COMMISSIONER OF POLICE OF THE METROPOLIS v MISS S K HARLEY [2001] UKEAT 518_00_1902

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 518_00_1902Case No Appeal No. EAT/518/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
COMMISSIONER OF POLICE OF THE METROPOLISAPPELLANTMISS S K HARLEYRESPONDENT
Before
Mr Justice Charles Ms N Amin Mr J C ShrigleyDate 19 February 2001
[1]APPEARANCES For the Appellant MR P OLDHAM (of Counsel) Instructed By: Mr D Hamilton Metropolitan Police Service Solicitor's Dept New Scotland Yard Broadway London SW1H OBG For the Respondent MS L CAMPBELL (Representative) MR JUSTICE CHARLES : In this case the Appellant is the Commissioner of Police of the Metropolis (the Appellant) and the Respondent is Miss S.K. Harley (the Respondent).[2]The appeal is against the finding of an Employment Tribunal sitting at London (South) on 31 January 2000 that the Respondent's claim under the Disability Discrimination Act 1995 (the DDA 1995) was in time.[3]That decision of the Employment Tribunal was based on its conclusions that:(a) the Respondent's "constructive dismissal" was a "dismissal" within section 4(2)(d) of the DDA 1995, and(b) having regard to that conclusion that the "act complained of" for the purposes of paragraph 3(1) of Schedule 3 to the DDA 1995 was done when the Respondent decided to terminate her contract of employment. The issues raised in argument on this appeal[4]The first issue raised by the Appellant was whether the phrase "by dismissing him" in section 4(2)(d) of the DDA 1995 includes a constructive dismissal. The Appellant's case was that if it does not then the appeal succeeds and it would be unnecessary to consider the next issue raised by the Appellant.[5]That issue was that if constructive dismissal is included within the phrase "by dismissing him" in section 4(2)(d) of the DDA 1995 whether in respect of a claim based on a constructive dismissal time runs from(i) the repudiatory breach, or(ii) the date upon which the employee decides to treat that repudiatory breach as putting an end to the contract of employment. In other words is the "act complained of " for the purposes of paragraph 3(1) of Schedule 3 to the DDA 1995 the date of the repudiatory breach or the date of the termination of the contract of employment. Although we agree that this is a separate issue and does not arise if "by dismissing him" in section 4(2)(d) of the DDA 1995 does not include a constructive dismissal we are of the view that the issues relating to the time limits set by the DDA 1995 are relevant to the extent of the meaning of the phrase "by dismissing him" in section 4(2)(d) of the DDA 1995.[6]At the hearing we raised a further point. This was if the Employment Tribunal's conclusion that a "dismissal" in section 4(2)(d) of the DDA 1995 includes a constructive dismissal is found to be wrong as a matter of law, whether this would have the effect that their conclusion in this case that it was not just and equitable to extend time for bringing a claim based upon the earlier acts complained of (which, as we understand it, may also have been relied on as repudiatory breaches triggering the constructive dismissal although it seems to be issues concerning the appeal that was the proximate trigger relied on – see paragraph 9 of the Extended Reasons) was flawed.[7]This was not a point that was raised by or on behalf of the Respondent to the appeal. Before us she appeared by a union representative and a friend. However, from March 2000 until shortly before the hearing of the appeal she did have the benefit of advice from solicitors (Thompsons). Procedure[8]During the course of the hearing before us on 11 October 2000 questions were raised as to whether there was any Parliamentary material that was of assistance. Efforts were made to make appropriate additional enquiries on that day but we decided that it was appropriate for us to give the parties further time for research on this question. Accordingly we heard the full oral argument and gave directions enabling the parties to put Parliamentary material and written submissions thereon to us. We directed that the Appellant through his solicitors was(i) to send any such material and submissions to the Respondent,(ii) to collate her response, and then(iii) to send any such material relied on by either, or both, of the parties and their submissions to this Tribunal.[9]The Appellant, through his advisers, embarked on this course and indicated in the submissions sent to the Respondent that the Appellant had found no relevant Parliamentary material. In addition, and in my view properly, in those submissions the Appellant identified a point by reference to Gloucester Working Mens' Club v James [1986] ICR 603 which the Respondent might have taken had she been represented at the hearing by a lawyer and gave the Appellant's answer to it.[10]Surprisingly, and in my view inappropriately, the Respondent through solicitors (Thompsons) chose not to follow our directions as to the making of further submissions in that(a) they did not confine their submissions to any relevant Parliamentary material (or to that and the additional point raised by the Appellant because the Respondent was not represented before us), and(b) they did not follow the procedure we had set out. Rather those solicitors on behalf of the Respondent (i) sought to reargue the appeal in written submissions, and (ii) sent those submissions directly to this Tribunal rather than to the Appellant. In doing so they made no comment on the additional point raised by the Appellant but said that they had not been able to locate any relevant Parliamentary material and had no comment to make on the Appellant's submissions in that regard.