A recent EAT case demonstrates how an employee may win a constructive dismissal claim if the employer fails to carry out a reasonable investigation because it assumes the employee has committed the misconduct alleged. It is also a useful reminder that, in cases of direct discrimination, it is important to identify the correct comparator before deciding whether an employee has been subjected to less favourable treatment.

The employee, Mr Austin, was Head of Finance at West Sussex County Council. In January 2012, a female colleague accused him of harassment. West Sussex began an investigation into the allegations, but mid-way through the investigation Mr Austin went on sick leave due to stress. In May 2012 he resigned from his job, having not returned to work from sick leave.

Mr Austin subsequently brought claims of constructive unfair dismissal and sex discrimination in the Employment Tribunal.

He argued that his dismissal was unfair because he had not been given a fair disciplinary hearing, West Sussex having effectively decided he was guilty when it learnt of his involvement in an earlier case of harassment at a previous employer.

The Tribunal found that Mr Austin had not been treated fairly during the disciplinary process.

• He had been suspended for a month but not given the reasons for his suspension.
• The investigation carried out by West Sussex had been shallow and one-sided. They had failed to provide Mr Austin with any documentation nor had they interviewed witnesses suggested by him.
• When Mr Austin’s mental health had deteriorated, causing him to go on sick leave, West Sussex had not taken his stress and anxiety into account. They had scheduled disciplinary hearings despite knowing that he was too ill to attend.
• During the investigation, Mr Austin had raised a complaint about being bullied by his line manager. However, West Sussex had not carried out any investigation into this complaint and, by this omission, had failed to follow its own policies on investigating complaints.

In relation to the claim of direct sex discrimination, Mr Austin argued that West Sussex’s failure to investigate a complaint he had lodged, while at the same time investigating the complaint of his female subordinate, was discriminatory due to his sex. The Tribunal agreed that West Sussex had discriminated against him.

West Sussex accordingly appealed the Tribunal’s decision to the Employment Appeal Tribunal (EAT).

The EAT found that the Employment Tribunal had correctly decided the constructive unfair dismissal claim in Mr Austin’s favour. The procedural defects in West Sussex’s disciplinary procedure were such as to break the term of mutual trust and confidence that should exist between employer and employee.

However, the EAT found that that the sex discrimination claim had been wrongly decided because the Employment Tribunal had misunderstood the nature of the comparator in Mr Austin’s claim for direct sex discrimination. The Tribunal had relied upon a hypothetical comparator which it took to be a senior manager whose male subordinate had complained about his conduct when she managed him during leave by her regular line manager.

This was the wrong comparator, decided the EAT. Instead, the Employment Tribunal should have used as comparator a woman with a previous history of having sexual harassment allegations made about them and who had been treated differently from Mr Austin.