Miss C R Da Silva v Hard Rock Cafe UK Ltd: 2219483/2024

EMPLOYMENT TRIBUNALS

Case No 2219483/2024

Between

Miss C R Da SilvaClaimant

Hard Rock Cafe UK LtdRespondent

Before

Employment Judge Emery

In person for claimant

Ms C Ashiru (instructed by counsel) for respondent

Date 29 July 2025

JUDGMENT

The claimant's application to amend her claim to one of direct race and/or sex discrimination and harassment related to sex and/or race fails. The respondent's application to strike out the claim of unfair dismissal succeeds.

REASONS

[1]Reasons were provided at the hearing; written reasons were requested.

[2]The Issues for this hearing are set out in the Order dated 20 August 2024 (73 PH bundle):a. Clarify the claims

b. Deal with the claimant's application to amend her claim

c. Deal with the respondent's application for a strike-out or deposit Order.

d. If necessary, list a final hearing and make directions.

[3]The claimant was unrepresented at this hearing. She had the assistance of Tribunal appointed interpreters for the whole of the hearing. On the first day of the hearing, the interpreter’s screen often froze, requiring disconnection and reconnection. This inevitably slowed down the 1st day of the hearing.

[4]Other than this, the claimant did not express any difficulties with either understanding or answering the questions which were asked of her when seeking clarification on her claim and her proposed amendments. The claimant’s case and the application to amend

[5]We spent a significant part of day 1 considering the issues within the claim. The claimant had two periods of employment with the respondent: from July to December 2022, and from 2 August 2023 to 2 May 2024, her date of resignation. The claim form was submitted on 3 April 2024. It makes allegations in respect of both periods of employment.

[6]The claimant ticked only the unfair dismissal box at 8.1 of the ET1 form (9). Her particulars of claim say, to summarise the main allegations:a. In the 2022 employment, there was “abusive behaviour” by managers and another employee: including “shouting, mocking, and rude behaviour” towards employees who “do not speak English correctly”

b. On her return in 2023, the same behaviour persisted, leading her to complain to a Regional Manager about one manager’s “abusive behaviour”.

c. At a meeting with the Regional and General Managers, the claimant outlined some of her concerns about the abusive behaviour “such as rudeness, shouting... and making fun of her English, rolling her eyes and making gestures for her to speak more quick[ly]...”. she says that at a meeting the next day an explanation was given to her, that Europeans can be more direct than Brazilians; she says that “the meeting ended well.”

d. However, the rudeness got worse from November 2023; she says she was: i. “glared at” on 8 November 2023; ii. asked to leave early one day – having only worked under 3 hours that shift when other employees could have been asked who had worked longer hours that day; iii. not given 4 days holidays alongside 5 days she had already, despite being told she had 4 days available to take; iv. given wrong information in a rude manner about transport costs on Christmas Day; v. not given a bonus having scored 100% on a ‘mystery shopper’ feedback; vi. treated rudely by a supervisor “snapping her fingers” at her vii. On 8 January 2024 being told she had 9 and not 4 days holiday entitlement, and then being required to use this holiday at short notice on dates when she was ill and it was too short notice to travel to Brazil

[7]The claimant submitted a written grievance on 15 February 2024. She says that after her grievance she was treated poorly – including having shifts cancelled and reinstated on short notice, not being given holiday dates she requested; she was given a poor evaluation.

[8]The claimant resigned on 18 April 2024, she says having lost all trust and confidence in the respondent. While working her notice, the claimant says she experienced further poor treatment, including being given less shifts.

[9]Following her claim, on 12 August 2024 the claimant sought to add further information on her claim, in which she gives further details of the events set it at paragraph 6 above; she also refers to events after her resignation. She says that her employment was “marked by discrimination, rudeness reduced shifts, incorrect conduct...” and refers to her “rights as a woman and an immigrant...” (86-94).

[10]In the Agenda for the Case Management hearing, also dated 12 August 2024, the claimant clarified that the amendment was for “race and disability and harassment.”

[11]At the hearing, the claimant clarified that the ‘disability’ reference is to significant ill-health she experienced after her employment ended, which she attributes to the stress of events at work. On discussion and clarification of the law, the claimant accepted that she cannot bring a claim for disability discrimination.

[12]The claimant was asked questions by Ms Ashiru and the Tribunal about her claim and her proposed amendment. There were lengthy breaks to allow her to consider the questions. For example, the claimant was asked on several occasions to read her claim and specify what she is alleging as acts of discrimination, and on what basis – direct sex and/or race discrimination, or sex/race related harassment. We also discussed the legal concepts of ‘direct discrimination’ - the requirement to show less favourable treatment, and ‘harassment’ related to a protected characteristic.

[13]The claimant is of Brazilian origin. In her answers, she accepted that there were employees of Brazilian nationality who were “treated better” than her; for example, one of the managers she was complaining about is also Brazilian. She said that others from different nationalities were also treated better than she was.

[14]The claimant says that she has analysed these incidents and believes it must be about discrimination. She accepted that it was not related to race but argued “I think its nationality or gender.” But the claimant also said that “maybe others of the same nationality are treated the same way.” She said later in the hearing that she did not believe the treatment was based on nationality, “as other people of similar nationalities were treated better...”

[15]She said that the treatment may be based on gender, that also this “rudeness was normal” at her place of work.

[16]The claimant said that “everything started” when she decided not to accept their behaviour, that this could be “... related to gender, because I am a woman”. However, in answering this question, the claimant also said that two female colleagues, Joy and Juana, “did not know about the products, they never sold” but were not treated badly. She said, “there is discrimination but it cannot fit into any specific category, its discrimination about relationships at work, from the moment I did not accept his behaviour, the treatment got worse.”

[17]At the outset of day 2 of the hearing, the claimant confirmed she was pursuing an application to amend her claim to one of sex discrimination. She said that on careful analysis, she accepts that nationality discrimination would not apply, that what she “thinks applies” is gender discrimination. She said her claim was as follows: “It started as a personal issue against me, but because I did not accept this behaviour I believe it turned into discrimination against me as a woman”.

[18]On the issue of comparators for a direct sex discrimination claim, the claimant said that this was “difficult”, that there was one employee, Martin, who raised a complaint against his manager, but then left; he says that Joanna was “treated better” than she was, that she and Claudia were “treated differently”. She said that the “picture” was that employees “... who were closer to the managers were treated better, but people treated rudely or unkindly” if they were not. Closing arguments Respondent’s arguments

[19]Ms Ashiru argues that as there is no explicit or implicit claim of sex discrimination, the application must be an application to amend, to which the Selkent principles apply. While the factual allegations have not changed, there is nothing the claim which suggests that sex could be a factor in the claimant's treatment.

[20]In any event there is a significant delay between the claim and the application to amend, the application to add a claim of sex discrimination was made on the 1st day of this hearing, this was made because the claimant “could not fit her claim” into the Equality Act. But, based on her answers, “the claimant cannot have a reasonable basis for concluding these acts were of sex discrimination”. Her answer was that the issue was “personal” which subsequently turned into sex discrimination “this is inherently highly unlikely, none of the complaints are inherently related to sex”.

[21]While the claimant may suffer a prejudice, as if this amendment is not allowed the claim is effectively over, there is in effect little prejudice to the claimant as she is “struggling” on the merits to show she has an Equality Act claim. “If it’s a weak claim the claimant is not losing much by not being allowed to bring it.” The “underlying point” is that the claimant has struggled to identify the protected characteristic she is relying on (sex, or race, or nationality)

[22]In fact, the claimant has compared herself to women who were treated better than her and the Tribunal is entitled to take account of the likelihood of the claimant being able to prove the legal test – that she was subjected to less favourable treatment on grounds of sex.

[23]Conversely, there is significant prejudice to the respondent if it is allowed; it would have to defend a weak claim in circumstances where the claimant withdrew her grievance, it was not investigated, the events are18 months ago and there are unlikely to be records of “work issues and misunderstandings”.

[24]On all the claimant's allegations there are explanations: the claimant was asked to leave work early because there were no customers – other male and female employees were not asked to leave early – this is not on grounds of sex. On the mystery shopper, the claimant accepts there were “rule changes" because the restaurant had a lower mystery shopper percentage overall; again not because of sex. There’s nothing to suggest the holiday issue was because of sex. Claimant’s arguments

[25]The claimant argues that her allegations relate to all the issues she experienced at work but could not resolve. This is not based on misunderstandings, but on the fact that she was not liked by some managers; it's an environment of a lack of manners and respect, and consistent different treatment.”

[26]While she understands there was an “executive decision’ to withdraw mystery shopper bonuses, the claimant does not understand why they were reinstated within a month, having been told it would be 6 months. She does not understand why she asked to take holidays, was told ‘no’ and was then told she had 10 days she was required to take at short notice.

[27]The claimant accepts that there was no nationality discrimination, that other Brazilian staff members were treated better than her; but she says under the “legal framework” she suffered discrimination, these issues were not “misunderstandings”, they had a real impact on her; “this working environment is not normal”.

