Miss S Hopley v Rishton Pub Company Ltd: 2402989/2023 and 2403621/2023
JUDGMENT
[1]The claimant’s claim in case number 2402989/2023 having been dismissed for non-compliance with an unless order on 1 December 2023, that order is set aside as provided for under rule 38(2) of the Employment Tribunal rules of procedure as it is in the interests of justice to do so.[1]The claimant’s claim for disability discrimination harassment succeeds.[2]The claimant’s claim for unpaid holiday pay succeeds and the respondent is ordered to pay to the claimant £ 140.60 made up as set out in the reasons below.[3]A remedy hearing has been listed and case management orders made to prepare for remedy. They will be sent to the parties separately.REASONS
[1]By a Claim Form dated 26 February 2023 having achieved an ACAS certificate from 15 January 2023 – 26 February 2023 the claimant commenced proceedings against the respondent for unfair dismissal, disability discrimination, holiday pay and notice pay. She relied on disabilities of anxiety and depression and neck problems. This was the first claim.[2]By a Claim Form dated 22 March 2023, having achieved an ACAS certificate from 15 January 2023 – 26 February 2023, the claimant commenced proceedings against the respondent for unfair dismissal, disability discrimination, holiday pay and notice pay. She relied on disabilities of anxiety and depression and neck problems. This was the second claim.[3]Although the words in boxes 8.2 and 15 of each claim form was slightly different the claims were effectively duplicates. She was complaining about her manager Tracey Chippendale’s treatment of her. Tracey had shouted at her from June 2022 and dismissed her on 14 January 2023. She did not name Tracey as a respondent.[4]There is a complicated procedural history to the claims with the overriding observation being the parties failure to actively pursue the complaints and responses. The claimant was at one point struck out and then relief from sanction was granted. The respondent had not submitted a response but was later allowed to do so out of time.[5]The First Claim was brought on 26 February 2023. The notice of claim sent to the parties on 30 March 2023 and the respondent was given a deadline 27 April 2023 for filing its response. The parties were sent a notice of hearing for a preliminary hearing for case management to take place on 1 June 2023 and were informed that a final hearing was listed for 15 November 2023 to last for three days.[6]The Second Claim was lodged on 22 of March 2023. Notice of claim was sent to the parties on 3 April 2023 and the respondent was given a deadline for filing its response of 1 May 2023. A final hearing was listed in that case to take place on 25 March 2024 lasting for three days.[7]On 1 June 2023 Employment Judge Brewer opened the case management hearing in The First Claim . The claimant did not attend . The respondent did not attend and had not filed a response. Judge Brewer decided that the respondent was now debarred from defending the claimant and could only participate in the hearing to the extent permitted by the Tribunal hearing the case. The claimant wrote on 26 June 2023 saying she wasn’t aware that there had been a hearing as she didn’t get notice of it. Notice of hearing had been sent to the same email address the claimant was using to correspond with in the other case.[8]On 27 June 2023 the respondent was notified that no response having been received in The Second Claim, it would be debarred from defending the claim on liability and might only participate in any hearing to the extent permitted by the Tribunal. A preliminary hearing for case management was to take place in The Second Claim on 4 August 2023.[9]On 20 July 2023 Employment Judge Holmes reviewed the First Claim and sent a letter to the claimant requiring her to provide additional information, to actively pursue her claim, and allowing the respondent an extension of time in which to lodge its Response to 27 July 2023. Perhaps he did not know that Judge Brewer had already debarred the respondent from defending the claim.[10]The claimant replied on 27 July 2023 to say that she had not been at home and had not had access to emails.[11]On 2 August 2023 the claimant emailed to say that she had now received her notice pay from the respondent and to ask for more time to be able to do what she been ordered to do in providing detail about her complaints. The file was reviewed by Employment Judge Dunlop, who was immediately aware that this case could not be ready for final hearing in November 2023 as listed, and so converted the first day of what was to have been the final hearing to a case management hearing.[12]At 8.10am on 4 August 2023 the claimant made a postponement request in the Second Claim which was due to have its case management hearing that day. She said that she had worked a late shift and had a migraine. The postponement was granted and the case management hearing relisted to take place on 31 October 2023.[13]So, by 4 August 2023, due to the inactivity or unavailability of the parties there had been no response in either case and no case management hearing had taken place. On 31 October 2023 Employment Judge Johnson held a case management hearing in the Second Claim. Neither party attended. Judge Johnson issued a strike out warning for the claimant for not having actively pursued her claim. He ordered her to provide additional information. The strike out warning was sent to the claimant on 6 November 2023.[14]On 15 November 2023 the case management hearing ordered by Judge Dunlop took place in the First Claim before Employment Judge Parkin. Again neither party attended. Judge Parkin issued the claimant with an Unless Order, warning that unless she did as she had been directed to do (providing information) her claim would be struck out on 1 December 2023. On 20 November 2023 the claimant emailed the Tribunal to say she had been in hospital, that she could not deal with emails, and to explain that she had dyslexia and needed documents to be sent to her on coloured paper. The tribunal facilitated this request and has sent documents on yellow paper since.[15]Following the Unless Order not being complied with by 1 December 2023, the claimant’s complaints in the First Claim were struck out.[16]On 25 March 2023, the Second Claim came to a case management hearing before Employment Judge Slater. The claimant attended by video. The respondent had at this point appointed a solicitor who attended. Judge Slater consolidated both the claims (it is not clear whether she was aware that the First Claim had already been struck out). She dismissed the claimant’s unfair dismissal complaint because the claimant did not have two years service. She listed a preliminary hearing to take place on 17 May 2024 to consider a strike out application made by the respondent on the grounds that the claimant had failed to actively pursue her complaint in the Second Claim.[17]On 9 May 2024 the claimant wrote to ask could the decision to list a preliminary hearing for strike out be set aside. That request was declined. On 17 May 2024 Employment Judge Allen conducted the preliminary hearing. He granted the claimant relief from sanction and set aside the strike out of her complaint in the First Claim. He decided not to strike out the Second Claim. He made case management orders to prepare the combined claims for final hearing to take place on 27 January 2025. He ordered that the claimant must provide all of her medical records to the respondent together with any documents relevant to her case to the respondent by 30 August 2024. He ordered the respondent to prepare a bundle by 18 October 2024. He ordered the claimant to send her witness statement to the tribunal and the respondent by 13 December 2024.[18]None of those orders were complied with. The respondent’s solicitors came off the record.[19]The complaints that came to final hearing in the consolidated claims of 2402989-23 The reinstated First Claim and 2403621-23 the Second Claim were disability discrimination, holiday pay and notice pay as set out in the agreed list of issues below.[20]The claimant had emailed the Tribunal on 2 August 2023 to confirm that the notice pay claim was resolved. She confirmed that to be the case on 27 January 2025. This Tribunal dismisses the notice pay complaint in a separate dismissal on withdrawal judgment. Adjustments[21]The hearing took place by CVP because the claimant has anxiety and is dyslexic. Adjustments were made by EJ Allen to list the hearing in this way.[22]At the Tribunal’s suggestion because the claimant was clearly distressed, the claimant’s adult daughter Beth joined the hearing and was able to provide moral and administrative support. With Beth beside her the claimant wanted to continue. Respondent non attendance[23]The respondent failed to attend. Telephone calls were made to Mr Peter Jackson, named in the claim and response forms, and listed at Companies House as director of the active respondent company. A voicemail was left informing Mr Jackson that i) the hearing was adjourned until 11am to give him time to attend or explain his absence ii) he had been given notice of the hearing on 3 June 2024 iii) the Tribunal may decide to strike out the defence for his failure to attend and actively pursue it or may decide to go ahead and take it into account. He was told there was a risk a judgment may be entered against the company in its absence.[24]The respondent did not join the hearing. The Tribunal decided to proceed in its absence and have regard to its ET3. Readiness for hearing[25]There was no bundle and there were no witness statements. The Tribunal case files were checked and there were various emails from the claimant containing narrative but she accepted that she had not complied with the case management orders of EJ Allen.[26]The Tribunal set out options, 1. strike out for non compliance, for not being ready in the trial window, or 2. proceed in the present state of unreadiness using documents on file alone with the claimant swearing to the truth of documents and, or 3. allow time today for the claimant to present a witness statement (and other documents she said she had sent to the respondent but not the tribunal) and hear her case tomorrow.[27]The claimant was given an opportunity to make submissions about the options. She said she had done her best and had sent things to the respondent’s representative (she thought that was what she had been ordered to do, she thought it was up to them to send it to the tribunal) including her medical records and some statements from friends as to the impact of the bullying on her but that the respondent’s representatives were no longer acting. She had had a period of hospitalization and surgery, her daughter had had ill health and she was experiencing ongoing anxiety and distress, like PTSD, she said, from what had happened to her at work. She said she wanted justice and did not want the respondent to be able to get away with it.[28]The claimant was clearly distressed at the prospect of the claim being struck out. She described herself as having dyslexia, dyspraxia and learning difficulties. She did not have any documents in front of her and was appearing by mobile phone camera.[29]The Tribunal adjourned to consider how to proceed and decided it was in the interests of justice because ofa. The claimant’s status at litigant in personb. The efforts she had made to send documents to the respondentc. The absence of the respondent meaning there were no bundlesd. The reality that the case could be heard within two days still within the four day trial window if the respondent was not attending to allow option 3, for the claimant to have time on day 1 and to reconvene on day 2 to hear her evidence and submissions and get to judgment on day 2 or day 3.[30]The Tribunal worked with the claimant in accordance with the Equal Treatment Bench Book as follows: 1. It was agreed the claimant’s daughter Beth would be with the claimant throughout the hearing which would start at 11 because Beth has an appointment at 9.30. 2. The claimant, supported by Beth, would do a witness statement on Voice Notes, telling the story of the bad things that happened to her at work because of her disability. The Tribunal accepted that she may not have been able, under time pressure on day 1, to do that in writing in an organized way because of her dyslexia and dyspraxia so it offered to accept a voice recording of her evidence in chief. 3. The claimant agreed to send her Talking Therapies letter detailing her disabilities to the Tribunal. 4. The claimant agreed to send a statement from Beth relevant to Tracey shouting at their home. 5. The claimant agreed to send a statement from her friend Julie relevant to remedy. 6. The claimant agreed to send a screenshot from her friend Jodie who she says witnessed the bullying. 7. The claimant agreed to forward to the Tribunal the medical records that she sent to the respondent. 16. This was the plan for how the hearing could go ahead during the trial window. It was explained to the claimant that she must prove that the bad things happened to her because of her disabilities and that the Tribunal had to decide that she had disabilities within the meaning of section 6 Equality Act and that the respondent knew she had disabilities. 17. The claimant was made aware that this was really her last chance, having previously been granted relief from sanction, having failed to comply with Employment Judge Allen’s case management orders and having attended unready to proceed. List of issues 19. The agreed list of issues from the case management order did not include some of the smaller factual detail from the Claim Forms. It was clear that when the claimant said “shouted at”, the phrase in the List of Issues, she did not just mean volume but that she was referring to criticism of her work. There would be no prejudice to the respondent in interpreting the list of issues in that way because the Claim Forms clearly set out the criticism complaints. 1. Disability 1.1 Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The claimant says the disabilities relied upon are: anxiety/depression; and neck issues. The relevant time for determining whether they amounted to a disability is August 2022 until 14 January 2023. The Tribunal will decide:1.1.1 Did she have a physical or mental impairment?1.1.2 Did it have a substantial adverse effect on her ability to carry out day-to-day activities?1.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?1.1.4 If so, would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?1.1.5 Were the effects of the impairment long-term? The Tribunal will decide:1.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?1.1.5.2 if not, were they likely to recur? 2. Harassment related to disability (Equality Act 2010 section 26)2.1 The claimant alleges that the following occurred. The Tribunal will need to decide if it did. The claimant alleges that:2.1.1 weekly, from August 2022 until January 2023, Tracey Chippendale shouted at her; and/or2.1.2 she was dismissed by Tracey Chippendale on 14 January 2023.2.2 If so, was that unwanted conduct?2.3 Was it related to disability?2.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?2.5 If not, did it have the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 3. Direct disability discrimination (Equality Act 2010 section 13)3.1 The claimant alleges that the following occurred. The Tribunal will need to decide if it did. The claimant alleges that:3.1.1 weekly, from August 2022 until January 2023, Tracey Chippendale shouted at her; and/or3.1.2 she was dismissed by Tracey Chippendale on 14 January 2023.3.2 Did the claimant reasonably see the treatment as a detriment?3.3 If so, was the claimant treated less favourably than someone in the same material circumstances without a disability was or would have been treated? The claimant says she was treated less favourably than Mel, or she relies on a hypothetical comparator. The claimant also relies upon the treatment of Jodie, who she says also had anxiety, as supporting her claim.3.4 If so, was the less favourable treatment because of disability? 4. Holiday Pay (Working Time Regulations 1998)4.1 Did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when her employment ended? That may involve consideration of the following issues:4.2 The claimant contends that she had accrued a whole year’s leave and had taken only one day of leave during that year – is that correct?4.3 What was the claimant’s leave year?4.4 How much of the leave year had passed when the claimant’s employment ended?4.5 How much leave had accrued for the year by that date?4.6 How much paid leave had the claimant taken in the year?4.7 Were any days carried over from previous holiday years? Had the claimant been unable to take leave in a previous year such that it carried over?4.8 How many days remain unpaid?4.9 What is the relevant daily rate of pay? 5. Remedy 5.1 If the claimant succeeds in any of her claims, what remedy (if any) should she be awarded? Documents 20. The claimant and her daughter attended by CVP on day two having sent multiple emails, some of them duplicates and many containing attached files with different content but the same name. It is not the role of the Tribunal to prepare an index and collate a bundle for the claimant. What the Tribunal has done in the time available is list below the documents that have been relied on its findings. This is not a comprehensive record of everything the Tribunal saw.• A letter from 12 December 2015 from a Consultant in Pain Management.• A letter from Catheryn Smith dated 22 March 2021 to claimant’s GP re pain neck pain management.• A letter from Consultant Dr De La Torre confirming the claimant was under his care for myofascial pain dated 21 March 2022• a second letter from Catherine Smith dated 11 August 2021 regarding neck pain management• a letter from Dr De La Torre dated 21 March 2022 from East Lancashire hospital regarding neck pain• an extract from the claimant’s medical records showing diagnoses and medication prescribed• a letter dated 21 June 2022 from George Turnbull at the pain relief clinic• a letter from 12 April 2023 from Dr Desai• a letter from Talking Therapy is dated 19 November 2024• a letter from Talking Therapy is dated 6 January 2025• the claimant’s written document “how pain affects me” which was considered by the tribunal has a disability Impact statement• the undated witness statement of Julie Molloy• the undated witness statement of Bethany Hopley• a copy of a screenshot from Jodie suggesting Mel’s daughter was to be given weekend cleaning work• an email from David Sharples hypnotherapist 21. The Tribunal had regard to the respondent’s ET3 form filed in The Second Claim which later stood as the response in the combined claims. Oral evidence 22. The claimant gave oral evidence. She took an affirmation and then played aloud three separate audio files which we labelled using their durations, File 1 17.47, File 2,1.6 and File 3, 10.11. She was being observed during the playback and was clearly distressed both when making the recording and when listening to the playback. 23. The claimant was asked questions by the Employment Judge to clarify the dates of the wedding she attended, when Tracey started coming in to check the claimant’s work at the end of the shift and the holiday pay complaint. 24. The claimant confirmed that she had said everything she wanted to say in her recordings, her Claim Form, her documents and her answers and did not want to add anything else. 25. The Tribunal did not hear oral evidence from Bethany Hopley, Julie Molloy or Jodie but had regard to their written statements and the email from David Sharples and attached such weight to them as it considered appropriate. The facts History of neck pain 26. In 2015 the claimant was seeing a consultant in pain management for neck pain. At that time her consultant reported tingling and numbness in hands, right side neck pain radiating into her shoulder. She was taking Amitryptiline, Gabapentin and co-codamol to manage the pain. The doctor said he would arrange pain relief injections. He noted that she sometimes was prescribed morphine for the pain. The letter also records her prior anxiety and depression diagnosis. 27. On 22 March 2021 the claimant was seen in East Lancashire Hospital Pain Clinic following a referral from the Lead Consultant in Pain Management. She had had an injection into her right trapezius muscle performed on 1 February 2021 and this was a review meeting with the nurse to check on progress. History of anxiety and depression 28. The claimant had experienced anxiety and depression because of her pain from 2014 and had struggled even to leave home, spending many days in bed. She was doing talking therapy and hypnotherapy. She had been seeing the hypnotherapist Mr David Sharples since around 2015. 29. At the end of October 2021 she saw an advertisement for a cleaner in the respondent’s pub. She went to the pub and was offered the job on the spot. The manager Tracey Chippendale said that she would fit in, that it was a friendly place. The claimant was delighted to get a new job and was feeling confident, happy again and outgoing. She started working for the respondent as a cleaner on 4 November 2021. She worked six hours per week, 8-11am Saturday and Sunday, at rate of £9.50 per hour and earned £57 per week. She was entitled, pro rate, to 28 days annual leave per year. For the first week or two Tracey stayed with her on shift to show her what to do. Talking about her conditions 30. The claimant regularly spoke about her neck pain to Tracey. She mentioned pain management clinic, having injections to block the pain, how long this had been going on, needing surgery and being on medication and impact on her mobility. Tracey said don’t worry. The claimant explained that she was going for neck surgery and injections and Tracey just said “keep me posted”.The facts
[31]In December 2021 she was joining work colleagues on a Christmas night out when Tracey Chippendale said “are you OK being out with your pain ? ”. This was said in front of others. The claimant took this as a sarcastic remark, Tracey was not asking about pain but suggesting that she did not believe the claimant about her pain at work. The claimant felt humiliated and found this offensive as it was suggesting that she was lying about her pain.[32]She enjoyed her work and was keen to make a good impression. She was never off sick despite her ongoing neck pain. Throughout her time working for the respondent and since the claimant experiences pain when she turns her neck . She experiences the sensation of cracking and burning, this then leads to numbness and headaches. It affects her mobility, she experiences feelings of numbness and pins and needles radiating down through her shoulders and arms to her hands. She finds bending and standing difficult and painful because of the impact on her neck. She also experiences pain between her shoulder blades and in her upper back radiating down from her neck. This makes it difficult for her to lift her head up and down and difficult to move her arms. Moving from one position to another is difficult and painful, washing and dressing difficult and painful. The claimant struggles with housework such as hoovering or cleaning services. When she was not working claimant spent most of her time in bed coping with a high pain level. The ongoing pain caused her anxiety and depression.[33]The claimant talked openly about her pain and mobility issues at work due Tracey and to the landlord and others. In March 2022 the claimant had a further nerve block injection for pain relief and a letter was sent from her Consultant to her GP confirming this. Tracey shouting at her from June 2022[34]In June 2022 the claimant noticed that Tracey had started shouting at her i.e. both literally shouting using volume in her voice and at other times criticizing her work in a way that she was not doing for other cleaners, suggesting that things weren’t being done fast enough and things were being missed. At first these were just bad days and the claimant tried to ignore them but being shouted at, both volume and criticism, began to happen on every shift. Tracey criticized the claimant for having left a sheet of toilet paper in the toilet after cleaning it. The claimant felt humiliated, that Tracey was watching her like a hawk and criticising her over the smallest of things. Tracey coming in to stand over her as she worked[35]By September 2022 Tracey was coming in towards the end of each of the claimant’s shifts to check on her work. The claimant believed Tracey did not do that for other cleaners on their shifts. There was a cleaner called Mel who was not disabled and the claimant believed Tracey did not go in to check on Mel’s cleaning. The claimant asked Tracey not to watch her whilst working because it made her uncomfortable and Tracey said “I need to, you keep missing bits, I need to check it is all being done properly”. The claimant raised that Tracey wasn’t checking on the other cleaners and Tracey said “it’s only you I have to come in for, to check the work is being done properly”. The claimant felt that work could have been checked after she left but the reason Tracey was coming in was because the claimant, due to her disability, struggled actually doing the work, lifting and reaching and moving, and Tracey was coming in to watch her, to make her feel uncomfortable because of her disability.[36]On one occasion possibly in autumn 2022 the claimant was trying to mop the floor. Tracey yelled at her for not doing it properly, shouting “do you not even know how to mop a floor ?”. Tracey criticized the claimant for not reaching up high to clean all of the window. The claimant explained that she couldn’t reach up high and that Tracey knew this, because of the claimant’s pain. The claimant was in pain and in tears trying to reach. Tracey shouted at the claimant for little things, like something left on the floor. The claimant felt increasingly anxious going to work because Tracey would be there. She felt constantly worried about doing things wrong and began to experience panic attacks both when at work and when thinking about work. The claimant got rashes down her arms and on her neck as a result of anxiety about being shouted at by Tracey. She was highly anxious when at work and this caused her to make mistakes and to go more slowly. This increased her anxiety because she knew she was being criticised for mistakes and for not being fast enough.[37]The claimant started to stay late sometimes to double and triple checking that everything was done. Often when she came home from shift she would get a phone call straightaway from Tracey shouting down the phone at what a terrible job she done. The claimant often cried on the phone in response Tracey. The claimant began turning the phone off after she left work so as not to have to face being shouted at. The claimant was sometimes physically sick because of anxiety both in work and after work.[38]After the claimant told Tracey about the hospital and the pain clinic in autumn 2022 the shouting became more frequent. Tracey would come in and stand over the claimant as she worked watching everything she did. Tracey would say “you’ve not done this” and point things out. Tracey told the claimant she wasn’t good enough, wasn’t quick enough and was missing things out. On one occasion the claimant was struggling with the hoover both because of her neck pain meaning she had mobility issues and couldn’t lift the hoover and because she was dyspraxic. Tracey observed this and said “you’re useless”. The claimant explained that the pain from her neck meant she couldn’t lift the hoover and Tracey said “why not ? the pain from your neck doesn’t affect your arms”. Tracey regularly made comments such as “you’re not good enough” and “you’re too slow”.[39]On one occasion the claimant was struggling with mobility and stumbled and tripped and fell to the floor, over the hoover that she couldn’t lift. Tracey and other colleagues laughed at her for tripping over the hoover[40]When Tracey went on holiday it was the claimant who covered for her. The claimant also came in on Remembrance Day in 2022 when asked to. This led the claimant to believe that Tracey didn’t really have a problem with the standard of her work. Annual leave December 2022[41]On 9 December 2022 the claimant was due to have the next day off to attend her best friend’s wedding. She was to be a bridesmaid. She had booked the leave in advance. Tracey asked the claimant if she could work 10 December. The claimant said that Tracey knew she couldn’t as it was the wedding. Tracey said “If you’re in pain how can you go to a wedding ?”. 42. 10 December 2022 was the only annual leave the claimant ever took during her employment from 4 November 2021 to 14 January 2023.[43]The claimant worked extra shifts over Christmas and New Year 2022. This also made the claimant think that there was no problem with the standard of her work and that Tracey was bullying her to get rid of her because of her disability. Tracey said that one of the other cleaners, Mel, had a daughter who wanted cleaning work.[44]On one occasion Tracey had to drop off keys to the claimant. It had been agreed she would put them through the letter box. Tracey came to the claimant’s house. The claimant was upstairs in bed in pain and wanting to avoid Tracey. Tracey did not just put the keys through the letterbox she rang the bell and then shouted at the claimant’s daughter for having taken too long to answer the door. Dismissal[45]On 14 January 2023 the claimant was in work cleaning in the toilets and Tracey came in and said “I am going to have to let you go, we don’t need you any more”. The claimant was shocked and anxious. She had been proud to earn her own money and was fearful of losing her pay. She left the shift and did not return. She was devastated and believed that she would not find alternate work. Her anxiety and depression increased. Her experience of neck pain increased. She suffered increased frequency and intensity of panic attacks and flash backs and still experiences anxiety and panic if there is ever any shouting. The claimant has not felt well enough to leave the house often. She is anxious about bumping into people from the pub.[46]The claimant was accepted for PiP for her neck pain and received benefits. On 4 August 2023 the claimant wrote to the Tribunal to say she had worked a late shift. She started looking for work in summer 2024 but has had no success and has little confidence in her ability even to work as a cleaner.[47]The claimant went to ACAS and brought her complaint. Relevant Law 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 26 Harassment (1) A person (A) harasses another (B) if: (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of: (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) ..(3) ..(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. Section 212Relevant Law
[48]Section 212 provides that detriment does not include conduct which amounts to harassment. This means that harassment and direct discrimination claims are usually mutually exclusive because the kind of conduct that could amount to harassment is usually the kind of conduct that amounts to a detriment for the purpose of bringing a direct discrimination complaint.[49]Claims brought under section 39 (2) for detriment cannot also be brought as a harassment complaint. A direct discrimination claim and a harassment claim cannot both be upheld in respect of the same dismissal. Applying the Law Disabled status[50]The claimant relied on neck problems. She was diagnosed with cervical facet joint pain in 2015. The Tribunal saw letters from her consultant in pain management from 2015 and again from March 2021 and March 2022 attesting to injections for pain relief. The Tribunal finds that her neck problems had a substantial long term and adverse effect on her from around 2014 and continuing to present day. She was struggling with pain and mobility in 2021. Carrying out normal day to day activities such as cleaning was difficult for her, movement of her neck or upper body caused pain. She had difficulty with housework and could not lift the hoover, or reach up above her shoulder level.