Miss K O’Driscoll v Milton Keynes Q-Academy and Ms M Lewis: 3315967/2019

EMPLOYMENT TRIBUNALS

Case No 3315967/2019

Between

Miss K O’DriscollClaimant

Milton Keynes Q-AcademyRespondent

Before

Employment Judge Tynan

Date 22 August 2023

JUDGMENT

Employment Tribunals Rules of Procedure 2013 – Rule 21 No response having been received to the claimant’s complaint that she suffered unlawful discrimination, relying on the protected characteristic of her disability, succeeds. The remedy to which the claimant is entitled will be determined at a subsequent hearing. JUDGMENT

[1]Ms Maria Lewis is joined as a respondent.

[2]The claim against Milton Keynes Q-Academy Limited is dismissed.

REASONS

Background

[1]This open preliminary hearing was directed by Employment Judge Tynan on 25 September 2021 to determine the following issues:1.1 Whether at the relevant time the claimant was a disabled person for the purposes of s.6 Equality Act 2010 and, if not, whether her claim should be struck out pursuant to Rule 37 of the Employment Tribunals Rules of Procedure.

1.2 Whether Maria Lewis should be added as respondent to the proceedings.

[2]I do not have the file in this case and have not been provided with all of the documents. The claimant tells me that pursuant to case management orders she sent an impact statement and documents relevant to the disability issue to the tribunal on or before 11 June 2020. However, all emails over a year old are deleted from the system here and the claimant has not put any document before me. Accordingly, I am in no position to deal with the disability issue. 1 ph judgment + cm Nov 2014 wip version

[3]As far as the addition of parties is concerned, Rule 34 provides:- “Addition, substitution and removal of parties The tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the tribunal which it is in the interests of justice to have determined in the proceedings;

[4]By virtue of Rule 29 that power can be exercised at any stage.

[5]As far as discrimination cases are concerned the employer and the alleged employee perpetrator are jointly liable.

The Issues

[6]The addition of a party is the exercise of a discretion by myself. Exactly the same principles apply to an amendment to add a party as to any other sort of amendment. As per Selkent Bus Co Limited v Moore I have to take into account the nature of the amendment, the applicability of time limits, the timing and manner of the application and all the other circumstances of the case. I need to undertake a balance of hardship and injustice test.

[7]I have not seen but I have been told that the Acas early conciliation certificate specifically named Ms Maria Lewis as the respondent.

[8]The claim form names Ms Maria Lewis at paragraph 2.1 as the person against whom she was making a claim.

The Hearing

[9]The nearest I can get to how it came to be that Milton Keynes Q-Academy Limited was named as respondent is contained in the record of a preliminary hearing heard on 14 May 2020 by Employment Judge Tynan who recited:- “However, it seems that on the tribunal’s initial review of the claim form, the correct respondent was identified as Milton Keynes Q-Academy Limited.”

[10]The summary goes on to state:- “The claimant confirmed to me that she was employed by Milton Keynes Q-Academy Limited albeit that she regards Ms Lewis as having been responsible for the company’s treatment of her…. In any event the claimant told me she wished to pursue complaints against them both.”

[11]Employment Judge Tynan went on to state the following:- “I am minded to permit the claimant to amend her claim by naming Ms Lewis as a second respondent to her discrimination complaint. However, before I do so I shall allow Ms Lewis an opportunity to make written representations to the tribunal if she has any objections to that course of action. I shall direct the tribunal to write to Ms Lewis, giving her 14 days in which to make any written representations as to why she should not be joined as a second respondent to the claim. Pending any decision in relation to Ms Lewis it would not be appropriate to make substantive case management orders in this case or to list the case for a final hearing.”

[12]On 11 June 2020 the employment tribunal wrote to Ms Lewis as follows:- 2 ph judgment + cm Nov 2014 wip version “Following a case management hearing on 14 May 2020, the tribunal is considering whether you should be added as a second respondent to the claimant’s claim against Milton Keynes Q-Academy Limited, on the basis the claimant alleges you were responsible for the company’s alleged discriminatory treatment of her, namely the termination of her employment on grounds of her disability. If you have any objections to being added as a second respondent you should write to the tribunal within 14 days of the date of this letter setting out your objections. A copy of the claimant’s claim form is enclosed.”

[13]On 18 June 2020 Ms Lewis responded as follows:- “In response to a letter dated addressed to myself, Maria Lewis, on 11 June 2020 I object to the tribunal adding me as a second respondent to the claimant’s claim of disability discrimination. The decision to remove the claimant’s post as Bar Manager was made at a board meeting on 17 January 2019 whereby the company’s four directors, which includes myself and the claimant were present. The rationale for removal was discussed and recorded in the minutes which are attached. The decision was made by vote and whilst I was present I did not vote as I was chairing the meeting. Therefore, I cannot have made any discriminatory decision or be responsible for the alleged discriminatory act namely, the termination of the claimant’s employment on grounds of her disability.”

The Facts

[14]Thus, it came to be that this open preliminary hearing was directed in the letter dated 25 September 2021. Quite why there was such a long delay Is not known.

[15]As far as Milton Keynes Q-Academy Limited is concerned, no response was filed and consequently judgement pursuant to Rule 21 was issued by Employment Judge Ord on 4 February 2020. However, the respondent was dissolved on 13 October 2020 and, as no legal entity exists, the claim against it must stand to be dismissed.

[16]The claimant claims she was disabled by reason of endometriosis and/or fibromyalgia. She told me that she suffered form endometriosis for about a year prior to February 2019 and had symptoms of fibromyalgia prior to February 2019. She accepts that she was only diagnosed with fibromyalgia on 12 February 2019.

[17]Ms Lewis points to the board meeting minutes from 17 January 2019 wherein two other directors voted to remove the claimant from the bar manager’s position and consider a supervisor’s role for her. As such, Ms Lewis says that, given that the diagnosis of fibromyalgia was only made and communicated to her on 12 February 2019, the decision to remove the claimant’s position as bar manager cannot have been because of the fibromyalgia.

[18]I was taken to a text message of 25 January 2019 where in the claimant stated that she was not going to do hours in the club under the supervision of someone else as that was insane. I was taken to a text dated 13 February 2019 wherein Ms Lewis pointed out that the decision to dismiss the claimant as redundant was taken before her diagnosis with fibromyalgia.

[19]In addition, I was taken to the grievance report wherein the claimant is concerned that the decision to make her redundant came two days after her diagnosis and is recorded as saying that it could have been a coincidence but that they might have used it. 3 ph judgment + cm Nov 2014 wip version

[20]I express no opinion on the merits of either party’s case. However, it is well known that discriminatory conduct can be hidden by seemingly innocuous management decisions. In the circumstances it is recognised that discrimination claims are particularly fact sensitive and a claimant is entitled to have their case examined and tested by an Employment Judge and non-legal members hearing the evidence.

[21]I consider the factors I need to do in the exercise of my discretion. The nature of the amendment is to include a new party to this claim. I take into account that inevitably that will create hardship for Ms Lewis in having to defend a claim years after the events it deals with.

[22]The timing and manner of the application: I find it is of particular relevance that the claimant named Ms Lewis in both the Acas early conciliation notification form and in the initial claim form. I find that the claimant has always intended to bring an action against Ms Lewis. The application to include Ms Lewis was only really made at the preliminary hearing on 14 May 2020. That is approximately one year after the three-month time limit for bringing her claim would have expired. Nevertheless, given that the claimant always named Ms Lewis as a respondent and it would appear that Milton Keynes Q-Academy Limited was named as her employer and the respondent was on the initiative of the employment tribunal, I consider it to be just and equitable to extend time for the claimant to bring her claim against Ms Lewis out of time.

[23]Against the hardship identified as far as Ms Lewis is concerned, the balancing exercise involves me contemplating a case where the claimant loses her claim against anyone because the employer has now dissolved. If I were to decline to join Ms Lewis the claimant would be potentially left with no remedy.

[24]Consequently, in my judgment the interests of justice require Ms Lewis to be joined to this case and I so order.

[25]The claim against Milton Keynes Q-Academy Limited must be struck out. Date: 24 May 2022

Findings of fact

[26]The claimant described how she would feel very tired, pains and aches in both of her legs and feel like flu-like, tired with aches and pains in both of her legs and feel like the whole time that her body was heavy and stiff. She described not being able to stand for long periods. She tells the tribunal it did impact on work which is why the meeting of 17th January 2019 was called and she was unable to perform to the same level as before and needed help with her workload. I make no findings as to whether this reason is correct, but it is not in dispute that a meeting took place on 17th January 2019.

[27]I do however find that at the relevant time (January 2019) the claimant could not take heavy deliveries such as bottles and crates, etc at work and could not stand for long periods to prepare for large catering events. She was able to work until her dismissal but the claimant's evidence was she had no choice and when there was cover she did not cover the late nights or larger events in the run up to her dismissal.

[28]We explored in evidence whether these matters impacted her home life. Her evidence was at that time she had to have help from her partner or other members of her family with shopping and preparing meals for her family. She became particularly distressed during evidence when describing she could no longer care for her home such as hoovering etc. She couldn't carry a wash basket up and down the stairs. She was unable to even wash her hair and shower without the help and support of her partner and family. She explained that she struggled to get out of bed to do the school run and had to rely on others. Her evidence was medication was taking the edge off the pain, but when I asked what the effect would be if she stopped taking that medication, she confirmed she would not have been unable to get out of bed. I accepted the claimant's evidence.

[29]The claimant explained she still sufferers and despite having had CBT, physio etc, she is still on medication but I must assess what was relevant at the time of the alleged discriminatory act and not today. Conclusions Does the claimant have a physical or mental impairment?

[30]I find that the claimant did have a mental or physical impairment at the relevant time. The question I spent some time considering was whether this was a physical or a mental impairment. It manifests itself physically, but there are some mental aspects such as brain fog. The physical symptoms are pain in the legs, migraines and it is primarily a physical condition with some mental impairments. She has something wrong physically.

[31]I had reference to the guidance on the Equality Act which states that it is not necessary for the cause of the impairment to be established nor does the impairment have to be the result of the illness (A3).

[32]At A5 of the Guidance, it states a disability can arise from a range of impairments which can be impairments with fluctuating or reoccurring effects such as, and it gives a list including fibromyalgia. Of course, the fact that the Guidance mentions this condition does not mean that in this case it is a disability as it is about the impact of such a condition on a case by case basis.

[33]I also considered A6 of the Guidance. It may not always be possible, nor is it necessary to categorise a condition as either a physical or a mental impairment. There may be adverse effects which are both physical and mental in nature. On this occasion, this is where I have had some difficulty, but I find that it is primarily a physical impairment, although it may have some mental impairment and impact. Does that impairment have a substantial and long-term adverse effect on the claimant’s ability to carry out normal day to day activities?

[34]It is for the claimant to establish she is disabled within the meaning of the Equality Act 2010. The focus should be on what the claimant cannot do or can only do with difficulty not what she can do. The effect should be more than minor or trivial.

[35]Here the claimant gave compelling evidence as to the adverse effects on her personal life. Here I earlier referred the parties to the fact that normal day-to-day activities is not defined in the Equality Act, but it should be taken effectively as given an every day meaning. In general day-to-day activities are things people do on a regular daily basis. This includes shopping, reading, writing, having conversations, using the telephone, watching TV, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities as set out in D3 of the Guidance.

[36]Given, the findings of fact, it is clear the impact on the claimant's work was more than trivial or minor. It also impacted her day-to-day activities in her personal life. The examples that were given in evidence including getting washed, preparing food, shopping, household tasks like hoovering and cleaning, lifting, mobility and standing for long periods. The claimant described this as debilitating and she became emotional when describing the life changing effect this condition had had on her.

[37]In addition, contained in the Guidance at D22, it is noted that an impairment may not directly prevent someone from carrying out one or more day-to-day activities, but it still may have a substantial adverse effect on how the person carries out their activities. The Guidance gives a specific example concerning pain and fatigue where an impairment causes pain and fatigue, someone may be restricted in the way they carry out those activities due to pain or indeed an impairment might make the activity more than usually fatiguing. So that person might not be able to repeat the task over a substantial period of time. The claimant's evidence was that this was the case with regard to her work and the shifts, given that she worked a split shift. When on a split shift and when she particularly needed on occasions to work in the evenings, she found this increasingly difficult. The effects the claimant describes and the impact on her day-to-day activities are with the benefit of medication for pain without which the claimant would have been further impacted as she gave in evidence.

[38]She was working but this does not mean she was not disabled. Lots of disabled employees work. The respondent’s implied submission that because she was working she was not disabled is rejected. What is important is what she cannot do rather than what she can do.

The Law

[39]I therefore find that there was an adverse impact on her day-to-day activities. Turning now as to whether this was substantial, this must be more than trivial or minor. Given the claimant was prescribed painkillers which have to be disregarded and based on all the evidence it is clear that the impact was substantial. It was more than trivial or minor. It had deeply impacted the claimant in particular in her home life and her ability to carry out household tasks, motherhood and all that entailed and even self-care.

