Ms P McKenna v BP Express Shopping Ltd: 2300943/2020

EMPLOYMENT TRIBUNALS

Case No 2300943/2020

Between

Ms P McKennaClaimant

BP Express Shopping Limited RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Self

In person for claimant

Mr C Kelly - Counsel for respondent

Date 25 July 2022

JUDGMENT

[1]The Claimant was disabled pursuant to the Equality Act 2010 on account of her back condition at all material times.

[2]The Claimants’ claim lodged on 9 March 2020 is rejected pursuant to Rule 12 (1) (da) but the defect has been rectified and the Claim shall be deemed to have been presented on 20 July 2022.

[3]All disability discrimination claims and all age discrimination claims save for that referred to at 20(f) of the List of issues are dismissed because they have not been brought within the statutory time limit and it would not be just and equitable for time to be extended.

[4]The Age Discrimination claim at 20(f) is not well-founded and is dismissed.

[5]The claim that the Claimant has been unfairly constructively dismissed is not well founded and is dismissed.

REASONS

[1]On 9 March 2020 the Claimant issued a claim against the Respondent asserting that she had been discriminated against on the grounds of age and / or disability and that she had been the victim of “continual bullying / harassment / assault in the workplace”. The Claimant had been working as a Customer Service Assistant at the BP / M&S Store / petrol filling station based on Holborough Road, Snodland and she had worked there since 15 March 2016 in that role part time (24 hours per week).

[2]The claimant entered ACAS Early Conciliation on 26 November 2019 and it concluded on 11 December 2019. There was a second Early Conciliation Certificate which started on 20 January 2020 and ended on 27 February 2020.

[3]In her statement the Claimant reflected that she was now 65 years of age and all she wanted was a “non-taxing simple part-time job… but what I got was a living NIGHTMARE” (Claimant’s emphasis). The Claim Form is extremely general and in a stream of consciousness style which is not uncommon for a litigant in person. It is perhaps a little unusual as the Claimant informed us on a number of occasions that she is a former police officer who would have, no doubt, been trained in giving statements the purpose of which would be to demonstrate that there had been a breach of a statutory or common law crime. Whilst the Claimant used that background to support her position that as she had been a good police officer she would surely have been competent and skilled enough to do the job she was doing with the respondent it is unfortunate that that background does not seem to have assisted the Claimant in her preparation for this case and hearing.

[4]Despite the lack of particularity, the Respondent made as full a Response as they could and the matter came before EJ Corrigan on 21 September 2020 for Case Management. At that hearing the Claimant confirmed that her claims at that point were direct age discrimination and age-related harassment and direct disability discrimination, disability related harassment, failure to make reasonable adjustments and possibly a section 15 Equality Act 2010 (EqA) claim.

[5]The Claimant also indicated that she had resigned on 29 April 2020 and explained that she wished to add a claim of constructive unfair dismissal. The Claimant asserted that she was in her 60s when the allegations took place and she compared herself to colleagues in their 20s and 30s. The Claimant also indicated that she had a range of medical conditions which individually or collectively rendered her a disabled person under the EqA.

[6]The Claimant was ordered (para 6) to send the Tribunal an email setting out her intention to bring a claim of unfair constructive dismissal and “put in writing the basis of that claim” and to provide “in particular a list of the conduct by the Respondent that she says caused her to resign.” That appears to me to be a straightforward request which the Claimant as the person who had resigned would be best placed to answer.

[7]In addition, the Claimant was asked for further information about her disability and age claims seeking clarity of the when, who and what of each claim. There was also a claim for unpaid sick pay for which further information was sought.

[8]At this point the Claim is progressing in a similar fashion to many other claims brought by litigants in person and the Claimant was also asked to supply medical evidence and a disability impact statement. There was to be a further hearing (an Open Preliminary Hearing -OPH) on 11 January 2021 at which any amendment application would be considered and the final list of issues drawn up.

[9]On 12 October 2020 the Claimant sent the Tribunal a copy of her resignation email dated 29 April 2020. That email was attached to an email to the Tribunal which expressed that it was “as per paragraph 3 of the (recent) Judgment”. I have no doubt that it did not comply in that it did not identify any reasons why an amendment should be permitted, did not clearly identify the basis of the constructive dismissal claim and did not list the offending conduct. Again, the Respondent responded as best they could to what had been pleaded. Generously, they did not oppose the constructive unfair dismissal claim being added although the basis for the Claim had to be largely guessed at.

[10]The Claimant appears to have ignored the Order for Further Particulars in respect of the discrimination claims, although it is possible she responded via a document that was not before the Tribunal.

[11]On 18 December 2020 EJ Hyde allowed the amendment to add the unfair dismissal claim on the papers. The 11 January OPH was vacated and a new date was set at which the Tribunal would consider whether or not to strike out any of the claims which had not been particularised adequately or on the basis that they had no reasonable prospect of success. There was also an application to further amend the claim to add a whistleblowing claim which would also be considered at that next hearing.

[12]That hearing took place before EJ Robinson who: a) Rejected the application to add a whistleblowing claim (it is not clear if that was a detriment claim or a dismissal claim); b) Confirmed that the Respondent accepted the Claimant as a disabled person in respect of Type 2 diabetes; c) Warned the Claimant against a “grapeshot “ approach to litigation i.e., throwing everything she can against the Respondent with the hope that something would stick; d) Warned the Claimant that she was on the cusp of having claims struck out as, firstly, she had failed to comply with the Orders of EJ Corrigan and, secondly, even on what she had said to EJ Robinson “some claims would have little or no reasonable prospect of success because of the vague way that they had been outlined”; e) Notwithstanding all of that, EJ Robinson was prepared to give the Claimant one more chance to put her Claim in order.

[13]He recorded that “The claimant’s constructive unfair dismissal claim is pleaded on the basis that the starting point is the November 2019 meetings concerning her absences. The last straw is the e-mail she received from Jo Beaumont dated the 27th of April 2020”.

[14]EJ Robinson then asked the Claimant to particularise certain alleged acts of discrimination (16 of them) which seem to have been identified from a document I do not have before me and was not within the bundle. The main issue for EJ Robinson seems to have been the vagueness of the allegations.

[15]EJ Robinson then determined that neither the Claimant’s foot condition nor her eyesight was a disability as defined by the EqA but that he was prepared for the Claimant to provide a disability impact statement in respect of her back condition. EJ Robinson reserved the next OPH to himself. There has been no appeal or request for a reconsideration of any of the decisions made at that hearing.

[16]At the 20 April 2021 hearing EJ Robinson recorded that the Claimant had failed to deal with ether EJ Corrigan’s orders or his Orders in an appropriate manner. EJ Robinson reiterated the basis of the constructive dismissal claim from the previous hearing. He then struck out a substantial number of claims and limited other claims.

[17]EJ Robinson impressed upon the Claimant the role her witness statement would take at the final hearing and that it would stand as her evidence. The central importance of the witness statement and the need for it to cover all of the issues in the case should have been quite clear.

[18]At the start of this hearing there was still a substantial amount of detail required in order to try and understand the Claimant’s case in full. There were still deficiencies in the List of Issues with the Claimant having failed in making her claims clear enough in terms of when alleged acts of discrimination happened, which is vital in respect of any time limit issues and identifying the perpetrators of the alleged acts with enough particularity to allow the Respondent to prepare comprehensively. The reason why this was not complete was the Claimant’s consistent failure to provide the necessary particularisation despite being requested to do so and being given chances to do so.

[19]The Claimant was given yet another opportunity to clarify matters on the morning of the hearing. The Claimant did not seem to wish to / or be able to focus on the task in hand nor did she appear to be prepared to take direction asserting that by asking for such matters to be clarified and by bringing her back to the task in hand when she deviated off onto complaining in general terms about the Respondent, the Employment Judge was being “brusque”. The Tribunal considers that “business-like and focussed” would be a more accurate description.

[20]The Claimant was given from 1045 to 1130 to go through the List of Issues and to provide answers to the gaps in that List of issues. At around 1130 the Claimant returned and began to provide additional allegations as opposed to particularisation of the claims which were down in a nascent form. It was explained to the Claimant that if she wished to proceed she would need to make an application for an amendment to the claim which may lead to a postponement if successful. The Claimant also made it clear that she did not accept previous decisions by Judges in Preliminary Hearings and it was explained that the proper course would have been to seek a reconsideration / appeal those decisions at the time. The Claimant became tearful but after a short break elected not to seek an amendment to her Claim.

[21]At just after Noon on the first morning the Tribunal decided that even though the Claimant had had ample opportunity to provide the details required it was unlikely that she would have the capacity to do so on a face-to-face basis and that time would have to be given with guidance as to what she was required to complete. The Employment Judge drafted a list of questions which required answering and the Claimant provided a Response which the Respondent incorporated into the List of Issues so far as the answers pertained to existing claims. The result is set out later on in this Order and is by no means complete but it was viewed as the last chance for the Claimant to do what she should have done many months earlier.

[22]It is estimated that the Tribunal would have read for half of the day in any event and so approximately half a day of the hearing was lost on account of seeking necessary clarification of the Claimant’s claim. The evidence was heard over Day 2 and Day 3 and closing submissions on the morning of Day 4. Deliberations and drafting took place on the remainder of Day 4 and on the morning of Day 5 and a full oral Judgment based upon comprehensive notes was delivered on the afternoon of Day 5. Those comprehensive notes have been reworked into these Reasons as the Claimant requested written reasons immediately after Judgment had been given. The Claimant has since sought a reconsideration but was told that such a request was premature as the written reasons had not been provided.

[23]The Claimant gave evidence on her own account and we heard evidence from Mrs Palmer-Lynch, Ms Hickson Ms Gehrke De Rose for the Respondent. All witnesses were cross examined and provided written witness statements. The Claimant’s witness statement ran to 192 paragraphs and did not refer to the bundle at all. There was a substantial bundle of documents and we made it clear to the parties that we would not read the whole bundle but would consider such documents as we were taken to by the parties and so to guarantee that we had seen documents the parties would have been fully aware of what they needed to do. This point was reiterated on a number of occasions particularly for the Claimant’s benefit. As it turned out there was a comparatively small part of the bundle we were taken to.

[24]The statement does not align itself with the issues in the case and nor are incidents dealt with in any logical order. Attached to the statement was a tenpage document with a number of headings with dates with a number of comments and reference to text messages. Whilst this was taken as part of the Claimant’s statement, the Claimant made little effort in cross examination to utilise any of the information and indeed at no time gave any assistance to the Tribunal as to how we might use the cryptic information to find fact or determine issues.

[25]The List of Issues finally agreed by the parties is as follows: TIME LIMITS 1. Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010 so that the Tribunal has jurisdiction to hear them? The Tribunal will decide:a. Was each complaint made to the Tribunal within three months (plus any extension under the early conciliation provisions) of the act or omission to which the complaint relates? The Respondent submits that any allegations which arose prior to 20 October 2019 would be out of time and, therefore, the Tribunal has no jurisdiction to consider them.

b. If not, does the complaint relate to conduct extending over a period of time?

c. If so, was the complaint made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

d. If not, was the complaint made within a further period that the Tribunal thinks is just and equitable? CONSTRUCTIVE UNFAIR DISMISSAL 2. What term of the contract of employment does the Claimant allege has been breached by the Respondent? 3. Did the Respondent breach that term? The Tribunal has noted at paragraph 12 of the Case Management Summary dated 24 April 2021 that the starting point for the constructive unfair dismissal claim is the November 2019 meetings and the last straw is Jo Beaumont's email of 27 April 2020.. As such, the Tribunal is to determine, did the following acts/admissions occur and, if so, did they constitute fundamental breaches of the Claimant's employment contract by the Respondent: a. Whilst the Claimant was on sickness absence she received a letter dated 10 March 2020 from BP telling her that her employment was at risk or giving her notice to attend a disciplinary hearing in relation to her sickness absence. b. The Claimant being forced into two disciplinary meetings on 30 November and 19 December 2010 despite sending texts to managers about her mental anguish. 4. If the Respondent breached the Claimant's contract of employment, was such breach repudiatory, entitling the Claimant to resign and claim constructive unfair dismissal? 5. Did the Claimant: a. Waive or otherwise affirm the alleged breach(es)?; b. Delay too long before resigning? and/or; c. Resign for a reason or reasons other than the alleged breach(es)? DISABILITY DISCRIMINATION Preliminary considerations – Disability 6. Was the Claimant disabled within the meaning of section 6 of the Equality Act 2010 at the relevant time(s)? The Respondent accepts that the Claimant was disabled in respect of her type 2 diabetes but denies that she was disabled in relation to her alleged back injury, which has been identified as three prolapsed discs and sciatic nerve impingement. The following issues to be determined, therefore, relate solely to the alleged back injury. 7. Did the Claimant have a physical or mental impairment? The Claimant relies upon the physical impairment of her alleged back injury. 8. If so, did that impairment have a substantial adverse effect on the Claimant's ability to carry out normal day-to-day activities? 9. If so, was that adverse effect long-term? In particular, when did it start and: a. Has the impairment lasted for at least 12 months? b. Is or was the impairment likely to last at least 12 months or the rest of the Claimant's life, if less than 12 months? 10. Were / are any measures being taken to treat or correct the impairment? 11. But for those measures would the impairment be likely to have a substantial adverse effect on the Claimant's ability to carry out normal day-today activities? Failure to make reasonable adjustments (sections 20 and 21 of the Equality Act 2010) 12. In respect of the Claimant's type 2 diabetes and/or the Claimant's alleged back injury (if the Tribunal determines that the latter amounts to a disability), did the Respondent fail to comply with its duty to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010? To determine whether that duty was engaged: a. What is the provision, criterion or practice (PCP) relied upon?. In relation to the Type 2 diabetes, the Respondent understands the alleged PCPs to be that: i. the Claimant was required to be stood at the till for the duration of her shifts; ii. the Claimant was required not to eat or drink at the till; iii. the Claimant was required to work half her time on the till and half her time on the shop floor some time in 2018; and iv. the Claimant was forced to work on the till without ad-hoc breaks. b. Were the PCPs in fact imposed on the Claimant? c. Did the PCPs place the Claimant at a substantial disadvantage when compared with non-disabled employees? d. In respect of the back injury, did the Respondent have actual or constructive knowledge of the constituent facts of that disability at the material time(s)?