[51]The Tribunal finds that her anxiety and depression was long term having been referred to in a letter dated 2015 from a pain management consultant. The claimant did not give detailed evidence of how her anxiety and depression affected her ability to carry out normal day to day activities prior to starting work. She described herself and her daughter described her as being confident and happy at finding a job. She described herself in evidence as being excited at getting the job and being able to earn her own money. The Tribunal finds, cautiously, based on the limited documentation that has been provided by the claimant and her own oral evidence about how she felt at getting a new job, that anxiety and depression were not having a substantial adverse effect on her in November 2021. This may be because the Tribunal has not been given medical records to show if the claimant was taking medication at that time. Although records show a history of use of sertraline and propranolol the Tribunal cannot be sure that medication was prescribed and being taken in 2021. There was an underlying history of anxiety and depression.[52]From June 2022 the claimant experienced criticism of her work. From September 2022 Tracey started coming in to check her work at every shift. The Tribunal finds that the adverse effect recurred in October 2022 when the claimant began to experience scrutiny and criticism of her work. She said she was watched like a hawk and that this made her even more clumsy and anxious.[53]By December 2022, the Tribunal finds that the claimant’s anxiety levels had increased so that it was now again having a long term, in the sense that it had recurred, substantial, adverse effect on her. She had a day off for the wedding on 10 December 2022 and was anxious about going because she had been criticised for the neck pain. Her anxiety and depression persisted from December 2022 to present day. In March 2023, her medical record showed a renewed diagnosis of anxiety and depression and a prescription for a high dose 150mg anti depressant sertraline and a high dose anti-anxiety propranolol. The Tribunal has had regard to the following statement from January 2025 from Dr David Sharples Hypnotherapist “Sarah came to me around 10 years ago, seeking help for general anxiety, she made some good progress, prior to this she was plagued by anxiety/panic attacks, which in truth were overwhelming her way of thinking and feeling, as already mentioned she made good progress following her sessions with me, and became more confident ,more outgoing and more happy with life in general. She came back to see me some time ago following her dismissal from her job, working as a cleaner at a pub that is local to her, she was awfully upset, shaking with anxiety and had a panic attack right here in my office, when she began to calm down from the panic attack, she was able to tell me, that through no fault of her own, she had been sacked and hadn't been given a reason for this, she told me she loved the job, despite the early morning starts, the job had given her some purpose and was also helping to build up her self belief and confidence, which sadly all became shattered by this event. I saw Sarah briefly just before Christmas [2024] ,she is still badly affected by this, it has hit her self esteem very hard and raised her anxiety levels, making her feel worthless, unwanted and with no purpose in life, she has also revealed to me that she has had to have the involvement of the crisis team from mental health services, due to her becoming suicidal, which I find extremely worrying, all of this has stemmed from her dismissal from the pub where she worked, and it has seriously undone the work we did together attempting to get her life back on track from the curse of anxiety/panic attacks. Sarah suffers from flashbacks now, almost like someone suffering with PTSD, She also told me that she rarely leaves the house nowadays, only to go to Doctors appointments or Hospital appointments for ongoing treatments/consultations for an ongoing problem with her neck”[54]The claimant was disabled for the purposes of Section 6 by her neck condition throughout her employment and by her anxiety and depression from December 2022. Knowledge of disability[55]The claimant told Tracey when she started work about her neck problems. The claimant raised her pain regularly and mentioned hospital, surgery, pain management clinic, injections to block nerves to manage pain, the Tribunal finds, from the remarks made by Tracey, that from December 2021 Tracey as line manager and therefore the respondent as employer knew or ought reasonably to have known that the claimant was disabled.[56]The claimant told Tracey about feeling anxious and about how being watched increased her anxiety. The Tribunal finds that there was not enough evidence to say that Tracey ought reasonably to have known that the claimant’s depression and anxiety amounted to a disability during her employment. The claimant was not off sick, there was no sick note citing depression and anxiety and the claimant did not say that she could not work or that anxiety was affecting her work before the scrutiny began. After the scrutiny increased in October 2022 the claimant did say that she was uncomfortable being watched because of anxiety but on her own evidence the Tribunal finds that she had not said enough to put Tracey on notice of a possible disability. The respondent could not have known nor reasonably ought to have known from what was said and what could have been observed that the claimant’s anxiety and depression amounted to a disability. The claim in so far as it relies on anxiety and depression as a disability fails at this point for want of knowledge. Harassment; unwanted conduct: being shouted at[57]The Tribunal had regard to the content of the claimant’s claim forms here because the List of Issues did not provide specificity as to what the shouting was about. It also had regard to the claimant’s oral evidence and documentation. The claimant was a reliable and consistent witness. She often jumped about in giving evidence but came back to the same accounts of specific incidents recited in the facts with consistency in the use of her words about those incidents and with small detail that did not change. The Tribunal was satisfied that she accurately remembered what had been said to her and shouted at her because it had been, and is still, very upsetting to her.[58]The Tribunal finds that Tracey shouted at the claimant for missing things, for not mopping properly, for not hoovering properly, for leaving a sheet of paper in the clean toilet, for not being able to move the hoover well, for not being able to reach to clean the tops of the windows. The Tribunal finds that Tracey used the words as recited in the facts above, including “you’re useless” and “you cant even mop the floor properly”. The Tribunal finds that the comment about the Christmas meal and wedding attendance and hoovering were made and were very upsetting to the claimant. The Tribunal finds that Tracey went to the claimant’s home and, relies on Beth’s evidence to find that Tracey shouted there about the door not being opened quickly enough. The Tribunal finds that the shouting and the criticism happened regularly from June 2022 and increased in autumn 2022 and amounted to unwanted conduct. related to disability[59]The Tribunal had to ask has the burden of proof shifted ? Has the claimant shown that there are facts from which it could find that the treatment was related to a protected characteristic ? The Tribunal accepts the credible evidence of the claimant that Tracey had made the remarks about the Christmas meal and the wedding and the hoovering. “are you OK being out with your pain ? “if you’re in pain how can you go to a wedding ?”. “why not {moving the hoover} the pain from your neck doesn’t affect your arms” Those remarks show the Tribunal that Tracey was mocking the claimant and disbelieving of the claimant’s pain. They show a scepticism about a link between performance and disability. They are sufficient for the Tribunal to find that there are facts from which it can find that the treatment of the claimant by Tracey was related to a protected characteristic. The Tribunal finds that the burden of proof has shifted. purpose or effect[60]The Tribunal finds that Tracey’s shouting had the effect of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The Tribunal took into account the claimant’s perception. It accepts her evidence that being shouted at (criticised for her performance), being told she was useless and not even able to mop the floor, and being laughed at when she could not lift the hoover and remarks being made about her attending the wedding and the Christmas meal and all of the content recited in the facts above were offensive to her. By October 2022, the shouting was affecting her mental health. Her anxiety and depression symptoms were increasing. She was often staying behind up to 45 minutes double and triple checking her work and was often tearful at leaving work and fearful that she would be phoned and shouted at. She was often phoned and shouted at. By December 2022, the effect on the claimant was so bad that her underlying depression and anxiety amounted to a disability under the Equality Act because it was having a substantial adverse effect on her ability to carry out her normal day to day activities. She was spending lots of time in bed, when not working, and was struggling to leave the house. She lost confidence, felt useless and no good as Tracey had said. Other circumstances[61]The Tribunal took into account the other circumstances of the case including that Tracey had initially told the claimant just to do her best and was aware of the claimant’s neck problems. It took into account that the cleaning was not being done to the standard Tracey wanted yet the Tribunal accepts that the standard was acceptable when Tracey needed cover, and that Tracey had not taken formal steps to discipline the claimant for underperformance.[62]Tracey could have talked to the claimant about the parts of her role that she could not manage and looked at making adjustments to the claimant’s tasks and those of other cleaners. Tracey could have refrained from mocking, she could have not laughed when the claimant couldn’t lift the hoover and tripped and fell trying to move it. The Tribunal found that in all the circumstances it was reasonable for the unwanted conduct to have that effect on the claimant. The Response in relation to being shouted at 62. The respondent filed a response, acting by its legal representatives Peninsula, in the consolidated complaints. It is silent, beyond a denial about the claimant having been shouted at and about “finding fault” and “bullying”. It makes no comment about the standard of the claimant’s cleaning. The Response says that it is submitted at a time when the respondent had not had sight of the Second Claim Form. The Tribunal had regard to the history of the proceedings and the respondent having engaged representatives.[63]The claimant’s claim for harassment of being shouted at weekly from August 2022 to dismissal succeeds. Harassment, unwanted conduct: dismissal[64]The respondent says the claimant walked out after being given notice that she was no longer needed. It does not dispute that the claimant was dismissed by Tracey Chippendale on 14 January 2023. The Tribunal accepts the claimant’s clear and consistent oral evidence on the circumstances of her dismissal. The Tribunal finds that Tracey she said to the claimant “I’m going to have to let you go.” Those words were said whilst the claimant was cleaning in the toilets during her shift. The claimant understood that to mean her employment was at an end because she walked off shift straight away and did not return. The facts record that the claimant was dismissed on the spot without notice on 14 January 2023. The respondent subsequently issued notice pay.[65]Dismissal amounts to unwanted conduct. It caused the claimant deep distress and loss of income. Related to disability[66]The Tribunal had regard to the oral evidence of the claimant and found as a fact above The claimant felt that work could have been checked after she left but the reason Tracey was coming in was because the claimant, due to her disability, struggled actually doing the work, lifting and reaching and moving, and Tracey was coming in to watch her, to make her feel uncomfortable because of her disability. The Tribunal accepts that oral evidence as persuasive as to Tracey’s motivation. That is corroborated by Tracey’s remarks “are you OK being out with your pain ? “if you’re in pain how can you go to a wedding ?”