[40]Turning now to whether the matter is long term, the claimant's condition is long term. There is no cure. It had not lasted 12 months or more by January 2019 as the earliest evidence in the medical documents was that she experienced pain in her legs from July 2018, which would not be 12 months by the time it got to January 2019. Given it is a long-term condition for which there is no cure, it was likely to last 12 months or more at the time of the alleged discriminatory act.

[41]Taking all these conclusions together, I am satisfied that the claimant was disabled at the relevant time. Having heard the evidence from the claimant it is obvious that she was disabled at the relevant time and meets the statutory test in every regard.

[42]It therefore follows that my conclusion is that the claimant is disabled within the meaning of s6 Equality Act 2010. Following this determination the matter proceeded to case management and the parties have been sent separate orders in this regard.

[1]The Claimant was employed by Milton Keynes Q Academy Limited (“the Company”) from 1 April 2017 until 13 February 2019, latterly as Bar Manager. Her employment ended on the stated ground of redundancy. The Claimant had been a Director and Shareholder of the Company during the latter part of her employment.

[2]Following a period of Early Conciliation which began on 1 April 2019, the Claimant was issued with an Early Conciliation Certificate dated 8 May 2019 and presented her claim to the Employment Tribunal on 24 May 2019. The Early Conciliation Certificate named Ms Lewis as the potential Respondent and the Claim Form named Ms Lewis as the Respondent. The complaints were of unfair dismissal and disability discrimination.

[3]At the “vetting” stage of the process, the Tribunal identified the Company as the correct Respondent, bearing in mind that the Company was the employer and the Claimant was seeking to bring a claim for unfair dismissal.

[4]At a Preliminary Hearing on 14 May 2020 when the Respondent did not attend and was not represented, the Claimant confirmed that she also wished to pursue Ms Lewis as a Respondent because the Claimant felt that she was responsible for the Company’s treatment of her. Ms Lewis was given the opportunity to comment on the intention to join her as a Second Respondent and on 5 May 2022, Employment Judge Alliott joined her as Respondent and dismissed the claim against the Company which had been dissolved on 13 October 2020.

[5]Accordingly, the matter proceeded against Ms Lewis only and the claim for unfair dismissal was dismissed as there was no legal entity against which the claim could proceed. The Issues

[6]The issues were identified at the Preliminary Hearing before Employment Judge Tynan on 14 May 2020. The first question at that time was whether the Claimant was a disabled person in accordance with the Equality Act 2010 at the material time, because of the condition of fibromyalgia. That was subsequently determined at a Preliminary Hearing before Employment Judge King on 20 January 2023 and it was found that the Claimant was disabled at the material time due to the condition of fibromyalgia.

[7]Quoting from Judge Tynan’s Case Management Summary, the remaining questions were these, “It is not in dispute that the Respondent dismissed the Claimant for alleged redundancy. The Claimant alleges that she was dismissed the day after she was diagnosed with fibromyalgia. Was that treatment “less favourable” treatment? i.e. did the Respondent treat the Claimant as alleged less favourably than it treated or would have treated others in not materially different circumstances? The Claimant relies on a hypothetical comparator namely a colleague without a disability placed at risk of redundancy. If so, was this because of the Claimant’s disability?”

[8]The Claimant relied only on the condition of fibromyalgia for her claim. The Hearing

[9]This Hearing was due to start on 26 June 2023. A few days before the Hearing the Respondent’s then named Representative asked the Tribunal to convert the Hearing from an “in person” Hearing to either a hybrid or CVP Hearing because he had suffered a back injury. He submitted a document being a General Practitioner’s note of a telephone consultation which confirmed that the Claimant had an injury, but did not wish to be issued with a fit note saying that he was unfit for work. The Representative told the Tribunal that he was unable to travel (he was based on the Wirral) to the Hearing in Cambridge. On that basis the request was granted and the Hearing was converted to one to be conducted by CVP.

[10]However, the Respondent’s Representative who came before us (Mr Monroe) was not the person who had requested conversion to CVP to accommodate their injury and the Tribunal was told that that Representative had passed the file to Mr Monroe on the Thursday before the Hearing (22 June 2023) and that the original Representative was conducting another case. Enquiries are being made as to how this state of affairs has come about, not only because arrangements had to be made at short notice to convert the Hearing to CVP, not only because the original Representative did not tell the Tribunal that he was no longer dealing with the Hearing which could have begun as an in person Hearing as intended, but also because on 26 June 2023 there was considerable difficulty with the video technology. The Claimant could be heard but not seen and from time to time other individuals could not be heard or could not hear.

