Mrs J Morrison v Marks and Spencer plc: 2403663/2022
EMPLOYMENT TRIBUNALS
Case No 2403663/2022
Between
Mrs J MorrisonClaimantMarks and Spencer plcRespondent
Before
Employment Judge D WrightIn person for claimantDate 4 May 2025
JUDGMENT
The unanimous judgment of the Tribunal is as follows: Direct discrimination[1]The claimant's complaint of direct race discrimination is not well-founded and is dismissed.[2]The claimant's complaint of direct sex discrimination is not well-founded and is dismissed.[3]The respondent's application for a costs order under Rules 74(2)(a) and 74(2)(b) is successful under both heads.[4]The claimant is to pay the respondent's costs assessed in the sum of £2,600. The respondent being VAT registered this figure does not include VAT and the claimant does not need to pay any additional sum for VAT.[5]The claimant requested written reasons at the hearing, and these will follow in due course under separate cover. Approved by:[1]The claimant's complaint of direct race discrimination is not well-founded and is dismissed.[2]The claimant's complaint of direct sex discrimination is not well-founded and is dismissed.[3]The respondent's application for a costs order under Rules 74(2)(a) and 74(2)(b) is successful under both heads.[4]The claimant is to pay the respondent's costs assessed in the sum of £2,600. The respondent being VAT registered this figure does not include VAT and the claimant does not need to pay any additional sum for VAT.
REASONS
[1]By way of procedural background to the hearing, there was some delay because one of the lay members who had been booked to hear this case did not attend the tribunal and could not be reached by telephone or email. I am extremely grateful to my colleagues in the listings office who have managed to source a panel member who was prepared to come in at short notice, and we were able to hear the case within the time listed.[2]The claimant in this case makes claims of direct sex discrimination and direct race discrimination. These were explored in a bit more detail at the Case Management Hearing and the full background to this claim is set out in the case management order of Employment Judge Buzzard dated 15 May 2023.[3]In short, there is are two allegations of direct discrimination. The first allegation, is that the claimant complains that she was not, until she complained, paid sick pay for a period of absence in March and April 2018. The claimant said that this is an act of less favourable treatment, whereas the respondent says that any claim from this is over three years out of time. The claimant conceded this and requested an extension on a just and equitable basis.[4]The claimant complains that she was initially missing sick pay, although it is agreed she was eventually paid it. The respondent’s position is that sick pay was initially not paid in line with the respondent’s sickness at work policy. The respondent accepts that they applied this policy after a misunderstanding about the pre-1987 contract and once the error was spotted, they reversed their decision. Therefore, the reason for non-payment was management error rather than discrimination.[5]The second allegation is that on her return from sick leave in or around April 2018 the claimant’s line manager was changed. The respondent said that this was at the claimant’s request, and the change required the claim to move from the team in which she was working at the time. It is accepted that this was meant to be on a temporary basis, while a grievance the claimant had raised against the line manager was being considered.[6]The claimant further complains that later on in 2018 there ceased to be a Systems team in the claimant’s store, and therefore all members of that team had to be relocated to other duties. The claimant complains that she was transferred to the sales floor without discussion, whereas others were treated more favourably.[7]The claimant claimed that this was because she was a woman and or because her race is black-Caribbean. The claim was not able to provide any real explanation of why she believed this to be the case at the Case Management Hearing, other than suggest that she not think of any other reason for the difference treatment.[8]The respondent’s case was that others were treated in a similar way to the claimant, and that at no point was at any treatment related to her sex or her race.[9]There were also time limit issues raised at the preliminary hearing. The claimant approached ACAS on 26 March 2022, early conciliation continued until 6 May 2022 and the claimant presented her claim to the tribunal on 25 May 2022.[10]The allegations of discrimination related to events in 2018. It is correct that the claim had been pursuing grievances until much more recently, and these have been led by and these were delayed in part by COVID 19 and changes in managers dealing with grievances. It does not appear to be the claimant’s case that the way those grievances were dealt with was itself discrimination. Therefore, the Tribunal has to determine whether the claims are out of time, and if they are whether it be just and equitable to do so to extend that time Discrimination[11]We find that large amount of the breakdown in this relationship stems from a question about a change in the respondent’s bank holiday working policy, in particular, in relation to those members of staff who were on pre-1987 contracts. We were provided with a number of witness statements for people affected by this change, and all of whom have, it appears, been upset by how the changes were managed.[12]When reviewing those witness statements, we note that the statements come from a range of people, including both men and women, as well as people from a range of ethnicities. So there no suggestion on the evidence, and it is not pursued, that the decision to apply bank holiday working was discrimination on grounds of race or sex. It is possible that there could have been an arguable indirect age discrimination claim, but that is not before the Tribunal and would have been significantly out of time, and therefore we spend no further time on that.[13]From the evidence, we find that the claimant refused to provide her availability for bank holiday working, and due to a misunderstanding of the pre-1987 contract, her line manager, Jane Evans, gave her a disciplinary warning for this, although the claimant’s contract did not require her to work those days.[14]The claimant was then signed off sick during the disciplinary process with stress. She was paid statutory sick pay, but under the sick policy, Jane Evans declined to pay the claimant her contractual sick pay as the stress, which was the reason for she was signed off, flowed from a disciplinary.[15]The claimant filed a grievance against this decision, which was not upheld. She then appealed that decision. The respondent realised their initial error on the requirement to work on a bank holiday and that that error had poisoned all the subsequent decisions in this matter. They therefore rolled back the disciplinary and the decision not to pay the claimant and they repaid her the contractual sick pay. 16. the claimant accepted in cross examination that race and/or sex played no part in the decision to withhold the pay. Therefore, we dismiss this allegation regardless of any question of time limits.[17]During the first grievance, the claimant asked for a different line manager. Initially Ms Evans was off work during this time, and the claimant stayed in her own role whilst reporting to somebody else. Ms Evans then came back and the claimant was temporarily moved to the shop floor, into a role which she sometimes did for overtime work. In this role she had a different line manager.[18]Whilst the claimant was still on the shop floor, a decision was made to close her team. Her team was a team of two system support staff. Miss Evans took Kevin Morrissey (the other team member) to an informal meeting in the canteen and discussed which team he wanted to move to. It appears from the evidence that Mr Morrissey was moved to his preferred alternative role in the lingerie department.[19]It is common ground that no such discussion took place with the claimant. We had to ask ourselves, was there a difference in protected characteristics between the claimant and Mr Morrissey. We find that there was. Mr Morrisey is male whilst the claimant is female, Mr Morrissey is white and the claimant is black-Caribbean.[20]The question for the Tribunal is whether that difference is sufficient to shift the burden to the respondent. We note the need for ‘something more’ than a mere difference in treatment, and remind ourselves of the case of Madarassy v Nomura International Plc [2007] EWCA Civ 33.[21]We find that this does not shift the burden to the respondent. But if we are wrong, there were other differences which explain why the claimant was treated differently. At the relevant moment in time the claimant was not in her normal team but was working on the shop floor. She did not report to Miss Evans, and therefore Miss Evans could not and, we find, would not talk to her about it. Clearly, there was a breakdown in communications here, but we find that this was not to do with race or sex.[22]We find that there was very little involvement from HR here. We find that the claimant’s temporary manager was not made aware of the situation, or if they were, they did not deal with it and HR did not chase it up. We find that the failure to have a conversation with the claimant about the closure of her team stemmed from the fact she had a different line manager at this point. That stems from the grievance which she raised, and that stemmed from the bank holiday working confusion. And the claimant accepted that that was not linked to her race or sex. As such we find that it is not made out that the respondents treatment of the claimant was due to a protected characteristic. We find that the overall reason was a failure of management and human resources to properly discuss the changes with the people involved.[23]There were also some questions raised during the hearing about how this particular team was chosen to be closed, but that is not before us as an allegation of discrimination, and when the team in question was one white male and one black female, we find there was no evidence to support a claim that this decision was due to race or sex, and therefore we dismiss that claim. Time Limits[24]In case we are wrong on the discrimination point, we went on to consider the question of time limits. Clearly these claims are out of time. ACAS early conciliation was not started within the three-month time limit, instead it was several years after the event.[25]It is trite law that pursuing a grievance does not pause the statutory clock on time limits. However, it is a factor that we can consider when looking at whether it be just and equitable in all the circumstances to extend this time limit.[26]We note that the claimant was, for a period, at least nominally represented by trade by a Trade Union. The claimant indicated that she was not happy with the representation she got from that represent and so she changed to a new representative. Again, she was not happy with that representation, and so she quit the union.[27]Clearly, that suggests some perceived issues with quality of the representation. However, despite not being happy with the advice received, the claimant’s, evidence was that she then did not do any research on her rights or the process for bringing a claim. She argues that she was under a misapprehension that she needed to wait to resolve the grievances before initiating her claim and therefore why would she look in her rights and time limits when she thought she had to wait?[28]We explored where this belief came from and all she could say was that she “just knew she had to wait”. That is not, we find, a satisfactory response and it is not the action of a reasonable litigant.