Miss C Crabb v Dr Ebenezer Timeyin T/a Thanet Road Surgery: 2300616/2018
| Judgment Date | 03 October 2019 |
| Citation | 2300616/2018 |
| Published date | 23 October 2019 |
| Court | Employment Tribunal |
| Subject Matter | Age Discrimination |
Case No: 2300616/2018
10.2 Judgment - rule 61 March
2017
EMPLOYMENT TRIBUNALS
Claimants: Miss C Crabb
Respondent: Dr Ebenezer Timeyin t/a Thanet Road Surgery
Heard at: London South (Ashford) On: 1 & 2 July 2019
Before: Employment Judge John Crosfill
Mr Adkins
Mr Anderson
Representation
Claimant: In person.
Respondent: Initially Mr N Onyekwelu, latterly in person.
JUDGMENT
1. The Claimant’s claim for unfair dismissal is well founded.
2. The Claimant’s basic award and compensatory awards will be reduced by
50% to reflect her conduct that contributed to the dismissal.
3. The Claimant’s compensatory award will be reduced by 75% and calculated
only to a date 6 months after the actual dismissal to reflect the possibility
that she could have been fairly dismissed or that the employment would
have terminated fairly.
4. The Claimant’s claim for wrongful dismissal brought under the Employment
Tribunals (Constitution and Rules of Procedure) Regulations 2013
succeeds. The Claimant is entitled to damages to be assessed.
5. The Claimant’s claims of direct age discrimination brought under the
Equality Act 2010 are dismissed.
Case No: 2300616/2018
10.2 Judgment - rule 61 March
2017
REASONS
1. The Respondent is a General Practitioner and at all material times worked from the
Thanet Road Surgery in Plumstead. The Claimant worked for the Respondent as a
Receptionist/Secretary on a part time basis from January 2015 until her summary
dismissal on 17 November 2011. She has brought claims for unfair dismissal and
direct discrimination because of age.
The hearing
2. At the outset of the hearing the parties agreed that the draft list of issues produced
by the tribunal at the case management hearing that took place on 17 May 2017
properly encapsulated the issues that the Tribunal needed to decide. The agreed
issues were:
Unfair Dismissal
1. The Respondent admits that the Claimant has sufficient continuity of service to
present a claim of unfair dismissal.
2. The Respondent accepts that he dismissed the Claimant.
3. The Tribunal will have to decide whether the Respondent has established that
he dismissed the Claimant for a potentially fair reason falling within Sub-section
98(2) of the Employment Rights Act 1996 or some other substantial reason.
The Respondent relies upon “conduct” as a potentially fair reason.
4. If the Respondent dismissed the Claimant for a potentially fair reason the
tribunal must determine whether the dismissal was fair or unfair applying the
test set out in Sub-section 98(4) of the Employment Rights Act 1996. In
particular having regard to:
4.1. Whether the Respondent has carried out a reasonable investigation into
the alleged misconduct and
4.2. that any belief that the Claimant was guilty of misconduct was formed upon
reasonable grounds and
4.3. that the decision to dismiss the Claimant was one which was open to a
reasonable employer.
5. If the dismissal was unfair then the Tribunal will need to consider, when
assessing whether to make any award of compensation:
5.1. Whether any basic award or compensatory award should be reduced under
sections 122(2) and/or 123(6) of the Employment Rights Act 1996 on the
grounds that the Claimant caused or contributed to her dismissal; and
Case No: 2300616/2018
10.2 Judgment - rule 61 March
2017
5.2. Whether the Claimant might have been or would have been fairly dismissed
by the Respondent in any event and if so whether it is just and equitable to
reduce any compensatory award to reflect that.
6. Should any compensation be adjusted to reflect any failure, by either party, to
comply with a relevant code of practice (here the ACAS Code of Practice on
Discipline and Grievances at Work)? If so by how much?
Wrongful dismissal
7. The Respondent accepts that the Claimant was dismissed without notice.
8. The Tribunal will need to determine what notice period the Claimant was
entitled to under her contract of employment (subject to the statutory minimum
that the Respondent was required to give).
9. Can the Respondent establish as a matter of fact that the Claimant’s conduct
amounted to a serious breach of contract that entitled him to dismiss the
Claimant without notice?
10. If the Claimant was wrongfully dismissed what loss has the Claimant suffered
as a consequence?
Direct discrimination because of age.
11. The Claimant defines herself as falling into a younger age group than all other
employees of the Respondent.
12. The Claimant’s complaints are of direct discrimination because of age contrary
to sections 13 and 39 of the Equality Act 2010.
13. The Claimant complains of the following as amounting to less favourable
treatment:
13.1. the issue of the Claimant taking time off work to collect her child from
school was raised as a disciplinary matter; and
13.2. raising and subsequently relying upon the Claimant signing an insurance
form as a reason for dismissing her (essentially she complains of her
dismissal); and
13.3. offering the Claimant a series of fixed term contracts rather than
permanent employment.
14. The Claimant relies upon the other members of staff as real comparators in
respect of the third allegation of less favourable treatment but in respect of the
other allegations relies upon hypothetical comparators in the same
circumstances but of an older age group.
15. If the Claimant is able to establish any less favourable treatment, applying the
burden of proof sat out at section 136 of the Equality Act 2010, was that
treatment because of the Claimant’s age?
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