[11]I record that in my view the Respondent, her union (if they were still involved) and her solicitors acted inappropriately in sending such submissions directly to us with a copy to the Appellants. If they wanted to make such submissions as a first step they should have asked the Appellant whether he had any objection. They should not have "jumped the gun" by sending them to us. This is because if the Appellant had objected to such further submissions being made it would not have been right for us to see them before we had determined whether the Respondent should be allowed to make them.[12]In fact those written submissions raise only one new point by reference to Western Excavating v Sharp [1978] IRLR 27 . In all the circumstances the Appellant has (in my view sensibly and appropriately) taken no objection to us having regard to the additional written submissions made on behalf of the Respondent and has responded to the additional point in writing. Neither side has invited us to hear further oral submissions.[13]We have therefore had regard to the written and oral submissions made on 11 October and the further written submissions from both sides that have been submitted to us since that hearing.[14]We note that the further written submissions made on behalf of the Respondent do not make any points on the additional point raised during the course of the hearing and set out in paragraph 6 above. Parliamentary material and the Human Rights Act 1998[15]It is common ground that there is no relevant Parliamentary material which we should take into account in this case in construing and applying the DDA 1995. No arguments were advanced by reference to the Human Rights Act 1998 or the European Convention on Human Rights. Background facts[16]These appear from paragraphs 7 to 11 of the Extended Reasons. These are in the following terms:
"7 In the Applicant's Originating Application she refers to suffering from bulimia nervosa for many years. Her claim for disability discrimination is as follows – work pressures had made her ill; her illness became a disability; because of her illness she signed a document which resulted in the disciplinary process; she had obtained a job in another part of the Metropolitan Police; following the disciplinary proceedings the sanction imposed upon her frustrated her transfer to the other position. Therefore the sanction (the downgrading from AO to AA) amounted to an act of discrimination. In addition she was downgraded in terms of overall performance from a grade 2 to a 3 for the year 1998/1999 by reason of her sickness record which was described by the countersigning Officer as being 'extremely bad'. 8 The Applicant did not attend the hearing nor did she give written evidence. Oral evidence was taken from her partner John Stapleton, who had worked for the Respondent until 1 January 1999 upon which date he had been transferred to another organisation. 9 The Tribunal found that the incident which had resulted in the commencement of the disciplinary process had taken place on 28 November 1997. The Applicant does not appear at any stage to have denied that she had done wrong. There was some delay before the matter was investigated because the Applicant had gone off sick returning in August 1998. There was then an initial interview in relation to the incident. The disciplinary hearing took place on 12 February 1999 at which time she was demoted from her position of AO to that of AA. She was represented by her trade union. An appeal was lodged on 5 March 1999 but there was some delay before the appeal was heard. The Appeal took place on 2 June 1999 but before then the Applicant had by letter of 20 May 1999 (which was the date upon which she had seen her appraisal for the year 1998/99) given notice to her Director that, in the absence of any satisfactory outcome of her appeal against the decision of the disciplinary hearing and generally by reason of their failure to take her complaint seriously, she would consider her employment terminated. In fact she worked up to 18 June 1999. She went into the office on 20 June 1999. She found no decision in relation to her appeal and she treated her employment as terminated with immediate effect. On 21 June 1999 a letter was written to her by the Deputy Director, John Reynolds, indicating that he had considered her appeal. The basis of her appeal had been that (i) the allegation was wrongly treated as gross misconduct (ii) the offence occurred when the Applicant was ill, and insufficient consideration had been given to supporting medical evidence. (iii) the offence was not deliberate but it was an administrative expedient carried out in good faith without intention to deceive. (iv) there were procedural errors throughout the process which alone warranted the overturning of the board's finding. Mr Reynolds considered each of those grounds of appeal separately and concluded that he could find no reason to overturn the findings of the disciplinary board. 10 By the time the letter of the 21 June 1999 was received by the Applicant she had already left her employment. 11 The Applicant was aware that time limits were running against her and she was unable to obtain from her union the necessary legal advice to enable her to complete the Originating Application. In the end she did so herself on 17 September 1999 and it was received by the Regional Office on that day."