e. Did the Respondent know or, if not, could it reasonably have been expected to know, that the PCPs alleged placed the Claimant at the substantial disadvantage? Type 2 diabetes 13. In respect of the Claimant's type 2 diabetes, if the Claimant was subject to a PCP that placed her at a substantial disadvantage when compared with nondisabled employees: a. Did the Respondent make reasonable adjustments? b. Were there any adjustments which the Respondent ought reasonably to have made and they failed to make? The Claimant states that she should have been given help at the tills for her diabetes including the following which she alleges would have been reasonable adjustments: i. being allowed to take regular breaks to control her insulin levels and to have a snack, in the same way smokers were allowed to take 'fag breaks'; ii. being allowed drinks at the till; iii. being allowed toilet breaks even when the tills were busy; iv. the Respondent taking into account her high potassium levels/lowered kidney function; v. being allowed to go and collect her insulin when the Claimant forgot it on occasion without Toni the Duty Manager “tutting” and saying “well if you have to I suppose you have to”; vi. not allowing Janice to change her lunch break as a priority above the Claimant's diabetes needs. 14. The Claimant has not identified the relevant dates of the allegations above, in line with the Orders of Employment Judge Robinson dated 18 February 2021 and 24 April 2021 or in the request by EJ Self. 15. It is further noted the Claimant commenced a period of sickness absence on 22 December 2019 and did not return to work prior to her resignation on 29 April 2020. Back Injury 16. In respect of the Claimant's back injury, if the Claimant was subject to a PCP that placed her at a substantial disadvantage when compared with nondisabled employees: a. Did the Respondent make reasonable adjustments? b. Were there any adjustments which the Respondent ought reasonably to have made and they failed to make? The Claimant states that the following would have been reasonable adjustments: i. the Claimant should have been provided with a stool as she stood for 7.5 hours at the till. The Claimant relies on other younger staff allegedly being allowed a stool, including: an employee named Jordan who was given a chair when he had a bad back; a female colleague who had a 'stomach problem' being given a seat whilst working with the Claimant; and a female member of staff at the Tudor branch sitting at the till; ii. the Claimant should have been permitted to work half on the shop floor to help her; iii. the Claimant should not have had to carry out jobs that involved bending down, kneeling or required heavy lifting, where a younger person could have carried out, according to the Claimant, the heavy work, instead of the Claimant including allegedly: 1. having to kneel and drag items from the back of the ‘bread section’ shelves, which went to the floor, to look at small expiry dates in bright glaring lights; 2. having to clean shelves which were too low down, where the Respondent could have asked a younger, fitter member of staff to do the bottom shelf or top shelf of fridges; 3. when the Claimant asked for a knee pad, being told she was ‘the only one that uses it’. However, when she came on shift, the knee pad always went missing and she spent 15 minutes searching for it first; 4. Janice and Jeannette deciding that for the cigarette drawers behind tills, the cellophane surrounding should be removed, despite this being the only part the Claimant could differentiate from the black packets, making it hard for the Claimant to bend further to pick up the boxes to try to make out the brand; and 5. things being done to cause problems for the Claimant and the managers not stepping in to help the Claimant to make her work life easier by making simple changes. 17. It is noted that the Claimant has not identified the relevant dates of the allegations above, in line with the Orders of Employment Judge Robinson dated 18 February 2021 and 24 April 2021 and the Request of EJ Self, for the purposes of this part of the claim. 18. It is further noted the Claimant commenced a period of sickness absence on 22 December 2019 and did not return to work prior to her resignation on 29 April 2020. AGE DISCRIMINATION Direct Discrimination 19. Who is the Claimant's comparator (actual or hypothetical), whose circumstances must be materially the same as the Claimant's? 20. Did the Respondent treat the Claimant less favourably than the comparator was or would have been treated? The acts of less favourable treatment alleged by the Claimant are as follows: a. The Claimant alleges Astra asked her ‘how old are you?’ b. The Claimant alleges Janice/Rebecca and others whose names have not been provided commented ‘Why are you still working?’ c. Alyson, Astra, Laura making comments about the Claimant such as ‘like my mum', Hannah with Ashley commenting ‘it’s hard cos it’s like telling my mum off’. the Claimant does not recall the dates of the alleged comments d. . In a text message dated 28 October 2019, Laura Hickson commented to Claimant "‘People here need to be kind to each other, simple as that . . I wouldn’t want my mum or Nan if she were here being here upset so I don’t want you either . . ". e. Intimation by younger staff; was ‘why is she here at her age'. The Claimant has not confirmed the names of the staff, the dates or what intimation was done.

f. Being 'hounded out' and forced to resign. The Claimant has not confirmed the names of the individuals or the dates of the allegation.

g. Having to carry out jobs that required bending down, kneeling or heavy lifting, where a younger person could have carried out the work instead. 21. It is noted the Claimant commenced a period of sickness absence on 22 December 2019 and did not return to work prior to her resignation on 29 April 2020. 22. If so, was the less favourable treatment because of / on the grounds of the Claimant's age, contrary to the Equality Act 2010? Harassment 23. Did the Respondent engage in unwanted conduct? The Claimant's allegations of harassment are set out at paragraph 20 above. 24. If so, was the unwanted conduct related to the Claimant's age? 25. If so, did the conduct have the purpose or effect of: a. violating the Claimant's dignity; or b. creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? REMEDY Constructive Dismissal

REMEDY

[26]If the Claimant was constructively unfairly dismissed, what compensation, if any, should be awarded?a. What financial losses has the discrimination caused the Claimant? Has the Claimant taken reasonable steps to mitigate any losses e.g., looking for / securing another job? If not, for what period of loss should the Claimant be compensated for?

b. Is there a chance that the Claimant's employment would have ended in any event? Should her compensation be reduced as a result and, if so, by what amount? Discrimination

[27]Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?

[28]What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that? Further Background to this Matter26. The Claimant has clearly not found the Tribunal process an easy one. She has consistently failed to provide the detail of her claim that was asked and her witness statement is a further stream of consciousness that, at times, has only a tangential relevance to the issues in the case. The Tribunal has sought to assist the Claimant by seeking to keep her on track and in line with the issues when she was both answering questions and asking them. The Claimant did not always take this advice well but generally this would lead to an initial short refocus before veering off again onto alternative paths. It was important to try and focus the Claimant in this way, because the Respondent did consistently focus upon the issues we were obliged to determine and so our attempts to keep the Claimant focussed was an attempt to place the parties on an equal footing and to keep the Claim proportionate and thus conduct the hearing in keeping with the overriding objective.

27. Regularly, the Claimant has been overwhelmed by the process / questioning both of her and by her and at all times we have permitted the Claimant adequate time to compose herself and to be able to give the best of herself. At times after breaking down in tears the Claimant indicated that she wished to press on but the Tribunal consistently allowed breaks to enable the Claimant to compose herself. The Tribunal has availed itself of the opportunity to ask questions of witnesses as well and have sought at all times to give the Claimant the opportunity to give the best account of herself in these proceedings. There were times when the Claimant did not address certain issues of importance to the Respondent’s witnesses and again in keeping with what we considered was the overriding objective and in accordance with our obligations under Rule 41 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 we intervened. 28. There is a great deal (in terms of quantity) to the Claimant’s claims and it could be said that the Claimant with skilled representation could have presented her claims in a more cohesive and easily understood way and, indeed, it is quite possible that skilled representation may have meant that certain allegations could have been more properly suited to other sections of the Equality Act 2010.

[29]This is a matter that has been going on for a long time and has had the benefit of no less that three Case Management Hearings at which the issues have been gradually carved out bit by bit. Several parts of the Claimant’s case have been struck out and the Claimant has had every opportunity to correct any misunderstandings of the issues that have been allowed to proceed upon receipt of each order.

[30]This Tribunal did not consider that it was incumbent upon them to recast the Claimant’s case which successive tribunals had carved out with the assistance of the Claimant. To do so would not have been fair to the Respondent at such a late stage and would inevitably led to further delay and possible applications about the conduct of the litigation. We are quite satisfied that the Claimant has had every opportunity to put forward the claim that she wanted to, for good or ill, in the way that she explained to successive Judges. She has had the chance to correct any previous misapprehensions and, if she felt appropriate, to appeal any case management decision that had been made. There comes a time however when the hearing just needs to be heard.

[31]One example was that the Claimant bridled at the restrictive time span in the issues which gave rise to her constructive dismissal claim. As explained above that time span relates to information recorded by EJ Robinson on two occasions which the Claimant did not seek to correct. Whilst it is possible that EJ Robinson misunderstood what was said to him by the Claimant we consider that it is more likely that he simply took down what the Claimant expressed as the Claimant did not seek to correct it over a substantial time period.

