Mrs A Furness v P3 People Management Ltd and Ms C Dean: 2404379/2023

EMPLOYMENT TRIBUNALS

Case No 2404379/2023

Between

Mrs A FurnessClaimant

P3 People Management Ltd and Ms C DeanRespondent

Before

Employment Judge Tobin

Date 7 March 2024

JUDGMENT

[1]The followings claims are struck out in respect of the actions of third parties on the grounds that the Employment Tribunal does not have jurisdiction (as detailed in the respondent’s Grounds of Resistance at paragraph 6):a. List of issues allegation of harassment under point 3.1.1 and corresponding direct discrimination allegation under allegation 4.2; and

b. List of issues allegation of harassment under point 3.1.3 and corresponding direct discrimination allegation under allegation 4.2

c. List of issues allegation of harassment under point 3.1.4 and corresponding direct discrimination allegation under allegation 4.2

[2]The following allegations are struck out as having no reasonable prospects of success (pursuant to rule 37(1)(a) of the Employment Tribunal Rules of Procedure 2013):a. List of issues allegation of harassment under point 3.1.2 and corresponding direct discrimination allegation under allegation 4.2 Case Number: 2404379/2023 2

b. List of issues allegation of harassment under point 3.1.5 and corresponding direct discrimination allegation under allegation 4.2

c. List of issues allegation of harassment under point 3.1.6 and corresponding direct discrimination allegation under allegation 4.2

[3]There are no outstanding allegations, so proceedings are now dismissed.

REASONS

Reasons for the Judgment having been given orally at the hearing, Written Reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ Case Number: 2404379/2023 1 EMPLOYMENT TRIBUNALS Claimant: Mrs Angela Furness Respondent:(1) P3 People Management Limited and

(2) Ms Charlotte Dean JUDGMENT having been given at the hearing and reasons having been requested by the respondent in accordance with Rule 62(3) of the Employment Tribunal Rules of Procedure 2013, reasons are set out as follows. REASONS

The hearing

[1]The claimant claimed that she was harassed and discriminated against by the respondents on the grounds of her age, in breach of s26 Equality Act 2010 and s13 Equality Act 2010 .

[2]The case was summarised by Employment Judge Benson following the case management hearing of 13 December 2023 and Judge Benson drafted an appropriate list of issues. Judge Benson was concerned with both jurisdictional issues and the merits of the claimant’s case, so she ordered this hearing to consider:2.1 Whether the Tribunal should strike out those claims in respect of the actions of third parties on the grounds that it has no jurisdiction as detailed in the grounds of response at paragraph 6. The claimant confirmed that the actions of persons who are not respondents (or their employees) to these proceedings about which she complains are: the actions of Mr Melia in allegation 1 set out in the introduction in her particulars of claim; the actions of Mr Melia and Glaisyers Solicitors in respect of allegation 3; and the actions of witnesses (other than Charlotte Dean) in allegation 4.2.1.1 That the claims were brought outside the requisite time limits within the Equality Act 2010 (“EqA”). Details are set out at paragraph 4 and 5 of the grounds of resistance.

2.1.2 That the claimant has no or little prospects of showing that her claims can succeed on their merits.

2.2 Should the claim (or any part of it) be struck out because it has no reasonable prospects of success; or that the claimant should be ordered to Case Number: 2404379/2023 2 pay a deposit to continue with her claim because it has little reasonable prospects of success. This is on the following basis:

[3]Judge Benson directed that no evidence would be heard at this hearing and that the Tribunal would consider key documents and submissions. Accordingly, I considered a bundle of documents prepare by the respondents and disclosed to the claimant amounting to 140 pages together with a chronology and cast list. Ms Rollins prepared a skeleton argument for this hearing which was helpful, although it was provided to the Tribunal and the claimant on the morning of the hearing. I delayed the start of the hearing to allow sufficient time for the claimant and I to read the respondent’s skeleton argument. The claimant made oral submission and answered questions from me. Ms Rollins also gave some oral submissions to augment her skeleton argument.

The relevant law

[4]Rule 37 of the Employment Tribunal Rules of Procedure says: (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; The case

[5]The events in question occurred from 15 February 2020 when the claimant was engaged by the first respondent to deal with a grievance involving My Space Housing Solutions Ltd (“My Space”) and a My Space’s employee, DH. The claimant was engaged by the first respondent to assist with this grievance on behalf of My Space. DH subsequently issued Employment Tribunal proceedings against My Space and on 5 February 2021 a consultant to My Space called Jonathan Melia informed an Employment Tribunal at a Preliminary Hearing that the claimant may not be available or willing to give evidence at the final hearing. Allegations 3.1.1 and 4.2

[6]On 11 November 2021 during a meeting with the claimant and the second respondent Mr Melia explained the contents of the comments he made at the Preliminary Hearing. According to the claimant he said that he told the Judge that the claimant was unwilling to cooperate as a witness because he assumed she might have retired or moved abroad. The claim contended this comment was not challenged at the time and “appeared to be endorsed” by the second respondent. Allegations 3.1.2 and 4.2 Case Number: 2404379/2023 3

[7]The claimant corresponded with the second respondent in the immediate aftermath of this meeting and on 17 December 202. The claimant emailed Mr Melia saying that the second respondent had specifically instructed her not to communicate with the client, which was “putting me in a difficult position”. The second respondent then emailed the claimant terminating her relationship with the first respondent on 18 December 2021.

[8]The allegation identified on the list of issues refers to the claimant contended that this termination was because the claimant believed was due to perceptions about her age following the comments of the third party (seemingly made at the preliminary hearing over 9 months earlier) or related to her age, and she relied upon Mr Melia’s reference to retirement, 5 weeks before. Allegation 3.1.3 and 4.2

[9]During February or March 2022, some 3 months later the claimant was advised by Nicola Clarke of Glaisyers solicitors that she was not needed as a witness at DH’s Employment Tribunal hearing. The claimant said that she understood that this decision was made in consultation with Mr Melia. Allegations 3.1.4 and 4.2

[10]The Tribunal hearing went ahead on 5 September 2022, 12 to 14 September 2022 and 10 November 2022. The claimant contended that her evidence was covered (and misrepresented) by other witnesses.

[11]The allegations derive from the claimant being aggrieved that she was not going to be called as a witness in the Tribunal claims as she contended that she had the right to be heard. Allegations 3.1.5 and 4.2

[12]The claimant said that the second respondent sent her several texts and emails between 14 and 20 November 2022, which she says were discriminatory. Allegation 3.1.6 and 4.2

[13]On 12 December 2022 the claimant sought to raise a grievance with the second respondent which raised age discrimination and harassment. Other relevant background information

[14]The claimant commenced ACAS Early Conciliation from 3 March 2023 to 20 March 2023 and 3 March 2023 to 17 March 2023 for the second respondent. A Claim Form was submitted and received at the Employment Tribunal on 12 April 2023. The Claim Form mooted a whistleblowing claim but that never materialised.

[15]The Response contended that the that the claimant was not an employee of the first respondent under the EqA and the events that post-date December 2021 Case Number: 2404379/2023 4 (after the contract ended) were not matters that the Tribunal could determine, unless the claimant could show that they fall under s108 EqA, which they said was unlikely. The respondent contended that they were not liable for the actions of third parties. The respondents also contended the claims were brought outside the appropriate statutory time limits. My determination

[16]There was no dispute in respect of the list of issues prepared by Judge Benson [see Hearing Bundle pages 49-52]. The claimant claimed both harassments related to age and direct age discrimination in respect of the same factual allegations, notwithstanding that she could not win on both. Jurisdiction – third party harassment

[17]Paragraph 6 of the Response says as follows: The Respondents further contend that there is no basis upon which they can be liable for the allegations set out under the Introductions section of the ET1 and, in particular adopting the same numbering would contend as follows: (i) The allegation referred to as the “retirement comment” was made by Johnathan Melia (“JM”) of My Space Housing Solutions Limited (“My Space”). My Space was a client of the First Respondent, and the Claimant was supplied by the First Respondent to work for My Space for a short period of time. JM operated as a Consultant for My Space. Therefore, there is no basis upon which the First Respondent or Second Respondent could be liable under the [EqA] for the actions of JM or My Space. (iii) The decision that the Claimant was no longer required as a witness in the Tribunal hearing pursued by [DH] against My Space was a decision taken by My Space in conjunction with its advisers. Therefore, there is no basis upon which the First or Second Respondent could be liable for this matter under the [EqA]. (iv)The First and Second Respondent had no involvement with the tribunal hearing pursued by DH referred to above and therefore the Respondents would reiterate that they could not be liable under the [EqA].

[18]An employer may be liable for harassment under s26 EqA where it failed to safeguard the employee from harassment by a third party, provided the failure itself was related to the relevant protected characteristic and had the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment: see Conteh v Parking Partners Limited

2011 ICR 341

EAT. However, this was clarified by the Court of Appeal in Unite the Union v Nailard

2019 ICR 28

so that the employer’s own acts or failures to act must themselves constitute harassment under the s26 EqA definition, i.e. the claimant’s protected characteristic, in this instance the claimant’s age, must form part of the motivation for the employer’s inaction. In Bessong v Pennine Care NHS Foundation Trust

2020 ICR 849

the Employment Appeals Tribunal noted that following Nailard the EqA imposes no explicit liability on an employer for a failure to prevent thirds party harassment.