[29]We also do take into account the fact that the claimant was going through a torrid time at home with ill health and loss of her partner. We also take note of the impact of COVID during this time on delaying the outcome of the grievance as well as more failings on behalf of the respondent to get to grips with her grievance. However, even when we take those facts into account, we find that it would not be just and equitable in all the circumstances to extend the time limits in any event. Therefore, even if we are wrong on the discrimination points, we would still dismiss the claim on the grounds of a lack of jurisdiction because they were brought out of time. Costs[30]Following our dismissal of the claim, the respondent made an application for costs. In relation to this application, both parties had the opportunity to provide written and oral submissions. But in short, the respondent applied under Rule 74(2)(b) that there were no reasonable prospects and Rule 74(2)(a) that the claimant behaved in a vexatious, abusive or unreasonable manner in conducting litigation.[31]In relation to 74(2)(b), that of no reasonable prospects, we noted that the claim was not struck out at an earlier stage and no deposit order was made, but we reminded ourselves that it is an extremely high threshold to strike out a discrimination claim. Because of this high threshold, it is incumbent upon a claimant to only advance genuine claims with evidence.[32]During the final hearing, the claimant accepted that the allegation about sick pay was not based on race or sex and that she never believed that to be the case. Clearly, in relation to that allegation, there were no reasonable prospects[33]Moving on to the second limb, that of the manner in which the claimant was moved to a new role when her team was shut down, we find that discrimination was not really tested in cross examination or submissions. When pressed on this point the claimant was equivocal on whether the treatment was due to discrimination or not, but taken at its highest her case amounted to “well, what else could it be?”. We find that there were no reasonable prospects of proving discrimination on that allegation.[34]Furthermore, in relation to the time limits point, we find that there were no reasonable prospects. It was explained to the claimant at the Case Management Hearing that a grievance does not extend time. There was no allegation that the delays in the grievance were due to discrimination in such a way as to bring an allegation of continuous course of conduct.[35]Therefore, we find that the gateway is open under Rule 74(2)(b) on both allegations.[36]In relation to Rule 74(2)(a) we find that the claimant has been represented at various stages, both pre and post issue, albeit she was unrepresented at the final hearing. She was warned of the weak nature of her case by the respondent and the judiciary, and she dug her heels in.[37]There were not any large offers to settle by the respondent, there was simply a drop hands offer. But we note this was not the standard ‘go away and we won't apply for costs’ drop hands offer. Within the offer, Ms Coo, for the respondent, politely and clearly set out all the concerns the respondent had with the claimant's case, and the claimant ignored those.[38]Whilst a litigant you should not rely on legal advice from their opponent, they should listen to the concerns raised (especially when they match concerns raised by the judiciary) and then go away and consider them.[39]We also take into account the last-minute amendment application, which was refused the day before the hearing, to try and bring in a breach of contract claim. The claimant saying with her application that the breach of contract was the core of the claim, albeit she did not drop the discrimination claim.[40]At this point, we find, in light of that assertion, that it was unreasonable to continue to pursue the discrimination claims. The panel had a long and detailed discussion about whether the claimant's conduct reached the threshold of vexatious or abusive, but eventually we determined that whilst it was very close, it did not quite cross the threshold, although it is entirely possible that a differently constituted panel would have come to the alternative decision.[41]With the gateway being open under both of those rules, we had to go on to consider our discretion whether it would be appropriate to make a cost order. We find that in this instance, the claimant had been given plenty of warnings over two years, at times she had representatives, and she continued to act in a way which wasted the respondent’s time and the Tribunal's time.[42]We found, in principle, that a costs order should be made here.[43]It was suggested on behalf of the claimant that because the respondent was only asking for their counsel fees rather than their solicitors fees, that we should not exercise our discretion to award make a cost order. We do not accept that. If anything, that restraint was a sign of the respondent acting reasonably in relation to the sums claimed.[44]We also acknowledge that we did make criticism of respondent’s conduct. Most of that criticism related to their management of the grievances, but we already found that that was not discrimination and that it was not of such a nature to bring a successful claim in the Employment Tribunal.[45]We also criticised the respondent for being late with witness statements and bundles, but at the outset of the hearing the claimant accepted that that did not prejudice her. Had the respondent been asking for their costs in relation to preparing the statements and the bundles, we would almost certainly have said no to those costs in light of the delay. As it is, they are seeking Counsel's fees only, and we therefore find it appropriate to exercise our discretion.[46]There was then a discussion about the claimant's income and outgoings, and it is clear that the claimant has very little money spare each month. She has no savings, but she says she has a few thousand pounds worth of Marks and Spencer shares which she could sell and which are worth more than £2000.[47]We found that, whilst the respondent is free to pay counsel whatever they want, this was a case where they would have been perfectly safe to instruct a more junior barrister who would have cost less money, and therefore, whilst we awarded costs, we did make a reduction to those fees to reflect the fact that the claimant should only pay what is reasonable.[48]Those costs were assessed at £2600.