[32]As stated above we indicated to the Claimant that she was entitled even at this stage to apply to amend and that if she did we would consider the application on its merits. The Claimant was also told of various possible consequences if the application was successful including the possibility that a postponement of the case may be required and that if that was the case then it was possible that an application for costs may be made for the costs thrown away. The Claimant was told that these were only possibilities and that we had a wide discretion but it was felt that she needed to be aware of what she may be launching into. Ultimately the Claimant decided to proceed with her constructive dismissal claim as understood by EJ Robinson and declined to make any application to amend any of the discrimination claims either. She was given a final chance on the first day to particularise her case but that was only partially successful.

[33]At all times in this hearing conscious that there was a marked inequality of arms in terms of representation and ability to communicate clearly as against a set of issues that had been agreed we have been particularly mindful of the overriding objective and in particular have sought to comply with our obligation under Rule 41 of the Tribunal Rules whilst at the same time being mindful of our need to be fair to the Respondent as well. We should also like to record that Mr Kelly who represented the Respondent has been scrupulously fair during the hearing both in the manner he approached cross examination and his close adherence to the duties he owed to the Tribunal by, on occasion, reminding the Tribunal of matters that could be said to be contrary to his case. Early Conciliation Issue

[34]During the course of the hearing an issue of jurisdiction arose in relation to Early Conciliation. Although we were not taken to them in the bundle it became clear that there had been two Early Conciliation Certificates as set out at Paragraph 2 above. The Claimant explained to us that she realised that she was out of time with bringing her claim taking into account the first certificate and so decided that she would enter early Conciliation a second time in order to circumvent the position she found herself in. There is clear case law (HMRC v Serra Garau

UKEAT/0348/2016

) that this is not permissible and that the second certificate is a nullity. For the avoidance of doubt the first certificate that ran from 26 November 2019 to 11 December 2019 is the valid certificate.

[35]That would have an effect on the time limits applicable to this case but unfortunately the problems for the Claimant did not stop there. It was noted that the Claimant had lodged the Claim but had placed the invalid ACAS EC number (the second number) on the Claim Form.

[36]Under Rule 10 and Rule 12 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (the Rules) where there is reference to an early Conciliation Number it has been found in the EAT that the correct EC number must be shown and not any EC number (Sterling v United Learning Trust EAT 0439/14). The Claimant’s Claim Form was therefore in breach of Rule 12 (1) (da) of the Rules existing at the date of this hearing.

[37]Rule 12(1)(da) and rule 12(2ZA) were introduced into rule 12 by regulation 7 of the Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 (‘2020) Regulations’).

[38]Regulation 1(2) of the 2020 Regulations deals with their commencement as follows: (2) Regulations 19, 20, 21 and 22(2) come into force on 1st December 2020 and the remainder of these Regulations come into force on 8th October 2020.

[39]Regulation 22 of the 2020 Regulations provides for the following transitional provisions:(1) Subject to paragraph (2), these Regulations apply in relation to all proceedings to which they relate.

(2) The amendments to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 made by these Regulations apply when the requirement for early conciliation is satisfied in accordance with rule 1 of the Schedule to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 on or after 1st December 2020.

[40]Rule 6 of the ET Rules of Procedure 2013 provides that: “A failure to comply with any provision in these Rules (except rule 8(1), 16(1), 23 or 25) or any order of the Tribunal does not of itself render void proceedings or any step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it considers just, which may include all or any of the following – (a) Waiving or varying the requirement.

[41]It follows from the above that when the Claim was lodged in March 2020 Rule 12 (1) (da) did not exist.

[42]The Tribunal have determined that it is open to them to consider the law as it is as of today’s date and the Respondent adopted a neutral stance to the issue. The reasons for coming to that conclusion which favours the Claimant is as follows.

[43]From 8 October 2020 Rule 12 (1) (da) and Rule 12 2ZA came into force 12.— Rejection: substantive defects (1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be— …….. (da) one which institutes relevant proceedings and the early conciliation number on the claim form is not the same as the early conciliation number on the early conciliation certificate;….. (2ZA) The claim shall be rejected if the Judge considers that the claim is of a kind described in sub-paragraph (da) of paragraph (1) unless the Judge considers that the claimant made an error in relation to an early conciliation number and it would not be in the interests of justice to reject the claim.

[44]The purpose of these provisions is to try and avoid draconian consequences for minor administrative errors and to allow some form of flexibility in the event that an incorrect EC number is placed on the Claim Form. It is a commonsense provision which should have been included by the draftsman from the outset and would have saved much time at both first instance and appellate level.

[45]Compliance with Early Conciliation is a jurisdictional matter. If a Claimant has not complied then the Tribunal has no jurisdiction to hear the Claim whatever its merits and the point can be taken at any time. Whilst it is envisaged in the Rules that the consideration of this point will take place at the outset just after receipt of the Claim Form because the provisions at Rule 10 and Rule 12 are under the sub-heading “Presenting the Claim”. Rule 8 describes how to present a claim and then Rules 10 and 12 provide grounds for rejecting the Claim.

[46]Eady J as she now is commented at Para 42 of E.On Control Systems Limited v Caspall (

UKEAT/0003/19

) that consideration of the issue was not limited to that stage and arises to be considered at whatever point of the claim that it comes before a Judge.

[47]In our view we have to consider the Regulations which are in place at the time that the point is being considered. We find that the transitional provisions contained in regulation 22 of the 2020 Regulations do not limit the effect of the amendment made by regulation 7 to insert rules 12(1)(da) and 12(2ZA) by reference to the date of the presentation of the claim but simply refer to “all proceedings to which they relate”.

[48]If there was a desire to limit the effects only to Claims that were lodged after 8 October 2020 then that could quite easily have been achieved by the statutory draftsman but it was not. That is consistent with the explanatory note to the 2020 Regulations that “The primary impact of these changes is to reduce unnecessary bureaucracy in providing access to justice through the employment tribunal system.” and to address the multiple observations of appeal Judges lamenting the satellite litigation.

[49]It would be a strange frustration of the purpose of the amendments made by the 2020 Regulations if they preserve the “unnecessary bureaucracy” in respect of claims presented pre-8th October 2020 without any obvious or sensible reason to do so. We can see no sensible or obvious reason.

[50]In those circumstances we will apply the law as it stands as of the date of this hearing which has been in place since 8 October 2020.

[51]As Section 12 (1) (da) of the Tribunal rules applies i.e., that the Claim institutes relevant proceedings and the EC number on the Claim form is not the same as the number on the EC Certificate then we need to consider Rule 12 (2ZA). We do not consider that the Claimant has simply made an error in relation to the early conciliation number as she told us she took out a second certificate deliberately and specifically to circumvent what she perceived as being time limit issues. In those circumstances and after all the above we do not consider that she has made an “error” as it was part of a deliberate course of action.

[52]This issue came to light following the tribunal’s reading of the matter. One cannot unsee what is there, but we have sought to take a practical step as all parties were here for the final hearing of a case which had not hurried to the final hearing, by accepting the Claimant’s representations as being a reconsideration application and Rule 13(4) is engaged. We find that the original rejection was correct but the defect has been rectified with the result that the Claim will be treated as being presented on 20 July 2022. Time Limit Issues

[53]We did not deal with the issue of time limits as a preliminary point but we heard all of the evidence before coming to our conclusions. Having said that the decisions which we made in relation to time limits meant that not all matters needed to be looked at substantively and so it is appropriate, in our view to deal with the time limit issue first in this Judgment.

[54]The constructive unfair dismissal claim was permitted by amendment and there are no time limit issues in respect of that claim. There are major issues to consider, however in respect of time limits relating to the discrimination claims which are set out in the List of Issues.

