J Al Kinany v Sams Helping Hands Ltd: 2401957/2024

EMPLOYMENT TRIBUNALS

Case No 2401957/2024

Between

J Al KinanyClaimant

Sams Helping Hands LtdRespondent

Before

Employment Judge Humble

In person for claimant

Date 21 May 2025

REASONS

[1]The Hearing took place on 12 and 13 March 2025. The claimant was selfrepresented, and the respondent was represented by Mr Randall who, as a foreign qualified lawyer, was acting as a consultant for the respondent. The claimant had an interpreter who assisted her throughout the hearing. The parties had prepared an agreed bundle of documents and written witness statements for the claimant and Mr Farooq, a director of the respondent. On first day of the hearing, the documents were read, the statements were taken as evidence in chief and the claimant and Mr Farooq were questioned on their evidence. Submissions were taken on the morning of the second day and, following a period for deliberations, an oral judgment was handed down.

The Issues

[2]The claims and issues in this case were identified at a case management discussion of 7 August 2024 and set out in a Case Management Order of the same date (pages 36 to 38 of the bundle) as follows: Disability

[3]Did the claimant have a disability as defined by section 6 of the Equality Act 2010 at the relevant time? The claimant relies upon a broken wrist. The respondent accepts that she had a broken wrist. It is self-evident that a broken wrist would have a substantial adverse effect on her ability to carry out day-to-day activities. The relevant time is 6-7 December 2023.

[4]The Tribunal will decide: 1) Were the substantial adverse effects on her ability to carry out day-today activities long-term? The Tribunal will decide: 2) did they last at least 12 months, or were they likely to last at least 12 months? 3) if not, were they likely to recur? Discrimination arising from disability (Equality Act 2010 section 15)

[5]Did the respondent treat the claimant unfavourably by terminating her contract?

[6]Did the claimant’s inability to work arise in consequence of the claimant’s disability?

[7]Was the termination of the contract because of the claimant’s inability to work?

[8]Was the termination of the claimant’s contract a proportionate means of achieving a legitimate aim? The respondent says that its aim or aims were:8.1 Needing to recruit staff; and/or

8.2 Needing to provide care to service-users.

[9]The Tribunal will decide in particular:9.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

9.2 could something less discriminatory have been done instead; and/or

9.3 how should the needs of the claimant and the respondent be balanced? Reasonable Adjustments (Equality Act 2010 sections 20 & 21)

[10]A “PCP” is a provision, criterion or practice. The respondent had a PCP of requiring employees to attend (or to be able to attend) for work in the next three weeks.

[11]Did the PCP put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that she was unable to attend for work in that time?

[12]Did the respondent fail in its duty to take such steps as it would have been reasonable to have taken to avoid the disadvantage? The claimant says that the following adjustments to the PCP would have been reasonable:13.1 Not dismissing her; and/or

13.2 Extending the period of time for which she was allowed to be unable to work. Victimisation (Equality Act 2010 section 27)

[13]The protected act relied upon is the claimant contacting ACAS to commence these proceedings.

[14]The claimant says that a reference provided by the respondent to a third-party employer led to a job offer being withdrawn on 15 February 2024. The Tribunal will need to decide what reference was provided, including whether the respondent provided the/an anonymous reference?

[15]In any reference found to have been provided (including, if found, in the anonymous reference), did the respondent subject the claimant to a detriment?

[16]Was it because the claimant had done the protected act or because the respondent believed the claimant had done, or might do, a protected act? Unauthorised deductions from wages

[17]Did the respondent make unauthorised deductions from the claimant’s wages and, if so how, much was deducted?

[18]The claimant says that unauthorised deductions were made from her wages from 2 May 2023 until 1 December 2023 when she was not paid for all of the travel time which she undertook. The respondent says that the claimant was paid for all travel time.

[19]The Tribunal will need to determine if the claimant was paid for the travel time (with the claimant to have confirmed the time and wages which she says were not paid).

[20]The claimant also says the respondent made an unauthorised deduction from her wages when it failed to pay her £127 of sick pay and/or statutory sick pay due at or around the time of the termination of her employment. The respondent says that it was not required to pay the sum and, at least in part, contends that the claimant did not meet its/the requirements to evidence her injury. Was an unauthorised deduction made of £127? Breach of Contract

[21]The claimant claims for one week’s pay for notice. She was not given any notice of termination. She was not paid in lieu.

[22]Did the claimant fundamentally breach the contract of employment such that the respondent was entitled to terminate the contract without notice? The respondent says that it was entitled to terminate without notice because the claimant had not provided the evidence it required of her injury.

[23]How much should the claimant be awarded as damages?

Preliminary Matters

[24]At the outset of the hearing the claimant confirmed she had, a day or two before the hearing, received her outstanding statutory sick pay and her notice pay of one week’s notice. On that basis the breach of contract claim and the unauthorised deduction from wages claim, insofar as it related to unpaid statutory sick pay, were dismissed on withdrawal by the claimant.

The Law

[25]The tribunal had reference to section 6 Equality Act 2010 (“the Act”), which states: “(1) A person (P) has a disability if –(a) P has a physical or mental impairment, and

(b) The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.” Schedule 1 to the Act, where relevant for the purposes of this case, in relation to long-term effects states: “(1) The effect of an impairment is long-term if- (a) It has lasted for at least 12 months, (b) It is likely to last for at least 12 months…”

[26]The tribunal had reference to the Guidance on the Definition of Disability (2011), and in particular section C4 of that guidance: “In assessing the likelihood of an effect lasting for 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood.”

[27]In relation to the victimisation claim, the tribunal had reference to section 27 Equality Act 2010 which provides:(1) A person (A) victimises another person (B) if A subjects B to a detriment because - (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[28]The tribunal reminded itself of the principles in Kapadia v London Borough of Lambeth

[2000] IRLR 699

, CA which is authority for the principle that the burden of proof rests with the claimant to show that he or she suffers from a disability. The tribunal also had reference to the cases of Whittlestone BJP Home Support Limited

[2014] IRLR 176

, EAT and to Selkent Bus v Moore

[1996] IRLR 661

, EAT. Findings of Fact The Employment Tribunal made the following findings of fact on the balance of probabilities (the tribunal did not make findings upon all the evidence presented but made material findings of fact upon those matters relevant to the issues to be determined):

Background

[29]The respondent is a domiciliary care provider based in Oldham. The claimant was employed by the respondent as a domiciliary care assistant providing care to the respondent’s clients in their own homes. She commenced employment with the respondent on 27 April 2023, and was issued with a contract of employment (page 41 of the bundle) which she signed. The relevant provisions for the purposes of the claim are at page 44, clause 6 (3) which states: “You will be paid according to the allocated times of each call, all allocated visits must be attended within this period”; and at page 49, clause 19, which deals with the termination provisions under the claimant’s contract and specifically Clause 19 (2) which states that the respondent “reserves the right to terminate your employment without notice if you reject shifts or if you are unavailable for work for any reason for three weeks or more in succession.”

[30]On 1 December 2023 the claimant had an accident when picking up her daughter from school, she slipped and hurt her wrist and was admitted to hospital where she was later diagnosed with a broken wrist. On 2 December she sent a WhatsApp message to Alisha Farook, the respondent’s Care Manager, informing her of the accident and stating that she had hurt her arm. An exchange of WhatsApp messages then took place on 4 December 2023 (pages 8 to 9 of the claimant’s witness statement) and in those messages the claimant informed the Care Manager that her wrist was broken and that she had a fracture.

[31]On 6 December 2023 the claimant had a telephone conversation with Ms Farook during which Ms Farook asked the claimant when she was likely to recover. The claimant replied, “the doctor said it might take up to six weeks”, Ms Farook’s response was, “in that case we are going to end your contract but if you recover and want to come back you will sign a new contract if we need more carers”.

[32]On Thursday 7 December 2023 an email was sent from the respondent’s finance team to the claimant confirming the termination of her employment (page 56 of the bundle), and stating that the reason for the termination was that she was unavailable for work for three or more weeks in succession. This was in accordance with the terms of clause 19 (3) of the contract of employment.

[33]Those are the brief background facts which were not in dispute.

The claims

[34]We turn first to the disability discrimination claims under Section 15 and Sections 20-21. These claims require both that the claimant had a disability at the material time and that the respondent had knowledge of the disability. The material time for the purposes of this case is the termination date, 6 December 2023. The claimant had a broken wrist at that time and so it was not in issue that she had a physical impairment which had a substantial adverse effect on her day to day activities. The question was whether the adverse effect had, at that time, lasted for twelve months or more, which it had not, or whether it was likely to last twelve months or more. The evidence before us did not support the contention that it was likely to last twelve months or more.

[35]There was limited medical evidence in the bundle, the latest of which (at page 188) suggested some ongoing immobilisation in relation to the wrist as late as September 2024 but, even if that was significant evidence of a long term impairment, it was not for the tribunal to look at the case with the benefit of hindsight. The question was whether at the material time, that is on 6 December, there was an adverse effect which was likely to last twelve months or more. The only evidence at that time was that relayed by the claimant to the respondent on 6 December, which was that recovery could take up to six weeks. That was the only evidence available at the time the respondent took the decision to dismiss.

[36]There was a reference in the claimant’s evidence to an expected twelve week period of recovery, the source of that twelve week estimate was not apparent but it was presumably one of her medical advisers, but it did not assist the claimant. On the contrary it supported the contention that the impairment was likely to be a short-term one and that the claimant expected to resume her full duties within a few months. It is for the claimant to show that she is disabled within the meaning of section 6, and the tribunal found on the evidence before it that she had not established she was disabled at the material time. There was no evidence of a substantial adverse effect that was likely to last twelve months or more as at 6 December 2023. Further, the respondent was not aware that the impairment was likely to have a long-term effect such that it might have knowledge, whether actual or constructive, of a disability.

