Ms V Grigorescu and Ms A-M Grigorescu v 1Servco Ltd: 6000598/2024 and 6000105/2024
[1]The claims were re-listed for a further day to complete the determination of the preliminary issues for one day, before Employment Judge Cadney sitting alone by way of video conference (the joining details for which will be sent to the parties the day before the hearing) at 10.00 a.m. on 9th July 2025.[2]It was agreed that the hearing will be conducted by the parties attending by video conference (CVP) as a reasonable adjustment for the second claimant. Directions First Claimant I) The first claimant is directed to notify the respondent and tribunal no later than 6th June 2025 whether the EJ’s summary of the claimant’s claims as discussed during this hearing and summarised below is accurate and if not accurate to supply any amendments / corrections. II) In the event that she does so they will be discussed at the part-heard hearing. BY CONSENT the following directions are given: Unless the claimant complies with the case management orders below within 14 days of the date on which this CMO is sent to the parties her claims will be struck out without further order for the failure to comply with the case management orders and/or the failure actively to pursue her claim (ET Rules 2024 rules 38(1) (c) and /or (d) / and rule 39(1)): i) The claimant shall within 14 days of the date on which this CMO is sent to the parties supply medical evidence in support of the contention that she was medically unfit to participate in the preliminary hearing on 28th /29th April 2025; ii) The claimant is to confirm personally within 14 days of the date on which this CMO is sent to the parties that a) She is actively pursuing her claims and wishes to continue in the circumstances set out below: b) She understands that it will be necessary for her to participate and give evidence at the re-listed hearing in particular so as to allow her to be cross-examined as to the issue of disability; and subject to the outcome of that issue to participate and be present to give instructions to her representative in relation to the further issues to be determined at the hearing as set out above. Case No: 6000598/2024 6000105/2024 - --4--- REASONS .[1]Part Heard Hearing – As is set out below the hearing was listed for wo days In person to determine the preliminary issues. The second claimant did not attend on the first day but the tribunal was informed that if the second day could be converted to CVP video hearing then she would be able to attend. However on the morning of the second day she did not join the video hearing and the tribunal was informed that she had suffered a further panic attack and was not able to participate.[2]The respondent did not object to the application to adjourn part-heard to allow for her attendance given that the explanation was medical unfitness; but noted that the explanation was that she had not understood that she would need to attend and give evidence and that she needed sufficient notice to prepare herself to do so; but that the hearing had been listed at the CMPH on 24th October 2024, and that at least the claimants’ representatives had known for many months that she would be required to attend and give evidence given that the issue of disability was in dispute, and especially given that in the absence of any significant supporting medical evidence the issue may turn very significantly on her oral evidence. In the circumstances whilst it did not object to the adjournment it sought the directions set out above to which the claimant’s representatives did not object. Hearing[3]On 24th October 2024 I held a case management preliminary hearing and directed that the case be set down for a further preliminary hearing to determine the following issues: i) Both claimants’ applications to add Mr Jeremy Sheehan and Ms Nicky Sheehan as respondents to both claims; ii) C1’s application to amend; iii) C2’s application to amend; iv) Whether C2 was a disabled person within the meaning of s6 Equality Act 2010 at the material times; v) The respondent’s strike out / deposit applications; vi) Finalising the List of Issues; vii) Further Case Management Orders (including in particular whether both claims should remain linked and heard together or whether they should be heard separately) Case No: 6000598/2024 6000105/2024 - --5--- (The order in which those issues are determined will be decided by the EJ who conducts the hearing and will not necessarily be in the order set out above)[4]First Claimant – The first claimants claims are(a) Direct Pregnancy / Sex discrimination by association with HJ (this has now been withdrawn as a claim of pregnancy discrimination by association but is still pursued as a claim of direct sex discrimination);(b) Direct Sex Discrimination;(c) Direct Disability discrimination by association;(d) Direct Race Discrimination;(e) Victimisation(f) Automatic Unfair dismissal (public interest disclosure – s103A ERA 1996)(g) Unlawful deductions from wages;(h) Accrued but unpaid holiday pay.