[11]Accordingly, the matter was adjourned to resume in person on 27 June 2023.

[12]It is of note that the case was only converted to CVP on Friday 23 June 2023, after the original Representative had passed this case to Mr Monroe.

[13]At the Hearing, the Claimant gave evidence and was cross examined. A statement was submitted from Mr O’Sheill but the Claimant was not clear as to whether she should call him to give evidence. Mr Monroe helpfully indicated that he had no questions for that witness so that his statement was taken as red. On behalf of the Respondent Ms Lewis gave evidence, as did Emma Cunningham. Both Ms Lewis and Ms Cunningham were Directors of the Company at the relevant time. Reference was made to a substantial Bundle of documents. The Facts

[14]Based on the evidence we have heard, we have made the following findings of fact.

[15]The Claimant began work for the Company in April 2017 and was promoted to Bar Manager in October of that year. In May 2018, one of the then Directors of the Company decided he wished to exit the Company and sold his shares to the Claimant who was then appointed also as Director. The Claimant held 40% of the equity in the Company, Ms Lewis held 30%, Ms Cunningham 20% and Mr Douglas 10%.

[16]The corporate arrangements of the Company was somewhat loose and much of the communication between Directors was on a group WhatsApp chat. There was no indication of any Directors meetings.

[17]The Claimant has a long term condition of endometriosis. She had surgery for this in July of 2017.

[18]During the period when the Claimant was working, the business of the Company was not immediately profitable, so that each of the Directors carried out some unpaid work and the Claimant also carried out paid work in her role as Bar Manager. Staff turnover was also a problem and in October 2018, according to the unchallenged evidence of Ms Lewis, advertisements were placed for staff. As well as the work the Claimant was doing, the other Directors would help out with additional (unpaid) hours when they had time to do so as they all had other full time work.

[19]In a message of 29 October 2018, the Claimant stated her hours to be Monday to Friday 10am to 2.30pm (22.5 hours in total although she maintained she was working 30 hours per week). The Claimant said this time included the hours she spent on banking, ordering stock and preparing wages. But the other Directors believed the 30 hours should be spent on sight working as Bar Manager with that other work being unpaid input as a Director. There was clearly frustration among the Board of Directors and in the view of the other three Directors, the Claimant was failing to differentiate between her position as an employee of the Company and her position as a Director.

[20]There had been an issue over a cancelled Insurance Policy in October 2018 and it appeared that some banking was not being done on time, payslips were not always issued and daily accounts were not being fully maintained.

[21]Accordingly a Board Meeting was held on 17 January 2019. The Board Minutes have been produced as part of the Bundle in this case. The Claimant has said in cross examination that she does not agree with the contents of the Board Minutes but she has not set this out in her statement, nor have we seen any evidence that she raised this issue previously. We are therefore bound to accept them as being reasonably accurate, particularly as the Claimant has not indicate where and how the Minutes are not a true reflection of the meeting.

[22]Ms Lewis was elected by the other Board Members as Chair of the meeting and took the Directors through an analysis of their duties as Directors of a limited company. Ms Lewis suggested that responsibilities / tasks should be assigned to individual Directors in order to have working processes in place and that all such work would be unpaid as there was no money in the business of the Company to allow them to take remuneration at that stage.

[23]Discussion then followed regarding having a Supervisor rather than a Manager to oversee the Bar / Club on a day to day basis and that this should be someone other than a Director. There was comment that too much of the workload was currently being placed on the Claimant.

[24]The Board considered three proposals. The first, that the Claimant should work as the Club paid Supervisor; secondly, that she should work as a paid member of staff with separate Director’s duties with a Supervisor appointed; and thirdly, that she did not paid work within the Club but continued as a Director.

[25]The Claimant did not vote on these proposals and nor did Ms Lewis as Chairman. But the other two Directors voted for the second option, so that a Bar Supervisor should be employed, that the Claimant would continue to carry out hourly paid bar work, but she would not have managerial responsibility for the Bar. At the same time she would remain a Director and Shareholder.

[26]The first option was rejected as it would simply maintain the status quo with a change of title and the third was rejected as the Claimant at that stage said she wished to continue to carry out work at the Company.

[27]Following the meeting, Ms Lewis, who had been nominated to undertake the roles relating to Human Resources and as Treasurer, asked the Claimant for the wages software. The Claimant complained on 25 January 2019 that she believed that they were her responsibility as Manager. When in reply another Director commented that things had to change and that was what the earlier meeting had been about. The Claimant accepted that she had not disagreed with the proposal at the meeting because she would be staying as a paid member of staff, but after thinking about it she considered it unfair and suggested selling her shares.

[28]On 25 January 2019, the Claimant said in the WhatsApp group, as regards working under a Supervisor, “I am not going to do hours in the Club under supervision of someone else. That’s insane.”

[29]The unchallenged evidence of Ms Lewis was that she and the other two Directors took this as the Claimant’s position regarding hours to be worked as a paid employee following the appointment of a Supervisor which the Board had asked her to consider at the 17 January 2019 meeting. They concluded that the Claimant would not work under a Supervisor as that was she was very clearly saying.

[30]In those circumstances, Ms Lewis contacted Human Resources advisors and, according to her still unchallenged evidence, with he agreement of the other two Directors, prepared a letter to the Claimant regarding the Manager’s position becoming redundant and setting out the Claimant’s financial entitlements including notice pay and holiday pay.

[31]That letter confirmed that the business was being restructured so that a number of the roles and responsibilities currently carried out by the Bar Manager would be undertaken, unpaid, by the Directors and there was no longer a requirement for the position of Bar Manager. There was a requirement for day to day supervision of the Bar and staff and it was the intention of the Company to employ a Supervisor so that the Claimant’s position as Manager was redundant.

[32]When the Claimant put it to Ms Lewis that the letter made no mention of any future work, she confirmed that that was the case because the Claimant had made a number of comments about not working under a Supervisor, including the comment noted above on 25 January 2019.

[33]A further Board Meeting was to be held on 13 February 2019. Ms Lewis’ intention was to hand the letter to the Claimant that day at the Meeting. But on 12 February 2019, the Claimant said she would not be attending the Meeting and would put her points across in writing, although we have not seen any such comments.

[34]On the same day, 12 February 2019, the Claimant had attended a Clinic at Milton Keynes’ University Hospital where Dr Banerjee advised the Claimant that she had fibromyalgia. The Doctor gave the Claimant written information on the condition and made suggestions regarding medication and possible therapy.

[35]The Claimant says that she told Ms Kelly about the diagnosis on the same day, 12 February 2019. She said that she had spoken to her father and that they had decided to take a holiday so she rang Ms Kelly to tell her that and she also told her, she said, of her diagnosis during that telephone call. Ms Kelly denied that any such telephone call had taken place, but we accept the Claimant’s evidence in this area which we have found to be clear and credible.

[36]The Claimant said in cross examination that when she made the telephone call, Ms Kelly had already posted the letter to her and did not mention it, but that was not the case. The letter had been prepared but was not posted until the following day once the Claimant had confirmed that she would not be attending the Meeting. The letter was posted during working hours because it was posted with tracking and to be signed for.

[37]The Claimant says that she did not open the letter until 16 February 2019. If it was relevant that would then become the effective date of termination, if the Claimant’s evidence on this point was accepted.

[38]The Claimant appealed against the dismissal but the appeal was rejected. It is against that factual background that the Claimant brings the complaint. The Law

[39]Under s.13 of the Equality Act 2010, a person discriminates against another if they treat that person less favourably than they treat or would treat others because of a protected characteristic. In the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UK HL 11, the House of Lords set out that the role of the Tribunal in considering a claim of direct discrimination is first to identify any treatment which was less favourable treatment than would have been afforded to others and then to ask whether that conduct was because of a protected characteristic. In this case the Claimant relies on her condition of fibromyalgia and complains only of the act of dismissal. She relies on a hypothetical comparator, i.e. someone in circumstances which are not materially different but who is not disabled.

Conclusions

[40]Applying the facts found to the relevant Law, we have reached the following conclusions.

[41]At the time of the Board Meeting on 17 January 2019 the Directors of the Company came to the conclusion, as they were entitled to as the owners of the business, that there was insufficient separation of duties between the Claimant as a paid employee and the Claimant as Director and that there were tasks which should be shared by the Directors for which they would not be paid.