[37]In the absence of a disability, and of relevant knowledge, it follows that the Section 15 and 20 disability discrimination claims are not made out and those claims were dismissed.

[38]Turning to the victimisation claim, this does not require a disability at the material time, it relies on the provisions of Section 27 of the Equality Act, which simply requires that there was a detriment because of a protected act. The claimant’s case was that the protected act was her notification to ACAS on 13 February 2024 of a proposed claim against the respondent. She said that at that time she had been offered a job by a third party, Exemplar Healthcare, with a view to her starting that position in March 2024. Her evidence was that she received a call from a manager from Exemplar Healthcare, called Helen, on 15 February 2024 who said that she had received an anonymous communication raising concerns about the claimant’s conduct in previous work with clients, and who asked why the claimant’s contract of her employment with her previous employer had ended, to which the claimant replied that it was due to an injury. The claimant said that she was then informed that Exemplar Healthcare had “cancelled” the job offer. There was evidence to corroborate that account in a letter from Exemplar Healthcare (page 187) which states, “that the offer is withdrawn due to receiving an anonymous notification expressing concerns in relation to unsatisfactory behaviours”.

[39]The first question for the tribunal was whether the claimant has established a protected act. In the claimant’s evidence before the tribunal she said that she had notified ACAS on 13 February 2024 in relation to a proposed claim for unpaid holiday pay. This was borne out by the documents relating to the ACAS communication, pages 208 to 210 of the bundle. In particular, at page 209, having received the initial ACAS communication, Mr Farooq of the respondent seeks clarification upon the details of the allegations raised by the claimant. The response received from ACAS on 14 February states that the proposed claim relates to holiday pay totalling £973.00. There is no mention in that email of any breach of the Equality Act or any other indication of a complaint of discrimination. On that evidence the Tribunal find that no such complaint of discrimination made to ACAS at that stage and therefore there was no protected act which can said to have caused a detriment on 14 February. Accordingly, even if the respondent provided an adverse reference because of the ACAS notification, it cannot have been because of a protected act within the meaning of Section 27.

[40]There was an additional allegation act of victimisation in relation to a job offer at Furbank House, another care provider. The claimant commenced work with that company in or on 14 March 2024. There was some evidence in the bundle to the effect that a reference had been sought from the respondent by that organisation and that none was provided. However, again, the only protected act relied upon was again the ACAS notification and, it having been established that the complaint to ACAS was not said to be about discrimination, any failure to provide a reference cannot be because of a protected act. Further, there was no persuasive evidence that there was any deliberate decision by the respondent not to provide a reference in that case, the respondent’s case was that no reference request was communicated to the directors. It follows therefore that the victimisation claim is not made out and the claim is dismissed.

[41]The remaining claim is for unauthorised deduction from wages and the claimant’s case in essence is that she should have been paid for the entirety of her shift, that is from the first appointment with a client through to the conclusion of her last appointment. Her contention is that she should have been paid for her travel time between the various assignments with clients. The tribunal find there was no contractual obligation in the contract of employment to make such a payment, the point being covered under the contract at page 44 of the bundle. On the claimant’s own evidence colleagues had informed her that, whilst they had previously been paid for travel time, this practice had been withdrawn before she had commenced her employment. She did not receive any payment for travel time throughout the period of her employment and she raised no complaint about it until the termination of her employment. Mr Farooq’s evidence was that travel time was not payable and it was accounted for within an employee’s normal hourly rate.

[42]During the course of the evidence the tribunal enquired whether this was a case in which the National Minimum Wage might apply in the manner of the case of Whittlestone BJP Home Support Limited

[2014] IRLR 176

, EAT. The respondent pointed out that the case was not framed as a national minimum wage claim, and the tribunal agreed that an amendment would be required for it to be pursued given that it had not been relied upon in the pleadings, or at any time prior to the Hearing. The parties were given the opportunity to make submissions on the point, both on the application to amend and the substantive issue.

[43]This was a matter which, applying the principles in Selkent Bus v Moore

[1996] IRLR 661

, EAT, was a new cause of action, brought very late in the proceedings and which required some quite detailed calculations. Mr Randall made an attempt to produce the relevant calculations at the tribunal’s request but the tribunal’s view, on perusing those calculations was that it was an inaccurate one to the detriment of the respondent. Mr Randall’s calculations did not account at all for split shifts or lunch breaks, in other words any time between assignments when the claimant could have genuinely rested rather than short periods between assignments when she was unable to do so as per Whittlestone. The tribunal were of the view that this was indicative of the fact that the late attempt to rely on the national minimum wage put the respondent to a substantial disadvantage and, given the that the application to amend was sought only at the final hearing, the tribunal took the view that the balance of injustice and hardship weighed against the respondent and the application was not therefore permitted.

[44]Absent any national minimum wage issue, the tribunal find that there was no contractual obligation upon the respondent to pay travel time and it follows that the unauthorised deduction from wages claim is dismissed.

[45]All claims are therefore dismissed.