[55]The relevant ACAS EC was between 26 November 2019 and 11 December 2019 and the Claim was initially lodged on 9 March 2020, although we have found today that taking into account EC matters the actual date of receipt should be deemed to be 20 July 2022.

[56]Clearly taking the later date then all discrimination claims are out of time by a substantial margin. We consider that part of the circumstances surrounding the issuing of the Claim is when the Claim was lodged initially and so that is still relevant. The Claimant was in EC for 16 days and we calculate that any incident of discrimination prior to 24 November 2019 would have been out of time.

[57]Dealing first with the Disability Discrimination issues the dismissal has not been asserted as an act of Disability Discrimination. In any event, none of the matters that make up the alleged breach of the implied term of trust and confidence are replicated in the Disability Discrimination allegations. There is also no crossover in the constructive dismissal with the Age Discrimination claims

[58]We have considered the claims relating to the alleged failures to make reasonable adjustments which are set out in the List of Issues. Despite being asked many times there is only a single allegation that by dint of the pleaded case, further particulars and witness statement that we have the Claimant has only identified a date for the reasonable adjustment of the stool for sitting behind the counter, which she identified as being refused by the employer on 25 September 2019 when the Claimant’s request for a stool was refused.

[59]The Claimant has been given every opportunity to provide dates and has failed to do so. She has provided no evidence at all that any of the reasonable adjustment claims have been brought within the time limit and therefore has not satisfied the evidential burden that any claims have been brought in time. As a consequence, the next issue to be determined is whether or not on the disability claims it would be just and equitable for time to be extended.

[60]The position is different so far as the Age Discrimination claims are concerned. In one of the Claims the Claimant does assert that she was hounded out and forced to resign and that this was an act of discrimination and so her resignation / dismissal was the last act of discrimination.

[61]The Claimant was asked to particularise this specific Claim so as to identify what the “hounding out” consisted of, at PH hearings before the final hearing and again was given a chance at the start of this hearing. She has failed to provide that information. Logically it appears that as she is claiming a discriminatory constructive dismissal the hounding out must be, in the absence of any further information, as per the constructive dismissal claim. Those acts are as follows: a) Whilst the Claimant was on sickness absence she received a letter dated 10 March 2020 from BP telling her that her employment was at risk or giving her notice to attend a disciplinary hearing in relation to her sickness absence. b) The Claimant being forced into two disciplinary meetings on 30 November and 19 December 2010 despite sending texts to managers about her mental anguish.

[62]For the same reason as given for the Disability Discrimination Claims the Age discriminatory dismissal is the only claim which is in time. Of the other Agerelated claims only one is dated (outside the time limit) and the remainder despite everybody’s best efforts remain undated and at times unattributed to any perpetrator.

[63]So far as those claims are concerned the questions will be whether or not the dismissal can be said to be part of “conduct extending over a period” and if not whether it would be just and equitable for time to be extended. The Law on Time Limits

[64]There is no link with the undated allegations of overt reference to the Claimant’s age by largely unidentified staff at times which cannot be discerned despite best efforts. We do not accept that there is a link between what appears to be the last alleged act of Direct Discrimination / harassment on 28 October 2019 and the matters which gave rise to a constructive dismissal. Accordingly, the only act of Age Discrimination in time is that set out at 20 (f) of the Issues.

[65]Section 123 of the Equality Act 2010 (EQA) reads as follows, so far as is relevant: (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[66]One issue on time limits in discrimination cases centres on whether there is continuing discrimination extending over a period of time or a series of distinct acts. Where there is a series of distinct acts, the time limit begins to run when each act is completed, whereas if there is continuing discrimination, time only begins to run when the last act is completed.

[67]In Commissioner of Police for the Metropolis v Hendricks

(2003) ICR 530

the question was said to be whether that was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed.

[68]That approach was confirmed by the Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust

2006 EWCA Civ 1548

, CA. Tribunals should look at the substance of the complaints in question — as opposed to the existence of a policy or regime — and determine whether they can be said to be part of one continuing act by the employer.

[69]Hendricks was also cited with approval by the Court of Appeal in Aziz v FDA

2010 EWCA Civ 304

, CA where the Court noted that in considering whether separate incidents form part of an act extending over a period, ‘one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents’.

[70]Section 123 EqA does not specify any list of factors to which a tribunal is instructed to have regard in exercising the discretion whether to extend time for ‘just and equitable’ reasons.

[71]The Court of Appeal considered just and equitable extensions in Department of Constitutional Affairs v Jones

2008 IRLR 128

, CA, and emphasised that the factors referred to by the EAT in British Coal Corporation v Keeble and ors are a ‘valuable reminder’ of what may be taken into account but their relevance depends on the facts of the individual cases and Tribunals do not need to consider all the factors in each and every case. In Abertawe Bro Morgannwg University Local Health Board v Morgan

2018 ICR 1194

, CA, the Court of Appeal pointed to the fact that it was plain from the language used in S.123 EqA (‘such other period as the employment tribunal thinks just and equitable’) that Parliament chose to give employment tribunals the widest possible discretion and it would be wrong to put a gloss on the words of the provision or to interpret it as if it contains such a list.

[72]The relevance of the factors set out in British Coal Corporation v Keeble and ors (above) was revisited in Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 ICR D5, CA. With regard to the Keeble factors, the Court pointed out that the EAT in that case did no more than suggest that a comparison with S.33 might help ‘illuminate’ the task of the Tribunal by setting out a checklist of potentially relevant factors; it certainly did not say that that list should be used as a framework for any decision. In the Court’s view, it is not healthy for the Keeble factors to be taken as the starting point for tribunals’ approach to ‘just and equitable’ extensions, as they regularly were. Rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion, and confusion may occur where a tribunal refers to a genuinely relevant factor but uses inappropriate Keeble-derived language. The best approach for a tribunal in considering the exercise of the discretion is to assess all the factors in the particular case that it considers relevant, including in particular – as Mr Justice Holland noted in Keeble – the length of, and the reasons for, the delay.

[73]It is clear that tribunals can take a wide range of matters into account when determining whether it is just and equitable on the facts to allow a claim to proceed out of time. Conclusions of Age Discrimination – Acts Extending Over a Period

[74]The Claimant has failed to provide any dates , save one, for the acts of age discrimination she alleges that has been brought by various individuals identified by their first name or not identified at all. That date is a text from the Claimant’s then manager on 28 October 2019. All of the incidents are in store during the working day and save for one involve comments made to individuals. The matters leading to the dismissal do not include these matters as reasons why the Claimant resigned as identified by EJ Robinson and we find that, as in Aziz the allegations are of a different type completely to those that are in time effectively between harassment in the work place by comment and management action for an alleged act of misconduct and subsequent management of the claimant’s sickness absence. The claimant has not demonstrated to our satisfaction that they amount to acts extending over a period and we find that all of them are out of time. Just and Equitable Extension – Disability and Age

[75]We note the Respondent’s representations on this issue that there is no presumption that time will be extended. It is for the Claimant to place their position before the Tribunal to allow the discretion to be exercised. The Claimant has not helped herself in this regard. The issue has been well flagged up in the Response documents and within the List of Issues. The Claimant was reminded of the position and her need to address it at the start of the hearing and a further opportunity was afforded to her at the end of cross examination during questions asked by the Employment Judge as to why it was out of time and why it would be just and equitable for her to have time extended. The Claimant replied that she had thought her managers would have helped her and that her Claim was “important”

[76]Even at the final hearing the Claimant had a general list of claims and was unable to tell the tribunal when many of those acts took place and some claims were vague in terms of date or the identity of the perpetrator. It is impossible to even gauge how far back these allegations stretch. Where there are vague claims it places the Respondent at a great disadvantage in helping witnesses focus on the correct area or indeed identifying the witness at all that is required.

