Mrs B Gbefa v Primary Care Recruitment Ltd: 2501733/2017

EMPLOYMENT TRIBUNALS

Case No 2501733/2017

Between

Mrs B GbefaClaimant

Primary Care Recruitment LtdRespondent

Before

Employment Judge Hunter

Date 7 February 2019

JUDGMENT

[1]The claim of breach of contract is withdrawn but will not be dismissed .

[2]The claims against R2 are dismissed on withdrawal .

[3]The appli cation by R2 for a costs order is refused .

REASONS

[1]1 . The relevant facts 1.1. The claimant brought a claim of pregnancy discrimination against R1 which was found proved on 29 th April 2015. Remedy was to be decided at a later date. That Tribunal cha ired by Employment Judge Hunter found the claimant was “employed” by R1 within the definition of employment in the Equality Act 2010 ( EqA) which is a broader definition than that under the Employment Tribunals Act 1996 (ETA) . It is the latter , narrower , definition which applies to claims of breach of contract under The Employment Tribunals ( Extension of Jurisdiction) Order 1994 ( “the Order). The Order only confers on Employment Tribunals jurisdiction to determine claims of breaches of , or connected to , contacts of employment if the breach arises or is outstanding upon termination of employment. Case Number 2 5 0 1733 /17 4 bring it later in the County Court. I am satisfied there would be legi timate reason for doing so . If the claimant succeeds in her EqA claim it is likely she will not need to do so , but if she fails , she might. Therefore, that claim will not be dismissed. 2.3. At the time the claimant presented the claim against R2 she co uld not have known what Ms Hartley woul d say . From the claimant’s point of view R2 having offered her a job simply withdrew that offer. I explained in layman’s terms that any direct discrimination or victimisation claim involves deciding the “reason why” a n individual acted as they did. What a person does not know cannot be their reason for doing anything. In a case where one person , motivated by a claimant’s protected act, gives wrong information to another who is not so motivated but in reliance on the i nformation acts to the detriment of the claimant , it is not possible to add the former’s motivation to the latter’s act so as to affix liability to the latter, even where both are employed by the same employer ( CLFIS UK Ltd - v - Reynolds ) . The claimant and her husband took time to consider the position . They then informed me they wished to withdraw but may want to have Ms Hartley give evidence for the claimant . I said they could apply for a witness order when a trial date had been fixed. 2.4. Mr Gbefa ask ed if Joanne Wood , Victoria Cowan and Andrew Chandler could be added as respondents. Rule 34 would permit that without Early Concilaition be ing undertaken with them . However, they would have to be served and given 28 days to respond. The effect would be to delay progress to trial . The claimant did not want that. Also unless there is concern about the solvency of R1 there is little point. The claimant did not pursue this application . 2.5 Mr Buckle made a costs application which I rejected without havin g to hear from the claimant. Rule 76 says a Tribunal may make a costs order .., and shall consider whether to do so, where it considers a party has acted unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings ha ve been conducted ; or any claim .. had no reasonable prospect of success . 2.6 . The Court of Appeal and EAT have said costs orders in the E mployment T ribunal : are exceptional and the party’s conduct as a whole needs to be considered , p er Mummery LJ in Barnsley MBC v. Yerrakalva

[2011] EWCA 1255

If a party allows preparations for the hearing to go on too long before abandoning an untenable case that party may be liable for costs. However, I must consider whether the claimant has brought or conducted the proceedings unreasonably in all the circumstances, and not whether the late withdrawal of the claim was in itself unreasonable , see McPherson v BNP Paribas (London Branch)

2004 ICR 1398

, In National Oilwell Varco (UK) Ltd v Van de Ruit EATS 0006/14 in which McPherson was cited a claimant had not acted unreasonably in withdrawing his claim on the day prior to a pre liminary hearing . 2.7. In my judgment, the claimant had every reason to name R2 initially. Mr Buckle provided a copy of an email sent to the claimant warning her he would apply for costs if she did not withdraw against R2 . Mr Buckle will doubtless have told her Ms Hartley’s statement meant she was unlikely to succeed , but that is what any re presentative would say . When I , from a position of neutrality, pointed out the problems with the case against R2 , the claimant did exactly what she should . To penalise her with a costs order would be wrong . Case Number 2 5 0 1733 /17 5 ___________________________________ T M Garno n EMPLOYMENT JUDGE

[2]JUDGMENT SIGNED BY EMPLOYMENT JUDGE ON 28 th FEBRUARY 2018

[3]Case Number s : 2501733 /2017 EMPLOYMENT TRIBUNALS Claimant: Mrs B Gbefa Respondent: Primary Care Recruitment Limited Heard at: North Shields On: 7 and 8 June , 201 8 Before: Employment Judge Nicol M embers: Ms L Georgeson Mrs P Wright Representation Claimant: Mr B K Gbefa, husband Respondent: Ms S Brewis, Counsel

[5]Upon hearing the parties it is the unanimous Judgment of the Tribunal that 1 t he claimant’s complaint that she suffered a d etriment because she was victimised by the respondent as set out in Section 27 of the Equality Act, 2010, is well founded and 2 t here shall be a hearing to decide the appropriate remedy on 3 August, 2018, and the parties shall comply with the Order made by t he Tribunal setting out directions for the preparation for the hearing