[5]Her applications are:- Amendment 1 - Both claimants originally brought claims against . the current respondent and two individual respondents Mr Jeremy and Ms Nicky Sheehan. Those were rejected in both claims as there were no ACAS EC certificates in respect of them. Both claimants have applied for them to be joined by way of amendment. Amendment 2 - The claimant has sought to amend to : i) Add a claim of automatic unfair dismissal pursuant to s100 ERA 1996 ( Health and Safety dismissals); ii) Add a claim of PID/ victmisation detriment in relation to the factual allegations in the claim of direct sex discrimination (the claim of direct pregnancy discrimination by association having been withdrawn); iii) To add claims of harassment as alternatives to the claims of victimisation detriment prior to the protected act of 11th October 2023.[6]In the absence of the second claimant the tribunal was able to determine the following issues. Case No: 6000598/2024 6000105/2024 - --6--- First Claimant[7]First Claimant – Withdrawn Claims – The claimant confirmed that she is no longer pursuing the claims identified at paragraphs C9-16 in her ET1/Claim form and they are dismissed on withdrawal.[8]Amendment Application 1 / C1 and C2 – In both ET1/claim forms the claimants brought claims against the current respondent and Mr Jeremy and Ms Nicky Sheehan. Both claims were rejected as there was no ACAS EC certificate in respect of either and the claimants now seek re-consideration of that decision and/or to join them by way of amendment.[9]It was accepted that this issue could be determined in the second claimants absence as would turn on the parties submissions and evidence was not necessary.[10]As individual respondents neither could be legally liable for the claims of either claimant relating to dismissal. They could be potentially liable for any discrimination claims and/or whistleblowing detriment claims. However the current respondent has not sought to rely on the statutory defence and in the event that the claimants allegations against either of the individual proposed respondents succeeds the current corporate respondent would be liable. The absence of the two individual respondents to the claim does not therefore prejudice the claimants in their ability to pursue any of the claims.[11]For the reasons given orally, whilst I accept the claimants contentions that the claims were rejected on the technicality of there being no separate EC certificates in respect of the individual proposed respondents; the claims were correctly rejected and there was no basis for restoring them on reconsideration; and the applications were dismissed. First Claimants Amendment Applications-[13]Harassment – The claimant applied to re-label her claims currently identified a claims of direct discrimination/victimisation as claims of harassment. The respondent did not object to this application which was granted.[14]Health and Safety Automatic Unfair Dismissal s100(1) ( c ) – ERA !996- During the course of the hearing the claimant identified the protected acts / protected disclosures and detriments for the victimisation/ whistleblowing detriment dismissal claims. In each instance they are the same. This application is based on the proposition that two of the disclosures/protected acts are also disclosures falling within s100(1)(c) of the ERA 1996 and that if the principal reason for the claimant’s dismissal was bringing to the respondent attention the health and safety concerns then her dismissal also automatically unfair by reference to s100(1)(c) as well as s103A. Case No: 6000598/2024 6000105/2024 - --7---[15]On the basis that all of the protected acts/disclosures will evidentially be before the tribunal in any event, as will the reason for dismissal in respect of the s103A claim, there is very little prejudice, evidential or otherwise to the respondent in permitting this application. However, I confirmed that permitting the amendment is without prejudice to respondents right to rely on the assertion that his claim was submitted out of time. If necessary this issue will be determined at the final hearing. First Claimant’s Claims[16]Withdrawn Claims – In the Particulars attached to her claim form the claimant has identified at C9 – C16 allegations of breach of contract. During the hearing these were withdrawn and the claimant has indicated that she is content that they are dismissed on withdrawal. Remaining Claims[18]The claims which ae being pursued are dealt with in the order in which they appear in the Respondent’s Draft List of Issues.[19]Direct Sex Discrimination by Association – (s13 Equality Act 2010) (LoI para 2) – This claim was also previously pursued as a claim of associative pregnancy discrimination (s18 Equality Act 2010) but that claim has been withdrawn.[20]The basis of the claim is that on 9th August 2023 she lodged a grievance/complaint about Holly Jones. She alleges that she was informed on 4th September 2023 that the grievance would not be investigated because Holly Jones was pregnant. This is disputed factually by the respondent. The claimant asserts that as only women can become pregnant that this is sex discrimination which favoured Holly Jones because she was pregnant (and was therefore based on her sex) and resulted in less favourable treatment of the claimant.[21]Direct Sex Discrimination (s13 Equality Act 2010 ) (LoI para 3) - The claimant contends firstly that she was informed orally that she would be promoted, but that the respondent never acted on this agreement, whilst it promoted two male colleagues. She contends she was informed that because of Holly Jones pregnancy that a decision had been taken that the respondent would not promote women in the future and that in consequence of this policy she was not promoted.[22]Secondly she contends that she was directed not to send emails after 9.00 pm. She contends that this limited her capacity to work hard and impress the respondent and that a male colleague Lewis Horan was permitted to carryon doing so thereby treating her less favourably.[23]Direct Disability Discrimination by Association with C2 ( s13 Equality Act 2010) (LoI para 4) – The issue of whether C2 was a disabled person at the material time is to Case No: 6000598/2024 6000105/2024 - --8--- be resol ved at the part-heard hearing. If it is resolved her favour the claimant contends that she suffered direct discrimination by association in that: i) She was held accountable for C2’s actions ii) That it was suggested that she prevent C2 from lodging a grievance; iii) By JS ignoring numerous opportunities to de-escalate the situation.[24]Direct Race Discrimination (s13 Equality Act 2010) (LoI para 5) – The claimant alleges that one of the reasons given for her suspension/disciplinary process and dismissal, was that she had allegedly breached a policy of only speaking English by speaking Romanian to some Romanian co-workers. The claimant does not know whether such a policy existed (she asserts that if it did she was never informed about it) but that this was an act of direct race discrimination in that her nationality was used as a method of treating her less favourably. Victimsation / Public Interest Disclosures[25]It is convenient to deal with these allegations together as the same factual allegations underpin both.[26]The claimant alleges that the protected acts / public interest protected disclosures are: i) C2’s letter to the respondent dated 9th September 2023 in which she alleges bullying by JS (PoC para 18); ii) The claimant’s email of Monday 11th September (PoC para 21); iii) The claimant’s email of 9th October 2023 in which she made public interest disclosures in respect of the English speaking only policy (PoC para 28); iv) The claimant’s grievance of 11th October 2023 (PoC para 29);[27]Detriments – As with the disclosures the claimant relies on the same detriments for both the victimisation and public interest disclosure detriment claim: . i) She was suspended; ii) She was subjected to an unfair disciplinary process including: a) That she was not permitted to contact other members of staff in order for them to potentially speak for or give evidence on her behalf during the disciplinary meeting and/or that she was not permitted to call witnesses; b) The hearing was re-arranged for a time at which her trade union representative was not available; c) The disciplinary process was not paused to allow the grievance to be completed; Case No: 6000598/2024 6000105/2024 - --9--- iii) She was dismissed (this cannot be pursued as whistleblowing detriment but can be as a claim of automatic unfair dismissal -see below); iv) The grievance process was unfair in that; a) The claimant was interviewed last and/or the grievance investigator did not properly or fully understand the grievance; b) The grievance outcome did not address all of the issues c) The grievance investigator limited the grievance to the issues raised in the original grievance and dd not permit her to raise other matters (including her dismissal) which had arisen after the grievance was lodged d) She was not permitted an appeal.[28]Harassment (s26 Equality Act 2010) – As set out above the claimant applied to amend to add an alternative claim of harassment in respect of all of the factual allegations set out above. The respondent did not object and the application was granted.[29]Automatic Unfair Dismissal (s103A 1996) - The disclosures relied on are as set out above. The claimant contends that the reason or principal reason for her dismissal was making one or more of the protected disclosures set out above.[30]Automatic Unfair Dismissal (s100(1)(c) ERA 1996 – As set out above the claimant applied to amend to add this claim, which was granted for the reasons set out above. She relies on the communications of 9th October and 11th October (see above) as disclosing health and safety concerns within the meaning of s100(1) ( c ) and pursues this an alternative automatic unfair dismissal claim.[31]Second Claimant – In the second claimants absence it was not possible to resolve the issue of disability ; and/or clarify her claims. At the part -heard hearing the first issue to be dealt with will be disability, and the rest of the claims considered following the decision in respect of that issue.[32]Her amendment applications have been dealt with. _______________________ EMPLOYMENT JUDGE CADNEY Dated: 1st May 2025 Judgment sent to parties on 02 June 2025 By Mr J McCormick for Secretary of the Tribunals