A recent constructive dismissal case – Lisboa v Realpubs Ltd – picks up the precedent set in a 1999 ruling – Wethersfield v Sargent – where an employee who is instructed to carry out a discriminatory trading practice may claim to have personally suffered because of the discrimination in question.
In the Wethersfield case the claimant, who had worked in a car hire company, had been instructed to tell any ‘coloured’ or Asian customers that cars were not available. She resigned and succeeded in her claim which was based the unlawfulness of her employers to instruct her to act in contravention the Race Relations Act 1976.
In the Lisboa case the claimant was an openly gay employee whose employers intended to transform the pub in which he worked from a ‘gay pub’ into a ‘gastro pub’. The employers instructed Lisboa to ensure that any ‘gay-looking’ customers were not placed in a prominent part of the pub and that only ’straight looking’ customers should be located in areas of high visibility.
Lisboa took personal affront at this, and other apparently homophobic policies, and resigned. He claimed constructive dismissal on the grounds of sexual orientation, and won his case at the EAT. He based his claim on the new provision of the Equality Act whereby his ‘perception’ of sexual discrimination (towards the customers, as opposed to towards himself) was sufficient to uphold his claim.
The difference between the two cases is that in the Lisboa case the claim was not based on an unlawful instruction but, rather, on a ‘perception’ he held with regards to discrimination. (NB: in ‘perception’ based cases the claimant need not possess any ‘protected’ characteristic – a non-gay employee might have brought Lisboa’s case to court with equal success.)
Ref: Wethersfield v Sargent (1999 IRLR 94 CA)
Lisboa v Realpubs Lts (UKEAT/0224/10)
