT considered that identical wording in the Race Relations Act 1976 does include constructive dismissal. Full transcripts of the Catherall and Derby judgments are available at the Employment Appeals Tribunal website.
With effect from 1st October 2004, legislation makes clear that dismissal does include constructive dismissal (see Employment: Basic Rules). The Disability Rights Commission had recommended this clarification in 2002 in the light of the Harley case .
Given the conflicting decisions, it is not clear whether constructive dismissal is dismissal for DDA purposes before 1st October 2004. But even if constructive dismissal does not count as dismissal, this does not mean that DDA proceedings cannot be brought in a constructive dismissal case. For example, it will often be possible to bring DDA proceedings on the grounds of being "subjected to any other detriment". However the three months time limit would then run from the 'being subjected' rather than from leaving the job.
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Last updated 3rd July, 2003