. “why not the pain from your neck doesn’t affect your arms” The Tribunal finds the dismissal was related to disability because it accepts that Tracey was watching the claimant at work, making comment about the claimant’s inability to do some of the work and yet at other times requiring the claimant to provide cover and not disciplining the claimant or raising capability or performance issues formally. purpose or effect[67]The Tribunal finds that the dismissal had the effect of humiliating the claimant. She found it offensive and immediately retorted that she had rights. She left shift mid task. The claimant’s perception[68]The Tribunal finds that the claimant was reasonable in perceiving the dismissal to be humiliating and offensive. She believed she was being dismissed because of her neck condition and pain. The claimant believed that even when she had done the work perfectly, Tracey criticised her. The claimant reasonably believed taking into account the history of criticism and being shouted at, that the dismissal was not about her standard of performance but about her being disabled. The claimant believed then and the Tribunal accepts her oral evidence corroborated by a screen shot that Tracey knew that Mel’s daughter wanted weekend cleaning shifts. The claimant reasonably perceived that she was being dismissed because of her disability and reasonably suspected that those shifts would be given to Mel’s daughter. Other circumstances[69]The Tribunal took into account that Tracey had not disciplined or formally addressed performance concerns, she had required the claimant to cover work at other times. She had made remarks showing her to be disbelieving of the claimant’s pain. She had laughed when the claimant fell over and she had watched over the claimant at work and criticized her. The Response on dismissal[70]The respondent said that the reason for the dismissal was a decline in business so that the claimant was not needed to work at weekends. The Tribunal finds it is not plausible that a pub, facing financial constraints, would cut cleaning services on Saturday and Sunday mornings after what the Tribunal assumes will be the busiest trading times, Fridays, Saturdays, and Sundays. The respondent’s reason for dismissal was therefore not plausible. Further, the Tribunal accepts the claimant’s oral evidence as corroborated by a screenshot message it saw from her colleague Jodi, to the effect that Tracey had said that she wanted Mel’s daughter to have the weekend cleaning hours if the claimant left.[71]The Tribunal looked at the Response in the round. The rest of the response is a denial of all claims. The respondent denied disabled status and knowledge of disability. It did not run a statutory defence that any discriminatory actions were those of its employee Tracey and that it should not be held responsible for them. It accepted that the claimant had a pro rate holiday entitlement of 28 days. It said notice had been paid. There was nothing in the Response read as a whole to suggest that the dismissal was performance related. The respondent, after engaging representatives, did not comply with case management orders, did not seek to amend and expand its Response in the consolidated claims and did not attend the hearing.[72]The claimant’s claim for dismissal as an act of harassment succeeds. 72. Section 212 provides that detriment does not include conduct that amounts to harassment. Having found that the claimant’s complaints succeed as harassment there is no need to also consider them under Section 13 direct discrimination, or section 39(2) any other detriment. If the Tribunal had considered them as direct discrimination detriment, then it would not have accepted that Mel was an appropriate comparator for the claimant because it could not know the standard of Mel’s cleaning. A comparator would have had to be in the same material circumstances as the claimant, so someone who couldn’t clean the tops of the windows, couldn’t always move the hoover but not because of disability. It would have used a hypothetical comparator. Holiday Pay (Working Time Regulations 1998)[73]The Tribunal accepts the claimant’s oral evidence that in all the time she worked for the respondent from 4 November 2021 to 14 January 2023 she took just one shift as annual leave and that was 3 hours on 10 December 2022 for the wedding. The claimant’s leave entitlement The Tribunal finds that the claimant was entitled, pro rata, to 28 says annual leave per year. Dealing proportionately with this matter in the absence of evidence from the respondent, the Tribunal assumes that a full-time worker would have worked 36 hours per week. The claimant work six hours per week. She was therefore entitled to one sixth of the full-time holiday entitlement. 1/6 of 28 days is 4.6 days which the tribunal rounds up, for ease of calculation, to 5 days. Five days for the claimant would mean five 3 hour shifts, that is 15 hours. Tribunal finds that the claimant’s entitlement to annual leave was 15 hours per annum. Annual leave during 2021 The tribunal then calculated what the claimant was entitled to during the first calendar year she worked for the respondent from 4 November 2021 until 30 December 2021. That was exactly 8 weeks. The tribunal decided the 15 hours by 52.14 weeks to give a weekly accrual of annual leave. That was not 0.28 hours per week. The tribunal then multiplied that by eight. The claimant’s entitlement to a weeks accrued annual leave in 2021 was 2.24 hours. The claimant was paid £9.50 per hour so that amounted to £21.28 of accrued but taken holiday pay for 2021. During 2021 there was a provision made, because of the coronavirus pandemic, to allow people to carryover untaken annual leave into the next leave year. Accordingly, the claimant was allowed to carry over the 2021 untaken leave (£21.28) into 2022. Annual leave during 2022 During 2022 the claimant was entitled to 15 hours annual leave . The Tribunal accepts her oral evidence that the only leave taken was the three hours on 10 December 2022 . Accordingly she was due 12 hours of unpaid annual leave for 2022. 12 hours at £9.50 gives £ 114.00 annual leave during 2023 The claimant worked two weeks of January 2023. Weekly accrual as calculated above was not 0.28 hours of annual leave, two weeks that is 0.56 calculated at the hourly rate of £9.15 meaning that the claimant was due £5.32 annual leave for 2023. Total holiday pay due On termination of employment the claimant was entitled to be paid accrued but untaken annual leave made up as set out above £ 21.28 + £ 5.32 + £ 114.00 in the total sum of £ 140.60 which the respondent is ordered to pay to the claimant. Remedy 50. The claimant is entitled to an award for injury to feelings for the discrimination she experienced and to claim losses flowing from discrimination. A remedy hearing has been listed and case management orders made to prepare the parties for that hearing. this judgment has been approved for promulgation by