Discrimination will nearly always be grounds for constructive dismissal, if the employee resigns in response to it. In Clements v Lloyds Bank, however, an age discriminatory remark was found not to have been the main cause of the employer’s breach of contract that led to his resignation. This was significant because compensation for ordinary constructive dismissal is capped, whereas compensation for discrimination-based constructive dismissal is not.
Mr Clements was in his fifties. His employer was attempting to resolve problems with his performance by moving him to a new role. During the course of one of their meetings, his manager twice remarked “you’re not 25 any more” (later denying saying this).
Over the course of the following few months Lloyds heard and rejected Mr Clements’ grievance and announced that someone had been appointed to a role above him, meaning that he had been demoted. Six months after the discriminatory “25” comment, Mr Clements resigned.
The Employment Tribunal held that he had been constructively dismissed because of a course of action which accumulated and resulted in the “last straw” of the demotion announcement. But he didn’t resign because of the ageist remark of six months earlier. Far more had happened by the time of the resignation. While the “25” comment was an act of age discrimination, it didn’t cause his constructive dismissal.