The most relevant provisions of the DDA 1995.[17]Section 4(2) of the DDA 1995 provides as follows:
"4(2) It is unlawful for an employer to discriminate against a disabled person whom he employs – (a) in the terms of employment which he affords him; (b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit; (c) by refusing to afford him, or deliberately not affording him, any such opportunity; or (d) by dismissing him, or subjecting him to any other detriment."
[18]Paragraph 3 of Schedule 3 to the DDA 1995 provides as follows:
"3(1) An employment tribunal shall not consider a complaint under section 8 unless it is presented before the end of the period of three months beginning when the act complained of was done. (2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so (3) For the purposes of sub-paragraph (1) (a) where an unlawful act of discrimination is attributable to a term in a contract, that act has to be treated as extending throughout the duration of the contract; (b) any act extending over a period shall be treated as done at the end of that period; and (c) a deliberate omission shall be treated as done when the person in question decided upon it. (4) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission - (a) when he does an act inconsistent with doing the omitted act; or (b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done."
[19]"Dismissal" is not defined by the DDA 1995. Is a constructive dismissal within the phrase "by dismissing him" in section 4(2)(d) of the DDA 1995? Termination of a contract or employment- dismissal - constructive dismissal[20]A contract of employment can be terminated without any act by the employee when the employer decides to terminate the contract before it would end by effluxion of time. In our view, such a termination of a contract is clearly a dismissal. Indeed in our judgment as a matter of ordinary language and having regard to the common law the primary and obvious meaning of the term "dismiss" or "dismissal" is a termination of a contract of employment by the unilateral act of the employer whether it is so terminated with or without notice.[21]A contract of employment can also end by effluxion of time (e.g. a fixed term contract or one that by its terms end on a normal retirement date). In our view, as a matter of ordinary language and having regard to the common law such a termination of a contract would not be regarded as a dismissal. As appears below such a termination has been included in some statutory definitions of a "dismissal"[22]A "constructive dismissal" ends a contract of employment and occurs when an employee in response to a repudiatory breach of contract by his employer decides to terminate his contract of employment. A constructive dismissal therefore involves an act of election by the employee based on a repudiatory breach of contract by the employer. Naturally we accept (as pointed out by the Respondent's solicitors) that in Western Excavating v Sharp [1978] ICR 221 the Court of Appeal pointed out that this was a contractual test or approach (see 225H to 226C) and that the contractual test should be applied to the definition of "dismissal" in section 3(1)(c) Redundancy Payments Act 1965 (which is set out later in this judgment). The description or label "constructive dismissal" demonstrates that as a matter of ordinary language and having regard to the common law this method of ending a contract of employment is not within the primary and obvious meaning of the term "dismiss" or "dismissal". That of course does not mean that in all contexts a "dismissal" does not include a "constructive dismissal". We accept that in some contexts it could be on the basis that it is within an extended or secondary meaning of a "dismissal". Also it has been expressly included within some statutory definitions of a "dismissal". Other legislation[23]The Sex Discrimination Act 1975 (the SDA 1975 ) and the Race Relations Act 1976 (the RRA 1976) contain provisions that are in effectively the same terms those in section 4(2)(d) of the DDA 1995. "Dismissal" and "dismissing" are not defined in the RRA 1976. Further, until 1986, "dismissal" was not defined by the SDA 1975.[24]The Redundancy Payments Act 1965 which introduced the right to redundancy payments provided by section 3(1) as follows:
"(1) For the purposed of this Part of this Act an employee shall, subject to the following provisions of this Part of this Act, be taken to be dismissed by his employer if, but only if, - (a) the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice, or (b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract, or (c) the employee terminates that contract without notice in circumstances (not falling within section 10(4) of this Act) such that he is entitled so to terminate it by reason of the employer's conduct."