[19]A similar rationale applies to direct discrimination under s13 EqA: see Macdonald v MOD & Another

2003 ICR 937

HL.

[20]The working arrangements is rather convoluted. The claimant was a HR Consultant who provided her consultancy services to the first respondent through Case Number: 2404379/2023 5 her limited company (first Angels Aunts and then Furness Business Services). The first respondent was a HR Consultancy Business and the second respondent was the owner and managing director of the first respondent business. The claimant was not an employee of the respondents; she provided services on an ad hoc basis from April 2015 until 18 December 202, when the arrangement was terminated.

[21]The claimant accepted that, at the material times, she was not an employee of the first respondent. She was not on the respondent’s payroll. She was responsible for her own tax, and she was paid through the production of invoices. The claimant worked on an ad hoc basis and had control over the hours she worked and how she did that work. A substitute was available if the claimant did not wish to work. Allegations 3.1.1 and 4.2

[22]The Response contended that Mr Melia made the comment in reply to the claimant raising an application to amend her claim to bring an allegation about how the claimant had conducted a grievant meeting. The comment was made with a view to demonstrate possible prejudice to My Space as the external consultant (i.e. the claimant) may not be available or willing to give evidence. The Response says the claimant took exception to Mr Melia’s comment following the Preliminary hearing, so she was well aware of the comment shortly after the hearing of 5 February 2021. The Response said that matters culminated over 9 months later at the meeting of 11 November 2021.

[23]Context is of course everything. The allegation appeared weak, and the claimant did not appear to take any material steps about the comment in the aftermath of what she was told. I calculate that this allegation is 1 year and 23 days out of time. However, the claimant felt strongly enough about this to proceeding in issue proceedings in April 2023 and she could not provide me with a credible or convincing explanation of the delay.

[24]That said the complaint is largely against Mr Melia and for the reasons set out above that claim against a third part cannot proceed. The Tribunal does not have jurisdiction.

[25]The claimant also contended that the second respondent “appeared to endorse” the comment although no further details were supplied and the claimant added nothing of substance to that allegation at this hearing. The allegation against these respondents are paper-thin. There was nothing contended that the second or first respondent did wrong other than not saying anything to support the claimant. There are no allegations that the respondents participated in making discriminatory comments, as in Nailard above, indeed the reverse is alleged that the Ms Dean did not challenge this. Failing to act may attach liability in some circumstances, but not in the circumstances of this case: see Bessong. It is clear that the claimant may have been unhappy as events unfolded but not speaking up for her at this exchange cannot establish a legal liability against Ms Dean or the company on the facts as pleaded. That party of the claim has no reasonable prospects of success. Case Number: 2404379/2023 6 Allegation 3.1.3, 3.1.4 and 4.2

[26]Notwithstanding these allegations are between 8 months or more out and 4 days of time, the allegation is made against 4 third parties, My Space, its consultant, its legal advisers and possibly the witnesses at the Employment Tribunal Hearing. I do not believe the claimant will be able to establish a detriment in this allegation because she has no right to be heard at a Tribunal hearing in which she is not a party. Indeed, I believe there would be strong public policy considerations weighed against this argument. However, for the response given above I dismissed this claim because there is no jurisdiction to pursue these arguments against the third parties. No reasonable prospects of success

[27]Allegations 3.1.2 and 4.2

[28]This allegation is 11 months 16 days out of time. The claimant proffered no clear explanation as to why this allegation could not be pursued sooner. The first and second respondent proffer a very clear explanation as to why the claimant’s engagement was brought to an end. The claimant did not really engage with this explanation, she merely rejected this for a speculative counter-factual reason that did not have a shred of evidence that might support it. The allegation was without proper foundation it had no reasonable prospects of success and I dismiss it accordingly. Allegations 3.1.5 and 4.2

[29]Again, this allegation is out of time. Again, I could not see any just and equitable basis to extend time to allow this claim to proceed. We went through the text messages. We could not identify the alleged discrimination on the grounds of age or the alleged discrimination at all. I could not see the basis of facts from which the burden of proof, under s136 EqA, might switch. This allegation has no reasonable prospects of success. Allegations 3.1.6 and 4.2

[30]This is the only complaint brought within the statutory time limit. So, the claimant contends that not dealing with a grievance which referred to age discrimination and harassment amounts to direct discrimination and harassment itself. Notwithstanding her various delays in raising these complaints. The claimant was not an employee of the first respondent and that she was in no contractual relationship at that stage. She had no contractual right to a grievance. To say that not hearing a complaint about discrimination amounts to discrimination itself is a circular argument and is devoid of merit in this case. This allegation has no real prospects of success. Case Number: 2404379/2023 7