[28]The claimant said that gender was raised by her “to try to frame the discrimination I suffered”. she said she is "not sure” if according to the law this can be gender discrimination: “But this happened and it was directed to me, as a woman, this is undeniable”.

The law

[29]Relevant case lawa. Selkent Bus Co Limited v Moore,

[1996] ICR 836

: In deciding whether to exercise its discretion to grant an application to amend, the tribunal “should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it”. Factors, amongst others, which may be relevant include: i. the nature of the amendment, including the "... substitution of other labels for facts already pleaded to”; ii. the applicability of time limits: a new claim may be out of time, and it is necessary to consider whether the time limit should be extended, in this case the test if whether it is “just and equitable” to extend the time limit; iii. the timing and manner of the application: any delay in making the application may be a factor to take into account – why was it not made earlier? iv. the “paramount considerations” are the relative injustice and hardship involved in refusing or granting an amendment.

b. MacFarlane v Commissioner of Police of the Metropolis

[2024] ICR 22

EAT: it is permissible for a Tribunal to have regard to the prospects of success of a claim.

c. Dethling v Metropolitan Police Service

[2025] EAT 58

: Where a tribunal considers that a complaint sought to be added as an amendment would clearly have no reasonable prospect of success, the application may be properly refused. Conclusions on the application to amend

[30]I accept that the claimant’s case shows that she was treated badly in some respects at work. I accept that comments were made which show poor treatment, and I accept that this treatment appears to suggest that the claimant was bullied at work, as she believes. I accept that at a hearing where the claimant gave evidence on oath, she may well be able to prove this treatment occurred.

[31]I accept also that the claimant is seeking to substitute one legal label (unfair dismissal) for another – relying on the same facts as in her claim. I accept that the amendment application was made not long after submission of her claim, in advance of the first case management discussion; albeit that the legal label has changed from race to sex discrimination.

[32]All of these factors point towards allowing the amendment.

[33]The claimant has good arguable claims that factually, she was badly treated, and there may well have been very poor management. I accept that during the first employment period – in 2022 – the claiamnt did not have a good relationship [ with one of her managers, and this may well have been because of his attitude towards non-English speakers. But this was discussed and according to the claimant at least partially resolved during this period. The claimant then left her employment for 5 months.

[34]The fact the claimant left for 5 months: it is not just and equitable to include claims from the first period of employment which are so clearly out of time, and which on the claimant's case was partially resolved before she left. There is significant injustice to the respondent if claims about the earlier period of employment were allowed to proceed. There can be no continuing act of discrimination over the period she left that employment, and the claim in relation to the 2nd period is now based on gender, not race. There is no reason given why a claim was not made at the end of that first period of employment in relation to any alleged acts of racist conduct.

[35]On the second period of employment, the claimant now accepts that the issue is not one of race, given the way staff of all different nationalities were treated at different times – good and bad. On sex discrimination, the claimant pointed to different employees of different sexes being treated well, and poorly. She struggled to explain how this was less favourable treatment, i.e. how a man would have been treated better in the same circumstances.

[36]In fact, the claimant said that some men were treated badly, and some women were treated well: eg Martin and Joanna, above; that the main factor in this treatment was who got on with the managers – there was no suggestion from the claimant that this treatment was based on sex.

[37]I conclude that on the claimant's own arguments, she will be unable to show that her treatment was worse than how a male colleague or comparator would have been treated, or that this treatment was in any way connected with sex.

[38]I therefore do not accept that this amendment application has any legal merit; claims of direct sex discrimination or harassment related to sex are highly unlikely to succeed at a full merits hearing. Per the cases of MacFarlane and Dethling above, I can take account of the prospects of success of these claims in deciding this application.

[39]I accept the respondent’s argument that allowing an amendment would be highly prejudicial to it, having to defend a claim much of which is based on events 18 months ago and attend a hearing where the claim would stand little or no prospects of success.

[40]I accept that while the claimant may feel there is prejudice to her in her application to amend failing, I do not accept that there is significant prejudice to her: proceeding with a claim which stands little prospects of success is not a beneficial exercise.

[41]Having said that the claimant’s application to amend fails, I reiterate that it appears the claimant may well have a good argument that she experienced poor management, and was arguably bullied, which had a big effect on her. I hope that the respondent’s team present during this hearing will reiterate to managers that they must strive to act appropriately - without in or out crowds or favourites based on how staff get along with them at any workplace. This kind of workplace can become toxic; while this is not the same as a discriminatory workplace, employees can still become ill as a consequence. Respondent’s application to strike out claim of unfair dismissal

[42]The claimant accepts she has less than two years' service. The Tribunal therefore has no jurisdiction to hear this claim, which means it cannot proceed. It is therefore struck out. Approved by: