Mr Tekena Nemi v Asda Stores Ltd: 3334811/2018
JUDGMENT
[1]The claimant’s claim for disability discrimination has no reasonable prospect of success and it is struck out.REASONS
[1]In a notice dated 17 February 2019, Employment Judge Heal directed that the closed preliminary hearing listed in this case on 8 July 2019 be converted to an open preliminary hearing to discuss the following issue: “to consider the respondent’s application for a strike out order and/or a deposit order”[2]The claimant was employed by the respondent in December 2011. His employment ceased on 1 October 2018 when he resigned. The claimant presented his claim form on 14 November 2018. The only box ticked in his claim form relates to unfair dismissal. However, the background and details of his claim refer to a repudiatory breach of contract and also a failure to make reasonable adjustments.[3]On the basis of his claim form, this case has been coded “unfair dismissal, disability discrimination and breach of contract”. 1 of 4[4]Notwithstanding the coding, it is noticeable that the respondent in its response form has dealt with the constructive unfair dismissal claim but has not dealt in any specific way with an allegation of disability discrimination.[5]On 13 February 2019, Employment Judge Heal directed that the claimant be asked the following question: “Is the claimant making complaints of sex and/or disability discrimination?”[6]The reference to sex discrimination presumably arises out of an allegation in the claimant’s claim form that women in his team were allowed to work on the tills when he was not. The claimant responded to that direction as follows: “as much as there is an element of discrimination in this matter which I would love to give factual evidence when required My case is centred on breach of Health & Safety Act 1974 which led to my resignation”.The Law
[7]In assessing the prospects of success in a discrimination claim, I have taken into account that the Employment Appeal Tribunal has repeatedly stressed it is only in the clearest cases that a claim can be struck out at a preliminary hearing. I have taken into account that discrimination cases are fact specific and public policy generally requires an examination by a full members tribunal to assess the merits or otherwise of such a claim.The Facts
[8]The claimant told me that as regards an adjustment to his hours, the respondent resisted his request for reduced hours at first. I have been informed that on 7 February 2018 he requested reduced hours. I am told that his hours were reduced immediately and he had a meeting where his hours were formally reduced on 21 February 2018. Occupational Health had a meeting on 7 March 2018 and there was a formal change to his hours on 13 March 2018. This appeared to be accepted by the claimant. As such, reference in the claim form to the respondent resisting reducing his hours must refer to the period prior to February 2018. As such, it is well out of time and although no formal application was made to extend time, I find that it would not be just and equitable to do so.[9]The part of the claim form that relates to reasonable adjustments reads as follows: “Theres has none been any reasonable adjustments made by the respondent to my work as I have had to deal with manning the fast checkout by myself most nights with little or no assistance”[10]The disability alleged by the claimant relates to anxiety and stress. Taking the claimant’s potential case at its highest, he would have to establish that there was a PCP requiring him to work on the checkout area rather than on the tills and that that requirement put him at a substantial disadvantage as opposed to 2 of 4 non-disabled individuals. Alternatively, he would have to establish that that was unfavourable treatment. In my judgment it is highly probable that there is little or no differentiation between working on the tills and working in the checkout area insofar as dealing with the public and any potential increase in anxiety and stress as a result. Issues relating providing change etc, would arise in both positions, probably more so on the tills rather than at the checkout area.[11]Consequently, in my judgment, the claim relating to disability discrimination stands no reasonable prospect of success and accordingly I strike it out.[12]As regards the constructive unfair dismissal claim, I have been shown the resignation letter. On 24 September 2018, the respondent held an internal mediation meeting with the claimant.[13]That mediation appears to have come about as follows:13.1 The claimant had a prior claim at the Employment Tribunal, claim number 3306686/2018. In that claim the claimant presented a claim of disability discrimination. There was a preliminary hearing heard on 12 September 2018 before Employment Judge Tuck. It appears that she raised the prospect of mediation and this was acted upon by the respondent. At that same hearing Employment Judge Tuck made an Unless Order that the claimant set out the basis and facts of any complaint of disability discrimination he was making.13.2 Following that hearing on 12 September 2018, the claimant was invited to an internal mediation meeting on 18 September 2018 and this was held on 24 September 2018. That meeting had to be adjourned as the claimant had childcare issues. It was scheduled to be reheard in October 2018 but on 28 September 2018, the claimant sent an e-mail and letter resigning.13.3 The resignation letter and e-mail clearly arise out of the mediation and how the claimant felt it had gone.13.4 In his claim form in this claim, the claimant refers to how he was being treated by management and fellow employees at various points in February and June 2018. On 6 June 2018, the claimant was sent home and thereafter was on sick leave.13.5 Miss Badham, on behalf of the respondent, has submitted that date, 6 June 2018, represents the last act relied upon and that accepting sick pay thereafter was an act of affirmation on the claimant’s part. Therefore, his contention that he was constructively dismissed is doomed to failure on the grounds that he has affirmed the contract of employment. Alternatively, she has submitted to me that affirmation took place between the mediation agreement on 24 September and his resignation on 28 September. In my judgment, some of the matters raised in the claim form are continuing acts. For example, the assertion that he should move to a different department. In addition, there is a reference, as I understand it, to the mediation wherein the manager is 3 of 4 said to have referred to him in a condescending tone, asking if writing letters helped him deal with his anxiety and depression.[14]As I understand it, the claimant’s claim for constructive dismissal is based on a breach of the implied term of mutual trust and confidence in the way that the claimant was treated up to and including in the mediation meeting held on 24 September 2018. As such, in my judgment, it is capable of being presented as a last straw in support of his constructive unfair dismissal claim. The four days between the mediation and the resignation can be argued to be too short to constitute an affirmation. Accordingly, in my judgment I cannot find that there was little reasonable prospect of success and that head of claim will proceed.[15]The breach of contract claim, I assume to be a claim for wrongful dismissal and notice pay if appropriate.