[77]There is a need to consider the balance of prejudice that would accrue if time was to be extended beyond the obvious detriment that accrues if a decision is made either way (Claimant cannot proceed with a Claim she wants to bring and Respondent has to defend a claim that is out of time). For both Age and Disability discrimination claim we consider that the balance of prejudice falls in favour of the Respondent.

[78]The Claimant has made a late claim which she knew was late and tried to solve the issue by filing a further EC certificate. We are satisfied that she was fully aware of the time limits. In December 2019 when being interviewed by Ms Palmer Lynch she makes it quite clear that she is going to bring a Tribunal claim and indeed she was able to do so at that time. The Age claims seem to go back a substantial period but it is hard to know how far. She has been continually asked to particularise her claim by way of date and perpetrator which she has failed to do. We are aware of some relevant staff of the Respondent who have moved on and this has prejudiced the Respondent’s preparation of this Claim.

[79]The Claimant has put forward nothing in her statement or in her oral evidence (until questions from the Judge) about why it would be just and equitable for time to be extended and there was nothing which the Tribunal considers to be of great assistance to her in what she did say. The Claimant was considering a claim as of 26 November as that is the date of entering ACAS EC. It would appear that she was considering a claim as opposed to getting her managers to assist as of that date. Secondly, it is accepted that discrimination claims are important but that is all the more reason to abide by known time limits. Further, of itself, the importance of a discrimination claim is not a good reason for time to be extended.

[80]The Claimant has not been able to provide any cogent reason for the delay at all. In Abertawe Bro Morgannwg University Local Health Board v Morgan

2018 ICR 1194

, CA it was reiterated that the discretion under S.123 EqA for an employment tribunal to decide what it ‘thinks just and equitable’ is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation for the delay from the Claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard. However, there is no requirement for a tribunal to be satisfied that there was a good reason for the delay before it can conclude that it is just and equitable to extend time. Any failure is a matter to be taken into account.

[81]It is for the Claimant to make out that it would be just and equitable for time to be extended. The Claimant has not discharged the burden upon her and save for the constructive dismissal and Age discriminatory dismissal claim, all other claims are dismissed as they have not been brought within the statutory time limit. We make it clear that our decision would have also been the same had the date of presentation been the original date as opposed to July 2022.

[82]The Tribunal has made findings and discussed the substantive claims which now do not need to be dealt with. In the event that the findings we have made on time limits do not stand scrutiny then the Tribunal is able to make findings of fact on the claims. In broad terms: a) All claims of Age Discrimination would have been dismissed; b) The Claimant would have been found to have been a disabled person on account of her back injury. c) We would have found that all disability discrimination claims should be dismissed save that we would have found that the failure to provide the Claimant with a stool would have been a failure to make a reasonable adjustment. The Constructive Dismissal and Discriminatory Dismissal Claims

[83]The Claimant was employed as a Customer Service Assistant at the BP / M&S service station in Holborough Road, Snodland in Kent between 7 March 2016 and 29 April 2019. The Claimant’s age group for the purposes of section 5 of the Equality Act 2010 was described as being a person in her “sixties”.

[84]The Claimant’s role would normally include working on the till, the food counter, and the shop floor and assisting with deliveries. There were a number of employees at the same level as the Claimant and the general picture we got was one of little harmony with cliques formed and a number of individuals not liking and seeking to avoid each other.

[85]Ms Hickson, the Store Manager described the Claimant as being very good with customers but that she would not be as effective on the shop floor and was resistant to being told that she was not doing something correctly or any criticism of her performance. Even giving due allowance for the stresses and strains an Employment Tribunal brings the Tribunal experienced the Claimant’s reluctance to follow an advised path if she believed her alternative was better.

[86]The Claimant had issues with a number of different individuals in the store and particularly did not trust a number of the Duty Managers. The Claimant would regularly message Ms Hickson outside of Ms Hickson’s working hours with issues that she did not feel comfortable bringing to the attention of Duty Managers. Ms Hickson explained that many of the messages were long and very emotional and it got to the stage where she felt harassed by the messages. We are satisfied that that was not the Claimant’s intention but are equally satisfied that that was the effect.

[87]We are equally satisfied that the Claimant believed that she was being bullied at work. There was a very poor relationship with another employee (Janice) and Ms Hickson states that she considered that there was fault on both sides but ultimately she decided to simply try and ensure they never worked on the same shift. The strength of the Claimant’s feelings toward this individual can be gauged by her description of Janice as being a “vision of Satan” in her witness statement. The Claimant explained to us that she was intending to write and publish a book about her “horrendous employment with BP” where she would be able to go “hell for leather”

[88]The Claimant asserts that other staff were disrespectful and rude towards her. We have heard of allegations going the other way too. Incidents that the Claimant had raised with Ms Hickson were with an employee (Kevin) who she alleged had assaulted her on Christmas Eve 2018. Ms Hickson caused a third party to view the CCTV and it was considered a minor incident and advisory action was taken. Ms Hickson viewed the Claimant’s action as “extreme”.

[89]We have seen a number of text messages where the Claimant complains about bullying and the view we take is that Ms Hickson did what she could in order to sort out the various squabbles that erupted from time to time. It was, no doubt, a difficult situation and it is arguable that a more experienced manager may have been more effective in bringing the parties together.

[90]It is quite clear that the Claimant did not like some of the staff she worked with and that position was reciprocated by some staff. Part of that may be a perception that Ms Hickson was being too lenient on the Claimant. The Claimant describes feeling isolated at work and we find that the Claimant was isolated at work, however we find that that was contributed to in a very real way by the Claimant’s own conduct.

[91]On 25 November 2019 the Claimant messaged Ms Hickson at 1854 on her personal mobile phone making an allegation that Holly had sworn / shouted / screamed at the Claimant on the previous day about the Claimant’s failure to undertake a task on the shop floor correctly. The message was a long and detailed one. Within 10 minutes (although Ms Hickson was off work) there was a reply during which Ms Hickson made it clear that she would speak with Holly and the Claimant when she was next in about the incident and that she had personal matters to attend to at that time. We find that this was a reasonably typical exchange of a long and emotional complaint by the Claimant sent to Ms Hickson when she was off work.

[92]The next day at 1245 the Claimant messaged Ms Hickson to indicate that she was not coming in and explained how upset she was by the incident she had recently described. She indicated that she wanted the matter dealt with by an Area Manager or higher as she felt she was being “fixed to resign”. She stated that she did not wish to call into the shop because she did not trust anybody. Initially Ms Hickson indicated that the Claimant did need to call the store to say she was not coming in but when the Claimant persisted and notwithstanding the fact that Ms Hickson was not working she agreed that she would call the store to alert them of the Claimant’s non-attendance only.

[93]Ms Hickson indicated that she would be in the following day between 6 and 2 and that the Claimant should call to speak with her at that time. On 27 November at 1030 Ms Hickson messaged the claimant asking her whether she had thought any more about the threat to resign asking whether it was the right thing to do or whether a meeting with Holly would help.

[94]That spawned another significantly long response by message from the Claimant effectively giving vent to a wide range of issues in no particular logical order. It was full of questions and making a substantial number of comments on a wide range of people and situations. It is not clear why the Claimant just did not call Ms Hickson as requested.

[95]Ms Hickson blocked the Claimant after this message which in the bundle runs to four and a half, typed pages. She explained that as far as she was concerned she was at the end of her tether and felt harassed by the Claimant. We accept that that was how she felt.

[96]Ms Hickson is not a person who the Claimant had a major issue about and she was described as a good person by the Claimant on a number of occasions. Ms Hickson had contacted HR in the past because of the harassment she felt and on this occasion she was advised by Ms de Rose to block the Claimant because of the intrusion. We accept that it would have been better if this situation had been communicated to the Claimant with a clear indication that she should not contact the Claimant on her private phone number but when she was at work.