This definition therefore covers: (i) termination by a unilateral act of the employer, (ii) termination by effluxion of time, and (iii) termination as a result of a constructive dismissal. (See now s. 95(1) Employment Rights Act 1996).[25]The Industrial Relations Act 1971 introduced the right to claim unfair dismissal. Section 23(1) and (2) of that Act are in the following terms:
"(23)(1) In this Act 'dismissal' and 'dismiss' shall be construed in accordance with the following provisions of this section. (2) Subject to the next following subsection, for the purposes of this Act an employee shall be taken to be dismissed by his employer if, but only if, - (a) the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice, or (b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract."
This section therefore followed section 3 of the Redundancy Payments Act 1965 save that it omitted any express reference to a constructive dismissal.[26]In Sutcliffe v Hawker-Siddeley Aviation Ltd [1974] ITR 58 at 61 D/E, Sir John Donaldson (the President of the National Industrial Relations Court) said this:
" … we are aware that there is some concern in trade union and other circles as to whether it is possible to have what is known as a 'constructive' dismissal under the Industrial Relations Act. The point – which has no attractions at all, except perhaps to the most dedicated and academic of lawyers – is based upon a comparison between the wording of two Acts."
He then sets out section 3(1) of the Redundancy Payments Act 1965 and section 23(2) of the Industrial Relations Act 1971 and at 62 A/C continues as follows:
"There is no equivalent to '(c)' in section 3(1) of the 1965 Act. That comparison points, it is said, to Parliament having intended that there should be no room for an 'unfair constructive dismissal'. We entirely reject that contention. We consider that the omission arose solely because the draughtsman thought it unnecessary to include the subsection. We have no doubt that there can be constructive unfair dismissals and that any amendment of the 1971 Act to include a subsection (c) equivalent to that contained in the 1965 Act would have no effect other than to dispose of a misconstruction of the Act. "
[27]The judgment in the Sutcliffe case was given on 10 September 1973.[28]The Trade Union and Labour Relations Act 1974 introduced a definition of "dismissal" for the purposes of unfair dismissal. This definition was contained in paragraph 5 of Schedule 1 to the Trade Union and Labour Relations Act 1974 which was in the following terms:
"5(1) In this Schedule 'dismissal' and 'dismiss' shall be construed in accordance with the following provisions of this paragraph. (2) Subject to sub-paragraph (3) below, an employee shall be treated for the purposes of this Act as dismissed by his employer, if, but only if, - (a) the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice, or (b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract, or (c) the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct."
This definition therefore adopted the definition in the Redundancy Payments Act 1965. The Sex Discrimination and Race Relations Acts[29]As I have said, prior to 1986 there was no definition of the term "dismissing" or "dismissal" for the purposes of the SDA 1975 or the RRA 1976.[30]In 1986 a definition of "dismissal" was introduced into the SDA 1975 and that definition is now found in section 82(1A) of the SDA 1975 and it is in the following terms:
"(1A) References in this Act to the dismissal of a person from employment or to the expulsion of a person from a position as partner include references - (a) to the termination of that person's employment or partnership by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the employment or partnership is renewed on the same terms; and (b) to the termination of that person's employment or partnership by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the employer or, as the case may be, the conduct of the other partners."
As appears from that definition it provides that dismissal is to include termination of a person's contract of employment by (i) effluxion of time, and (ii) constructive dismissal.[31]In our judgment the fact that termination of the contract of employment by the employer with or without notice is not included in this definition is an indication that in making this amendment Parliament was of the view that such a termination was clearly a dismissal and therefore it did not need to provide that references in the SDA 1975 to "dismissal" included such a termination of a contract of employment. In our view this is a confirmation of the point made in paragraph 20 hereof that the primary and obvious meaning of the term "dismiss" or "dismissal" is a termination of a contract of employment by the unilateral act of the employer whether it is so terminated with or without notice.[32]The amendment to the SDA 1975 to add section 82(1A) was made by the Sex Discrimination Act 1986 following the decision in Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) [1986] IRLR 140 . In that case the European Court decided that dismissal of a woman solely because she had obtained the qualifying age for a state pension, which age is different for men and women under national legislation, constitutes discrimination on the grounds of sex, contrary to Article 5(1) of the Equal Treatment Directive No.76/207 . In paragraph 31 of the judgment of the European Court, after referring to Article 5(1), the Court stated as follows:
"31 In its judgment in the Burton case the Court has already stated that the term 'dismissal' contained in that provision must be given a wide meaning. Consequently, an age limit for the compulsory dismissal of workers pursuant to an employer's general policy concerning retirement falls within the term 'dismissal' construed in that manner, even if the dismissal involves the grant of a retirement pension."
[33]As can be seen from section 82(1A) of the SDA 1975 the amendment to include the termination of a person's employment by the methods referred to therein covered the position in the Marshall case and went further to also include therein a constructive dismissal. In our view the inclusion of constructive dismissal is in line with the paragraph we have cited from the decision of the European Court.[34]No equivalent amendment was made to the RRA 1976.[35]Further, when Parliament enacted the DDA 1995 it did not include an equivalent or any definition of "dismissal" added to the SDA 1975 by s.82(1A) thereof. The position having regard to that statutory history and background[36]In our judgment the issue is whether the phrase "by dismissing him" in section 4(2)(d) of the DDA 1995 should be given an extended meaning (i.e. one that is not confined to its primary and obvious meaning). As we have said there is no relevant Parliamentary material on the point.[37]In the absence of that history and background we would accept that there would be some force in the argument that the phrase "by dismissing him" in section 4(2)(d) of the DDA 1995 should include "constructive dismissal" as an extended or secondary meaning of the phrase. However, and notwithstanding the views of Donaldson J (as he then was) expressed in Sutcliffe v Hawker-Siddeley Aviation Ltd [1974] ITR 58 (and cited in paragraph 26 above), in our judgment that history and background indicates that this was not the intention of Parliament when it enacted the DDA 1995 and that on its true construction the phrase "by dismissing him" in section 4(2)(d) of the DDA 1995 does not include "constructive dismissal".[38]In our judgment the fact that on two occasions Parliament has decided to define "dismissal" to (at the least) make it clear that in the legislation to which that definition applies it is to bear a wider meaning than its primary and obvious meaning and is to include "constructive dismissal" demonstrates that by not including such a definition in the DDA 1995 Parliament intended that the phrase "by dismissing him" in section 4(2)(d) of the DDA 1995 should bear its primary and obvious meaning and not a wider meaning to include "constructive dismissal".[39]We agree with the submission made on behalf of the Appellant that the passage at page 225D of the judgment of Lord Denning MR in Western Excavating v Sharp [1987] ICR 221 where he says (at 225C) that the omission from section 23 Industrial Relations Act 1971 of an equivalent provision to subsection 3(1)(c) Redundancy Payments Act 1965 was significant supports this conclusion. In any event that passage negatives or (at least) balances the citation of the views of Donaldson J (as he then was) expressed in Sutcliffe v Hawker-Siddeley Aviation Ltd [1974] ITR 58 at 61D/E cited above (see paragraph 26). Authorities and policy arguments[40]We were not referred to any authorities that were directly in point. In addition to the cases referred to above both sides referred to Lupetti v Wren's Old House Ltd [1984] ICR 348 together with the Gloucester Working Men's Club case, Reed and another v Stedman [1997] IRLR 299, Cast v Croydon College [1998] IRLR 318 , Weathersfield v Sargent [1999] IRLR 97 and Clark v Novacold [1999] IRLR 320.[41]Clark v Novacold shows that one should not expect consonance between the three Discrimination Acts and that familiarity with the 1975 and 1976 Acts does not facilitate interpretation of the DDA 1995 (see for example paragraph 30 of the judgment of Mummery LJ). However in our judgment this does not make the statutory history and background we have set out irrelevant or unhelpful in this case. This is because it is focused on the phrase that is common to all three Acts, namely " to discriminate against [a person] --- by dismissing him [her] or subjecting him [her] to any other detriment " and in particular on the statutory use of the word "dismissing". Whereas the differences pointed out in Clark v Novacold relate primarily to the nature of "discrimination" (see paragraphs 31 to 33 of the judgment of Mummery LJ).[42]Further, and in any event, in our judgment the differences in the structure and terms of the DDA 1995 and in particular the provisions thereof relating to the duty to take "reasonable steps" and their relationship to "justification" (see in particular sections 5(1) to (5) and 6 of the DDA 1995) favour a conclusion that in the DDA 1995 "dismissing" should be given its primary and obvious meaning and not extended to include "constructive dismissal". This is because a breach of that duty:(a) gives rise to a "free standing" cause of action, and(b) is likely to be triggered in respect of an alleged breach of contract by the employer which an employee later seeks to rely on to found a constructive dismissal at the time that that alleged breach occurs.[43]It is correctly common ground between the parties that in Weathersfield v Sargent , which was referred to by the Employment Tribunal and was a case under the RRA 1976, the Court of Appeal(i) understood and proceeded on the basis that the statutory phrase "by dismissing him" in the RRA 1976 included a "constructive dismissal", but(ii) that point was not specifically considered. It is apparent from the facts of that case (see in particular paragraphs 2 and 5 of the judgment of Pill LJ) that the Applicant (Mrs Sargent) was employed on 11 April and orally resigned a few days later. Later she explained her reasons for so doing by a letter dated 18 April, which gave the reason as the employer's racialist policy. Therefore it seems that no "timing point" arose under section 68 of the RRA 1976. In the absence of such a "timing point" to make the argument that "by dismissing him" did not include a "constructive dismissal" an effective, or relevant, argument the employer would in addition have had to have successfully argued that it had not subjected Mrs Sargent to any other detriment, or discriminated against her in the terms of employment offered having regard to its racialist policy. It seems to us that such additional argument would have been doomed to failure and that this may explain why the point whether the statutory phrase "by dismissing him" included a "constructive dismissal" was not raised or thought of. But whether or not this is so, and although we accept that Weathersfield v Sargent supports the argument (which we accept) that "dismissing" and "dismissal" can include a "constructive dismissal", in our judgment that case does not otherwise assist either side in this case because that point was not considered therein and there was no need for it to be considered.[44]In this case the real relevance of the issue whether "by dismissing him" includes a "constructive dismissal" is the "timing or limitation point" arising from paragraph 3(1) of Schedule 3 to the DDA 1995. It seems to us that it is likely that this will be, or is likely to be, its relevance in other cases. In this context the power to extend time for bringing a complaint if it is just and equitable to do so is therefore also relevant, as is the second point raised on this appeal namely when was the "act complained of" done in respect of a constructive dismissal.