If an employee is subjected to three acts of sexual harassment which causes her to resign and claim constructive dismissal, can the constructive dismissal itself amount to an act of harassment? This was the issue the EAT had to consider in Timothy James Consulting v Wilton.

In May 2011, Ms Wilton (W) began a personal relationship with Mr O’Connell (O’C), which ended by mutual agreement in February 2012. In February 2012, Ms Docker (D) joined the company and W was her manager. O’C and D began a personal relationship in late June 2012 and W raised concerns with O’C about the effect of the relationship on her team. In subsequent interactions between O’C and W, O’C: (i) subjected W to a tirade of criticism regarding her management style in front of a colleague during which he called her “a green eyed monster”, saying that he believed her to be jealous of D; (ii) insisted that W should apologise for her conduct towards D, even though W denied the allegations of bullying made against her; and (iii) left W with the impression that he believed in the truth of D’s allegations even though no proper investigation had taken place.  W lost trust and confidence in her employer and left, claiming sexual harassment and constructive dismissal.

A tribunal found that O’C’s conduct was related to W’s sex and had the purpose of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, as the purpose was to humiliate and undermine W in order to support D, his current girlfriend. The sexual harassment claim was therefore upheld. The tribunal also concluded that as the three incidents of sexual harassment were significant events which led W to resign, then the constructive dismissal itself also amounted to an act of harassment.

The EAT upheld the finding of sexual harassment in respect of the three incidents. However, the EAT overturned the finding that the constructive dismissal amounted to harassment. Even though the three acts of harassment caused W to resign, the tribunal must act in accordance with law and on the true construction of S.26 of the Equality Act 2010, a resignation which amounts to a constructive dismissal does not fall within the meaning of harassment.

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