[97]Ms Hickson decided that the issue to be looked at from all of this was the fact that the Claimant had failed to comply with the sickness reporting procedures. Whilst we acknowledge that that was an issue and had been a feature of previous absences from evidence in the bundle, it is surprising in our view that that ended up being the primary take away point Ms Hickson gleaned from the long texts that had been sent. The Claimant had said that she did not wish to call in because she could not trust staff there. Having said that we do acknowledge that the failure to report sickness properly was a potential disciplinary issue.

[98]On 30 November 2019 Mrs Palmer-Lynch visited the Holborough store to interview the Claimant in respect of the Claimant’s alleged failures to report her sickness absence in the correct manner. The Claimant had failed previously to communicate her absence properly. The Claimant was surprised and affronted by the way events had turned. We are quite satisfied that it was made clear to the Claimant on a number of occasions that this was not a disciplinary hearing per se but an investigatory hearing under the formal disciplinary process which we are satisfied it was.

[99]We have seen the notes of the meeting which are signed off by the Claimant and indeed the first set of notes show that alterations were made on account of the Claimant’s representations. The Claimant forcibly asserted that the notes to the second meeting were not accurate despite her agreement. We accept as per the Respondent’s case that the notes are not verbatim but we are satisfied that they are an accurate record of the meeting and do not accept the Claimant’s allegation that she was coerced into signing them.

[100]In the first meeting on 30 November the Claimant was asked why she had refused to call into the store as per due process. The Claimant reiterated that she did not trust the managers in the store and she was asked why that was and the Claimant explained it was because store managers had their favourites and that the Claimant felt she was being bullied. The Claimant told Ms Palmer-Lynch who and also gave the examples of when she contended she had been assaulted, the recent incident with Holly, and when she had been struck by a door was banged upon her by Janice. None of these matters were couched in terms of being discriminatory because of Age at the time and indeed none formed part of the Age Discrimination claim set out in the List of Issues

[101]The Claimant was clearly distressed in recounting these matters and that was noted by Ms Palmer-Lynch who suggested that the best way to deal with matters was for the Claimant to ensure that policies were followed and then to take up the other issues. Ms Palmer -Lynch asked for examples of the bullying and those were the three that were offered by the Claimant. We are satisfied that Ms Palmer-Lynch was aware that there were a number of issues but consider it reasonable that she look into the matters which the Claimant had chosen to speak to her about for there to be a proportionate response.

[102]We have already commented upon the fact that it was curious that the Claimant was spoken to in the context that she was but ultimately what that did was flesh out that the reason she did not wish to call the store was because of the way she was treated by others inside the store. It was reasonable for Ms Palmer-Lynch to try and look into those at that point.

[103]Statements were taken from various people. Janice was interviewed about the door incident and confirmed that there had been an occasion some time ago when she had opened a door with her foot as she was carrying a tray and the door had hit the Claimant but not with force and it had all been an accident. She confirmed that she had had issues with the Claimant before. The evidence before us was that it was known that there were issues between the Claimant and Janice and steps had been taken to ensure that they were not on the same shift.

[104]Mr Edwards who was a Duty manager gave a statement about the “assault” and stated that he was told about it at the time and that Kevin had said that he had tapped the Claimant on the shoulder. Mr Edwards brought both parties in and Kevin apologised for the incident. Mr Edwards looked at the CCTV and saw that there was contact but it was not in his view overly aggressive or over the top. After hearing from the claimant and a long discussion over the legal definition the matter concluded with a hug between the two and Mr Edwards perhaps not unnaturally thought the matter was over. The next day the Claimant contacted him to say she was still in shock because of the incident and that she wanted the CCTV.

[105]Statements were taken re the Holly incident and it appeared that there had been an argument / heated discussion re the claimant’s failure to undertake a task to Holly’s satisfaction. There was no evidence to suggest that Holly was as animated as the Claimant asserted or that she had waved her arms about in a threatening manner.

[106]Other staff were questioned about the Claimant and there was little positive comment forthcoming. Ms Thompson explained that she believed that the Claimant got away with everything, Ms Hamer described the Claimant as the worst co-worker she had ever known and she, Ms French and Ms Tamplin recorded that the claimant was disrespectful to others. Which ever way you look at it there was scant evidence to support the Claimant’s view of specific incidents or indeed that she was being bullied. On the contrary there was ample of evidence of a general view that the Claimant was disrespectful herself and that others did not like her because of that. Again, there was nothing that could be said to pertain to the Claimant’s age

[107]Ms Palmer-Lynch held a further meeting with the Claimant on 19 December 2019. Again, we are satisfied that this was a second investigatory meeting or rather a continuation of the first. The Claimant had spoken to ACAS and indeed by that time had actually entered and emerged from Early Conciliation. The Claimant accepted that she had previously been told that contacting by text message did not comply with what the Respondent required if she was absent sick. The Claimant was shown the CCTV of the Holly incident and Ms Palmer-Lynch proffered the opinion that she could not see that it was any reason not to call into the store in the approved manner. The Claimant responded: “How dare you. You know nothing about you have no idea how I am feeling I want all this in writing when I when it goes to the tribunal what has been going on”

[108]Ms Palmer-Lynch states that she will be recommending disciplinary action and lets the claimant know what the next steps will be and the Claimant tells her that the whole thing was a “farce”. The Claimant went absent sick and never returned after 22 December 2019.

[109]On 19 January 2020 the Claimant lodged a grievance or what was taken to be a grievance. There was correspondence between the Claimant and the respondent following that including correspondence about sickness certificates.

[110]On 10 March Ms de Rose contacted the Claimant to point out that a sick note which was due to be sent had not been received and pointed out the importance of doing so. It was confirmed that the Claimant’s grievance would be heard by the Area Manager and they were seeking to set a date when the Claimant was fit. Also, there was mention of an OH referral.

[111]On 13 March the Claimant complained at the level of her salary as she had been paid less than her normal wage and confirmed that she had issued proceedings in the Tribunal. In April (21st) she made a similar complaint about her wages. The Respondent responded and pointed out that the Claimant had failed to engage with the request for an OH referral.

[112]On 27 April 2022 the Claimant was sent the following letter: “Following your letter to Stephanie Ziegler on the 21st of April I would like to respond the concerns you have raised. Your current sick note for work related stress expired on the 21st of April 2020. If you are still unwell you still need to submit fit notes and remain in reasonable contact with BP in accordance with the absence policy.” In regard to your question about furlough, BP is not operating the furlough scheme. From BP's perspective you have been reporting as unfit to work since the 3rd of January 2020 and you need to be covered by a fit note and will be covered by the sick pay policy. You state that nothing has been done to try and help you return to work. I have attached the letter sent to you on the 10th of March 2020 and also an e- mail sent to you by Ms Ziegler on the 27th of March 2020 which includes a copy of the letter. We have tried to make contact with you on several occasions. We've also asked for your permission to make a referral to occupational health for an assessment and we've explained that we also need to understand if you felt fit enough to attend a grievance hearing so that we could subsequently investigate your concerns. So far you have not engaged with attempts to connect to discuss your health and options to return. I would encourage you to do this by contacting either myself or Emma to enable us to arrange the necessary assessments. If you choose not to make contact then will have no alternative but to make decisions regarding your contract of employment based on the information we have”.

[113]On 28 April the Claimant responded: I have no idea who you both are but that seems par for the course. No covering e-mail. As usual nothing from you with even a tiny bit of concern or apologies for what you've let me happen to me for four years. You just presumed because you have had a good working life with BP that I do not need a bit of empathy and compassion. You forced me to go certificating sick with work related stress and left me 500 pounds short per month. You haven't bothered emailing me to keep in touch. I told Stephanie in HR that as you've affected by mental health so much I don't want to talk but I'd welcome e-mail inquiries. Nothing.

