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Butler v Mellons Ltd & Anor - Discrimination, victimisation and constructive unfair dismissal [2011] EAT

(1) It is no answer to a victimisation claim to have established that the acts complained about were not, in fact, discriminatory - it is the complaints themselves that are the "protected act";

(2) Where claims of discrimination and constructive unfair dismissal overlap, a tribunal must take care to establish whether it is being claimed that the discriminatory acts alone that are alleged to breach trust and confidence, or whether further acts are alleged which do this. Only in the first case does a finding of no discrimination also answer the unfair dismissal claim.

Mr Butler was a store manager for 23 years. He became ill with depression, and was off work several months. He was declared fit again in January 2009, but his return to work was delayed by Mellons until April and he was not paid for that period; on his return he discovered that the manager of Mellons' other store was now overall manager and he had not been given the chance to apply for this post. He raised a grievance but this was rejected and eventually Mr Butler resigned.

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