Ms E Ticiuc v Mr R Fuller: 3313050/2021
JUDGMENT
[1]Judgment under Rule 21 having been entered against the Respondent for damages to be assessed; by 23/3/22 the Respondent shall pay the Claimant the sum of £7403.51 calculated as set out below.REASONS
[1]The Claimant presented a claim for discrimination on the grounds of religion and belief on 13/7/2021 against “Rob Fuller (Director)” c/o RNR Recruitment Ltd (“RNR”) and against Medicom Healthpro Ltd. She had obtained an EC certificate against Rob Fuller only so the claim was accepted against him only. An ET1 was sent by letter dated 10/9/2021 to him at the RNR address namely The Ridings Northampton Northamptonshire NN1 1EZ. He failed to file an ET3 and in January 2021 judgment was entered against him personally under Rule 21 for damages to be assessed.[2]I heard evidence from the Claimant whose first language is Romanian, with the assistance of her son Mr S Ticiuc, who speaks good English. She confirmed the contents of her ET1 and Particulars of Claim, her email dated 26/1/22 and gave me some additional information. I then heard evidence from her son himself.[3]On 1/6/2021 the Claimant started working as a warehouse operative at Medicom Healthpro Ltd through RNR as an agency.[4]She is a Christian and does not work but rather attends church on Sundays.[5]On 17 June 2021 she received a message asking her to work overtime on Sunday 20 June 2021. She replied saying she was not available on Sundays and explaining why. On 20/6/21 she was sent a message by an RNR advisor namely Ryan Ashmore saying she was not a “right fit for the work”, telling her not to attend the Monday shift, and in effect terminating her contract.[6]On 21st June 21 the Respondent who is a prominent figure within RNR ratified the decision in a phone call to the Claimant’s son telling her “(If for whatever reason the client Medicom) decides that the person we supplied is not the right fit we should terminate the contract…. I don’t have time to waste on this…“Ohh, is she now depressed because she lost her job?” (in a sarcastic manner); and again on 30 June 21 he stated “you don’t have a chance to get something from my agency so take care with ACAS”.[7]The Claimant made various unsuccessful requests to get written reasons for her dismissal/termination. She was not entitled to written reasons for dismissal under section 92 ERA 1996 because even if she was an employee, she did not have two years’ service.[8]The Claimant’s judgment in her favour amounts to a finding that she has suffered direct or unjustified indirect discrimination on the grounds of her religion, consisting in the termination of her contract. The Respondent not having defended, he has been held liable personally for this.[9]The Claimant in her ET1 described her upset caused by this thus “She was in depression…being a more sensible (sic) and vulnerable character, 3 days without getting from bed or willing to eat or do some other activities. Also it took 2 weeks and a half to get partially negative thoughts away and start a steady life balance”.[10]In an email dated 26/1/22 written by her son she has sought to paint a more dismal picture stating that she lost sleep for two months and that her termination caused a “suicidal depression”. There is no medical evidence to support this.[11]She also refers to “loss of her good name, self-esteem relationship in society and position in the community”.[12]The Claimant had been working through the RNR agency for less than three weeks by the time of the termination, and while I accept that a degree of upset for a week or two would have been natural in response to a summary termination triggered apparently by her Sunday religious observances, I find a degree of exaggeration in these more recent suggestions by her of a severe adverse reaction, which would in any event would have been a disproportionate response. I prefer the picture painted in the ET1.[13]I find that the matter falls within the lower Vento band and that the correct award for injury to feelings is £6000.[14]Aggravated damages are for cases where the injury was inflicted by conduct which was high- handed, malicious, insulting or oppressive. Having regard to the Respondent’s dismissive and sarcastic comments when the Claimant’s son tried to engage with him directly and through ACAS, I find that an additional award of £1000 is due as aggravated damages.[15]Interest is due on these damages (total £7000) at 8% pa from 20/6/21 to 9/3/22 in the sum of £403.51.[16]The Claimant confirmed that she made no claim for loss of earnings as she obtained another agency job in July 2021 and she was unable to quantify any such loss. The total award is thus £7403.51.[1]The Respondent applied on 31/3/22 for reconsideration of the judgments, claiming that he had not receive the ET1 and was unaware of the proceedings until his receipt of the remedy judgment.[2]Even if the ET1 was successfully delivered to The Ridings Northampton Northamptonshire NN1 1EZ, it now appears that that while that is an address for the Respondent’s company, it is not the Respondent’s personal address.[3]If he had been served with the ETI in 2021, it seems to me likely that he would have defended the claim then, as he now seeks to do.[4]I have taken into account the Claimant’s opposition (by her son’s email dated 6/5/22) to the application for reconsideration, but nothing in it amounts to evidence of service of the original ET1 on the Respondent himself.[5]On a balance of probabilities, I am satisfied that the ET1 was not served and hence the Respondent was not in default and the Rule 21 and remedy judgments must be set aside. Case Number: 3313050/2021 CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the Judgment sent to the parties on 10/6/2022 is corrected by deleting paragraph 2 of the Judgment Employment Judge Burns Date: 20/6/2022 2/7/2022. N Gotecha Important note to parties: Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing.