No, held the EAT in Timothy James Consulting v Wilton.
The Claimant had a successful career in the recruitment industry and joined Timothy James, a smaller business.
Tensions arose, and several incidents occurred involving a director, Mr O'Connell, with whom the Claimant had previously had a personal relationship. Amongst other things, the Claimant was subjected to "a tirade of criticism" and described as "a green eyed monster". This was with reference to an alleged jealousy of another female colleague with whom Mr O'Connell had now formed a relationship. The employment tribunal concluded that the treatment afforded to the Claimant was because she had previously had a relationship with Mr O'Connell. It was therefore related to the protected characteristic of sex. The employment tribunal found three such incidents of sexual harassment.
In the end, the Claimant resigned, claiming constructive dismissal. The employment tribunal also found that the constructive dismissal was, in itself, an act of harassment under the Equality Act 2010. The EAT disagreed on this point. On a correct interpretation of the Equality Act, an act of constructive dismissal does not, in itself, fall within the meaning of harassment.
The employment tribunal made an order of £10,000 for injury to feelings for the harassment that did occur. It went on to gross this up to take into account income tax. The employer appealed on the grossing up point. The EAT upheld the appeal. On the true construction of the Income Tax (Earnings and Pensions) Act 2003, an award for injury to feelings under the Equality Act 2010 is not liable to income tax. The EAT relied upon a decision of HHJ McMullen QC in Orthet Limited v Vince-Cain [2005] ICR 324 in which the learned judge set out a lengthy and detailed consideration of the relevant case law and principles. This was to be preferred over contrary decisions of lower tribunals dealing with tax appeals.
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