[42]This we unanimously find was a reasonable decision for a business to take in circumstances where profits were not materialising. As part of that decision the Respondent considered a number of options including the Claimant adopting the role of Bar Supervisor, which was rejected by the Board because it would simply maintain the status quo which was not working effectively. The decision was taken to remove the position of Bar Manager, employ a Supervisor and – provided she wished to do so – allow the Claimant to carry on working on an hourly paid basis.

[43]The Claimant was given time to consider this and subsequently confirmed that she would not work under a Supervisor. In particular on 25 January 2019, she wrote in a WhatsApp group to the other Directors, “I am not going to do hours in the Club under supervision of someone else. That’s insane.”

[44]On that basis the Claimant’s role as Manager was redundant and she had rejected the option of working under a Supervisor by her clear words. The Company and in particular the Respondent Ms Lewis, reasonably took that to be a rejection of the proposal of her carrying out hourly paid work.

[45]In those circumstances advice was taken and a letter drafted ready to be given to the Claimant at the next Board Meeting on 13 February 2019 which confirmed that her position as Manager was redundant. Her position as Director or Shareholder was, of course, not affected.

[46]That letter was in place prior to the Claimant advising Ms Lewis that she would not be attending the Meeting on 13 February 2019 which she did the day before. On advice, Ms Lewis posted the letter to the Claimant, tracked and to be signed for, the following morning 13 February 2019.

[47]Whilst the Claimant had advised Ms Lewis on 12 February 2019 of her diagnosis of fibromyalgia, the decision to dismiss the Claimant as redundant had already been taken and was the inevitable consequence of her position as Bar Manager being removed to be replaced by a Supervisor under whom she refused to work. The decision was not motivated by the Claimant’s condition of fibromyalgia because at the time the decision was taken, about 7 February 2019 when Ms Lewis was drafting a letter with the assistance of external advisors and with the knowledge of the other Directors, the condition was unknown to Ms Lewis and indeed undiagnosed as far as the Claimant was concerned.

[48]Although much criticism could be placed at the door of the Company as to how they have conducted this matter, no purpose would be served in doing so, nor in analysing the fairness or unfairness of the way they dealt with the Claimant’s employment. The Claimant does not have sufficient qualifying service to bring a claim of unfair dismissal and she only brings a complaint of direct disability discrimination.

[49]We are satisfied that a non-disabled Manager who was also a Director and in the same circumstances as the Claimant, would not have been treated differently to the way the Claimant was. Had such a non-disabled Manager refused to work under a Supervisor once the Company had determined to make the role of Manager redundant, then they too would have been dismissed.

[50]Accordingly, there is in this case no less favourable treatment.

[51]Further, the treatment that the Claimant did receive was not on the grounds of disability. The Company was restructuring and at the time the decision was taken to dismiss the Claimant as redundant, the Company and Ms Lewis were not only unaware that the Claimant suffered from fibromyalgia (as indeed was the Claimant) but the reason why the decision was taken related solely to the decision to separate the roles of Director and employee, to employ a Bar Supervisor instead of a Bar Manager thus making the Manager’s role redundant and the Claimant’s decision not to work under a Supervisor. Her decision was not taken because of any physical or mental impairment from which the Claimant suffered, but rather because of the need to separate the roles of Director from the roles of employee, reorganise the distribution of tasks between the various Directors and the Claimant’s refusal to work under a Supervisor.

[52]The claim proceeds against Ms Lewis and Ms Lewis alone. The Claimant confirmed that this is because Ms Lewis had written the letter of dismissal and was in her view the controlling person in the Company.

[53]We are satisfied, however, that the decision to employ a Bar Supervisor and remove the role of Bar Manager was a corporate decision made by the Board of Directors and not Ms Lewis alone. When the Claimant refused to work under a Supervisor, her position disappeared and therefore redundancy was the inevitable outcome.

[54]We accept that one Director was apparently unaware that the Claimant was no longer working at all for the Company, but the reason why she was not carrying out paid work was because she had refused to work under a Supervisor. That decision was hers and not one made by Ms Lewis.

[55]Accordingly, the Claimant’s complaint that she was the victim of unlawful discrimination does not succeed. There was no less favourable treatment compared to the hypothetical comparator, the treatment the Claimant did receive was not because of disability and the named Respondent Ms Lewis, was simply putting into effect a corporate decision made by the Board of Directors of the Company.

[56]For those reasons the Claimant’s complaint is dismissed. 22 August 2023