[114]On the 29th of April 2020 the claimant resigned saying “Instead of an e-mail from you showing empathy or concern about my health how I am how I'm coping with loss of £500 a month and how he could you help me? No heartless BP send me another pressured offer e-mail. This is my e-mail is to inform you that you forced me to resign therefore this is now a constructive dismissal and we've been dealt with accordingly. You should be ashamed of yourself and your company for doing this to me. I will put my uniform by the door in Holborough when lockdown is finished”. The Claimant’s resignation was accepted shortly thereafter. The Law Unfair Constructive Dismissal

The Law

[115]The statutory basis for constructive dismissal is set out at section 95 (1) (c) of the ERA 1996 and that section states that an employee is dismissed by his employer if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

[116]It follows that the test for constructive dismissal is whether the employer’s actions or conduct amounts to a repudiatory breach of the contract of employment (Western Excavating (ECC) Limited v Sharp

(1978) 1 QB 761

[117]It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (Malik v BCCI SA

(1998) AC 20

[118]Any breach of the implied term of trust of and confidence would amount to a repudiation of the contract of employment and the test of whether or not there has been a breach of the implied term is objective (Malik at 35C). There is no need to demonstrate intention to breach the contract. Intent is irrelevant.

[119]A relatively minor act may be sufficient to entitle the employee to resign and leave the employment if it is the last straw in a series of incidents. The particular incident which finally causes the resignation may in itself be insufficient to justify that action, but that act needs to be viewed against a background of such incidents that it may be considered sufficient to warrant treating the resignation as a constructive dismissal. It is the last straw that causes the employee to terminate a deteriorating or deteriorated relationship.

[120]It is clear that the repudiatory conduct may consist of a series of acts or incidents, some of which may be more trivial, which cumulatively amounts to a repudiatory breach of the implied term of trust and confidence. The question to be asked is whether the cumulative series of acts alleged, taken together, amount to a repudiatory breach of the implied term. Although the final straw may be relatively insignificant, it must not be entirely trivial. It must contribute something to the preceding acts.

[121]The paragraphs prior to his one within this section are a summary of Lord Dyson’s Judgment in London Borough of Waltham Forest v Omilaju

(2005) ICR 481

[122]In Kaur v Leeds Teaching Hospitals NHS Trust

(2018) EWCA Civ 978

it was identified that normally it will be sufficient to answer the following questions to ask the following questions to establish whether an employee has been constructively dismissed: a) What was the most recent act or omission on the part of the employer which the employee says caused or triggered his or her resignation? b) Has he or she affirmed the contract since that date? c) If not, was that act or omission in itself a repudiatory breach of contract? d) If not, was it nevertheless a part of a course of conduct which viewed cumulatively amounted to a repudiatory breach of the implied term of trust and confidence? d) Did the employee respond to that breach? Was the Claimant constructively dismissed and/or was the Respondent’s conduct that led to the resignation an act of Age Discrimination?

[123]The Claimant did send texts to her manager over a period of time about what she clearly perceived was a situation that was upsetting her. There were a number of options available to the Respondent, one of which was to look at the reasons why the Claimant could not call into the store as per policy via what is clearly an investigatory process. Whilst that course would not have been the one that this tribunal would have necessarily chosen it did provide the Claimant with a platform to explain why she felt so upset with people in the store and why she could not trust them.

[124]It was eminently reasonable for Ms Palmer Lynch to seek specific incidences of bullying and the Claimant provided her with the ones she wanted to. None of the three examples given were asserted to be discriminatory on the grounds of Age at the time when they were given. It was tolerably clear that the meeting was being postponed for those matters to be looked at and taking into account that two involved alleged assaults and the other aggressive behaviour it would be contrary to good sense not to look into them.

[125]It seems to the Tribunal that as an initial enquiry went Ms PalmerLynch undertook a proportionate and reasonable enquiry looking at CCTV where available and speaking to those who were allegedly involved. Her conclusions were that there was nothing that she found that would suggest the Claimant could not call in her sickness and it seems to the Tribunal that that was a conclusion she could come to on the allegations the Claimant had made to her and on the reasonable enquiries she made. Indeed, from the enquiries made it was clear that there was some discontent in the store and disrespectful behaviour but the perception of others was that it flowed from the Claimant.

[126]Following on from the investigation it seems to the Tribunal that it was inevitable that the Claimant would be put forward for a disciplinary hearing and quite possible that she would have been given an oral or a first written warning for her breach of process and a clear indication that she should comply in the future. The Claimant’s redress would be to put in a grievance which of course she did and for that process to be followed through about the alleged toxicity in the work place.

[127]We find that they were investigatory meetings but clearly in a disciplinary context and that it permitted the Claimant to explain her concerns to a manager from another store. We can see that the Claimant was anxious and seemingly hostile within the meetings and we have no doubt that Ms Palmer- Lynch needed to keep a tight rein on the meetings but we reject any suggestion of bullying behaviour by her. We consider that she acted professionally and there was no element of coercion.

[128]In the course of this hearing, we have noted that the Claimant’s perception of events and attitudes have from time to time run counter to observations and conclusions which we ourselves have observed and are of the view that the Claimant’s firm and fixed view is capable of concluding facts which are in reality not correct.

[129]The Claimant also is very imprecise in language which has led her to climb down on a number of occasions. She seems to say never when she means occasionally. Whilst we do not consider that she has deliberately set out to perpetuate falsehoods, we do consider that she views reality in a very individual way which means that she cannot be considered a reliable historian and it was reasonable for the employer to come to the same view (e.g., Hollie incident).

[130]The letter of 10 March was a reasonable one to send in the context of the situation. There was a view that the Claimant had ceased to engage properly and it was reasonable and appropriate to request engagement and to set out the ramifications if that continued. Ultimately the Respondent wanted to get the Claimant to OH and to find out when she could return and deal with the disciplinary matter and grievance which were waiting in the wings.

[131]Using the Kaur guidelines, the final act complained about is the letter of 10 March and we do not consider that to amount to a repudiatory breach of contract of itself and nor do we consider that it can be said to be the final straw of the course of conduct that the Claimant asserted as amounting to a repudiatory breach. On the case laid before us by the Claimant we do not consider that the case comes even close to amounting to a constructive dismissal. The constructive dismissal claim is rejected.

[132]The Claimant failed to challenge any of the witnesses on any aspect of what is set out above as being an act of age discrimination. She has not identified what it was that was age related that forced her to resign. It is an allegation wholly unsupported by evidence and that claim is rejected as well.

[133]We conclude by reiterating that this a sad and unsatisfactory case for a number of reasons. It is clear that the Claimant did not enjoy the majority of her time at the Respondent and has suffered stress and anxiety because of it. A number of local solutions were tried and may have worked for a while but it seems that this was a fairly dysfunctional workplace and on the evidence we had a number of people including the Claimant contributed to it.

[134]The gulf between HR with their knowledge and skills and that within the store seems particularly wide and we are left with the overriding perception that store managers were left to fend for themselves too much which led to less-than-optimal outcomes. Despite being successful in this claim the respondent would be wise to reflect on issues that have arisen in this case and steps that might be taken to ensure that stores are better able to cope with issues as they arise. They might also wish to reflect that but for issues relating to time limits they would have been found to have discriminated against the Claimant related to her disability on a single matter, having put forward an argument in defence which was dismantled in relatively summary fashion. There are learning points here and we hope they are taken

[135]We are fully aware that the Claimant will be disappointed by this outcome. We hope that she recovers her health at the earliest opportunity and that the fact that this matter which harbours unhappy memories for her has now concluded will enable her to move on.