[45]The Lupetti case and the Gloucester Working Men's Club case do not concern a constructive dismissal but cases where the employees were given notice terminating their employment by the employers and thus plainly a "dismissal". In those cases it was decided that the "act complained of" for the purposes respectively of the RRA 1976 and the SDA 1975 was the termination of the employment at the expiry of the notice and not the giving of the notice. These cases are therefore not directed to, and in our judgment do not provide any assistance or guidance on, the first point raised on this appeal (namely whether the phrase "by dismissing him" includes a "constructive dismissal"). We agree with the submission made on behalf of the Appellant that the fact that in the Gloucester Working Men's Club case this Tribunal seem to have treated "dismissing" in the SDA 1975 (prior to its amendment to add a definition of "dismissal") as covered by the definition of "dismissal" in section 55(4) of the Employment Protection (Consolidation) Act 1978 is not persuasive or of assistance. Firstly, in our judgment, this point was not relevant to that case because there this Tribunal was concerned with a notice of dismissal given by the employer and there would not have been an issue whether it was covered by the phrase "by dismissing her" in the SDA 1975. Second, in our judgment, this Tribunal were referring to section 55 of the Employment Protection (Consolidation) Act 1978 primarily for its definition of "act complained of" and it appears highly unlikely that the issue whether the definition of "dismissal" in that section applied to the SDA 1975 was an issue that was raised. Third, it is plain that that definition of "dismissal" did not apply expressly to the SDA 1975 and, in our judgment, this Tribunal were wrong to apply it indirectly and this view is confirmed by the statutory history and background both before and after the Gloucester Working Men's Club case.[46]Further in our judgment these two cases do not provide any assistance on the second issue raised on this appeal (i.e. when was the "act complained of" done in respect of a constructive dismissal) because they are dealing with a different situation.[47]The cases of Reed and another v Stedman (which was referred to by the Employment Tribunal in paragraph 16 of the Extended Reasons) and Cast v Croydon College deal with the issue when the "act complained of" was done in respect of a claim under the 1975 (as amended) based on constructive dismissal.[48]In our judgment those cases are not directly relevant to the first question raised on this appeal because they concern events after the 1986 amendment to the SDA 1975 which expressly includes "constructive dismissal" within the references to "dismissal" in the SDA 1975. Their indirect relevance on this point arises because of their treatment of the question when the "act complained of" was done.[49]The Cast case and the Reed case appear to conflict on the point when the "act complained of" was done.[50]The Cast case is a decision of the Court of Appeal and it is not mentioned in the later decision of this Tribunal in the Reed case. In paragraphs 49 to 51 of his judgment in the Cast case (at [1998] IRLR 318 at 324) under the heading "Dismissal as 'the act complained of'" Auld L.J. says this:
"Miss Williams submitted as a further alternative that 'the act complained of' under s.63 was the forcing of Mrs Cast to give up her employment because she was not permitted to work part time, and thus that time ran from 6 July 1993 when her employment ceased. She relied on the relevant conduct relied on by Mrs Cast in her initial formulation of complaint, namely dismissal, as provided for in s.6(2)(b), 'dismissing her or subjecting her to any other detriment'. She referred to the Employment Appeal Tribunal's apparent reliance, in the passage from p.4 of its judgment that I have set out, on 26 March 1992 as the date when the appellant suffered detriment. Her argument was simply that the substance of the appellant's complaint was not the discovery in March 1992 that she would not be able to work part time after the birth of her baby but of the fact when it happened in the summer of 1993. Mr Carr maintained that the appellant's resignation in July 1993 was merely one of the consequences of the original allegedly discriminatory act, which he maintained was the refusal of 26 March 1992. She could have taken the decision to leave at any time during the intervening 15 months, or later, thus effectively determining her own period of limitation if her argument were correct. Such an outcome, he maintained, would be inconsistent with that for a claim of indirect discrimination by way of omission for which s.76(6)(c) provides, namely that a deliberate omission is to be treated as done when the person in question decided upon it. In my judgment, if Mrs Cast's case turned on the decision of Mr Holt, at the latest on 10 May 1993, as the trigger for her dismissal, Miss Williams' contention would in effect enable her to resurrect, contrary to the authorities, the argument that the consequence of an out of time 'one-off' act is 'the act complained of'. The question is 'What is the discriminatory act of which complaint is made?' I accept Mr Carr's submission that she cannot do that."
Auld L.J. therefore concludes that in respect of a non-continuing or "one-off" repudiatory breach relied on to found a constructive dismissal the "act complained of" is the breach and time begins to run for the date of the breach (and not the date it is accepted as putting an end to the contract) for the purposes of determining whether a claim has been brought in time.[51]In the Reed case the constructive dismissal was based on incidents of sexual harassment and it was found by the Employment Tribunal that the last incident thereof occurred in February 1996. The claim was presented on 13 September 1996. At paragraph 17 of his judgment Morison P said this (at [1999] IRLR 299 at 301): In this case the applicant was forced to leave her employ at Bell as a result of the unwanted actions of her manager. That amounted to a constructive dismissal and as such was a dismissal with s. 6(2) of the Act and accordingly the dismissal was itself an act of discrimination. The applicant's IT1 was therefore submitted within three months of the last act of discrimination, that is, her resignation.[52]A difference between these two cases and the present one (even when considering their indirect relevance) is that the SDA 1975 (as amended) includes "constructive dismissal" within the definition of "dismissal" which could be said to found the view expressed by Morison P that the constructive dismissal was accordingly an act complained albeit that the date of the constructive dismissal is determined by an act of the employee rather than an act of the employer. The DDA 1995 does not contain any such definition and, in our judgment, its existence in the Reed case weakens the indirect support that that case gives to the view that in the DDA 1995 "by dismissing him" includes a "constructive dismissal".[53]The Cast provides indirect support for the conclusion we have reached namely that in the DDA 1995 "by dismissing him" does not include a "constructive dismissal". As a matter of both authority and reasoning we prefer the Cast case. In our judgment it is not easy to see why the election (or act) of the employee in accepting a repudiatory breach is "an act complained of" by the employee. That act is the act of the employer (i.e. the alleged repudiatory breach), or adopting the question posed in paragraph 51 of the judgment in the Cast case, that act is "the discriminatory act of which complaint is made".[54]Additional reasoning in the Cast case is that even though a constructive dismissal is included expressly within s. 6(2) of the SDA 1975 (as amended) the "limitation or time" provisions should not be circumvented so as to allow an applicant to resurrect a "one off" act as an "act complained of" and thus as the foundation of a claim on the basis that it is alleged to be a repudiatory breach that triggers a later constructive dismissal. In our judgment if this reasoning is applied to the DDA 1995 not only does it provide strong support for the view that time should begin to run from the alleged repudiatory breach and discriminatory act, it also provides strong support for the view that when the DDA 1995 is looked at as a whole and purposively "by dismissing him" in s. 4(2)(d) thereof should not include a "constructive dismissal". In particular, in our view, the provisions and scheme of the DDA 1995 that impose a duty to take "reasonable steps", the right to claim for breach thereof and the concept of justification have the consequence that the reasoning in Cast supports the view that the trigger to a claim under the DDA 1995 should be the breach of such duty rather than a later election to treat it as terminating the employment. This approach has the consequence that claims can, and should be, made shortly after the matters giving rise to them occur and is thus in line with the short "three month limitation period" imposed.[55]In our judgment an employee who takes steps internally to achieve adjustments, or to remedy a breach of duty or contract should not be prejudiced by this approach. First because such matters could be continuing acts. Secondly, if they are not, in our view a proper application of the power to extend time should take into account steps that were taken internally to correct what the employee was complaining of and this is particularly the case if(a) from the employee's viewpoint a successful outcome of the internal process would result in the matter he or she was complaining about being rectified, or(b) the employer is told (and expressly or impliedly accepts) that the employee is awaiting the outcome of the internal process before making a claim (see Gonnella v The Benefits Agency EAT /1156/98 and Harvey paragraph L 560.01 and the cases referred to therein). Overall conclusion on the first issue[56]For the reasons set out above in our judgment as a matter of language, statutory history, authority and the underlying purpose of the DDA 1995 the phrase "by dismissing him" in s. 4(2)(d) thereof does not include a "constructive dismissal". The second issue[57]Having regard to our conclusion on the first point this does not arise. However if we are wrong on the first point, or if on a "constructive dismissal" the employee has been "subjected to any other detriment":(a) we prefer the Cast decision to the Reed decision as a matter or authority and reasoning, and(b) adopting and applying the Cast decision and its reasoning to the DDA 1995 we conclude that when an employee has been constructively dismissed the "act complained of" in paragraph 3(1) to Schedule 3 to the DDA 1995 is the alleged repudiatory breach by the employer. The third issue[58]This is the point referred to in paragraph 6 above that we raised. The Respondent did not seek to amend to add this point and did not adopt it with any enthusiasm. We can understand why (see for example Hutchison v Westward Television Ltd [1977] IRLR 69). In those circumstances we consider that we should not treat it as a ground of appeal that is before us and should say no more about it. Overall conclusion[59]The appeal is allowed and the decision of the Employment Tribunal is set aside. In its place we substitute a decision or order that(a) the Employment Tribunal has jurisdiction to hear the complaint of unfair dismissal, and(b) the claims by the Respondent (Miss Harley) under the DDA 1995 be struck out.