Miss A Donaghey v Done Bros Cash Betting Ltd T/a Betfred: 2405590/2020
| Judgment Date | 28 April 2022 |
| Date | 28 April 2022 |
| Citation | 2405590/2020 |
| Published date | 09 May 2022 |
| Court | Employment Tribunal |
| Subject Matter | Sex Discrimination |
JUDGMENT AND REASONS
Case No. 2405590/2020
1
EMPLOYMENT TRIBUNALS
Claimant:
Miss A Donaghey
Respondent:
Done Bros Cash Betting Ltd t/a Betfred
Heard at:
Manchester
On: 28 March to 1 April 2022
Before:
Employment Judge Phil Allen
Ms V Worthington
Mr AG Barker
REPRESENTATION:
Claimant: In person
Respondent: Mr J Gilbert, consultant
JUDGMENT
The unanimous judgment of the Tribunal is that:
1. The claimant’s iron deficiency anaemia was a disability at the relevant time
within the meaning given by section 6 of the Equality Act 2010;
2. The claimant did not prove that her depression amounted to a disability at the
relevant time within the meaning given by section 6 of the Equality Act 2010;
3. The Employment Tribunal did not have jurisdiction to determine the claim of
harassment related to disability at the meeting(s) on 30 April 2019 as it was not
brought within the time required by section 123 of the Equality Act 2010;
4. The claimant’s other claims for harassment related to disability did not
succeed and are dismissed;
5. The claimant’s claims for direct discrimination because of disability did not
succeed and are dismissed;
6. The claimant’s claims for harassment related to sex did not succeed and are
dismissed;
7. The claimant’s claims for direct discrimination because of sex did not succeed
and are dismissed; and
JUDGMENT AND REASONS
Case No. 2405590/2020
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8. The claimant was not dismissed by the respondent as she did not terminate
her contract in circumstances in which she was entitled to terminate it by reason of
the respondent’s conduct, as provided for by section 95(1)(c) of the Employment
Rights Act 1996. She did not resign in response to a fundamental breach of contract
by the respondent and/or she waived the fundamental breach by delaying too long
before resigning. The claim for unfair (constructive) dismissal did not succeed and is
dismissed.
REASONS
Introduction
1. The claimant was employed by the respondent from 10 May 2001 until 20
December 2019. From 2012 she was an Area Manager. The claimant resigned on
22 November 2019. The claimant alleged that she was unlawfully discriminated
against because of her disabilities and/or sex, harassed on grounds of sex and/or
disability, and/or constructively dismissed. The respondent denied discrimination,
harassment, or that the claimant was constructively dismissed.
Claims and Issues
2. A preliminary hearing (case management) was previously conducted in this
case, on 10 November 2020. In the case management order following that hearing,
Employment Judge Sharkett partly identified the issues (357). The claimant was
ordered to provide further information in order for the issues to be identified. The
claimant provided a document (42) which identified the matters relied upon for the
constructive dismissal claim.
3. The claimant did not provide to the Tribunal a document which identified
which matters were relied upon as sex discrimination or disability discrimination, or
harassment on grounds of sex or disability. She also did not identify which types of
disability discrimination she was alleging. The case management order had
explained what was required (347). It was perhaps unfortunate in this case that the
parties did not address with each other, or in the case of the respondent raise with
the Tribunal, the absence of this information being provided.
4. It was understood that there had been some correspondence between the
parties prior to the hearing about the issues. Clearly it would have been preferable if
an agreed list of issues had been prepared earlier. The respondent’s representative
provided a list of issues at the start of the hearing which contained what he
understood to be a list of the issues to be determined. The claimant was given the
opportunity during the reading time on the first day to consider the list and indicate
what, if anything, she disagreed with in it. She identified some limited issues, which
are reflected in the list as produced below. The Tribunal identified two issues which
are also recorded. As it was explained it would be, that list was considered by the
Tribunal to be the list of those issues which it needed to determine. Some issues
regarding the list of issues were raised with the parties at the end of the evidence on
the fourth day, prior to submissions being finalised or presented.
JUDGMENT AND REASONS
Case No. 2405590/2020
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5. One particular issue raised by the respondent in the list of issues, was that it
contended that ten of the breaches which were relied upon in the further particulars
document (42), were not in fact part of the pleaded case. It would have been
preferable if that contention had been raised and addressed, prior to the start of the
hearing. It was confirmed with the claimant by the Tribunal that, if the breaches were
not contained in the claim form as contended, she was making an application to
amend the claim to include those elements (for all of the alleged claims to which they
related). As recorded below, when the claimant made her points about the list of
issues following the time for reading, she accepted that alleged breaches 10 and 16
were not part of the pleaded case, but she contended that the others were. The
Tribunal proposed that the issue of whether the allegations were in the claim and/or
whether the application to amend would be granted, would be determined at the end
of the hearing after all the evidence had been heard. Both parties agreed to that
approach, the respondent confirming that it had approached the hearing ready to
present evidence on all the matters raised. The Tribunal took this approach as it
ensured that the case was heard within the time allocated and the evidence was
heard on the days for which the parties had prepared.
6. The remedy issues were left to be determined later, only if the claimant
succeeded in her claim.
7. The issues identified were as set out at paragraphs 8-28 below. The breaches
referred to below are those using the numbering in the further particulars document
(42). It was confirmed with the claimant that the matters listed as breaches 21 and
22 in that document were not allegations of discrimination and occurred after she
handed in her notice (which meant that they could not be part of the reason why she
resigned). The claimant alleged only that Mr Anderson unlawfully discriminated
against her or harassed her, she did not allege that any other employees of the
respondent unlawfully discriminated against her or harassed her.
The list of issues
Jurisdiction/time (section 123 of the Equality Act 2010)
8. When is the act or omission treated as having happened?
9. Is there a continuing act or omission over a period of time?
10. Are any of the claims out of time? The claims relying upon the dismissal itself
were brought within time, as were any claims relying upon events/continuing acts
which occurred/ceased after 19 December 2019. In the list of issues prepared by the
respondent it put forward that the last act/omission claimed by the claimant was the
conversation with Mr Anderson on 22 November 2019 which was therefore out of
time. The Tribunal added to the list of issues, as allegations of direct discrimination,
the constructive dismissal itself which, if found to be an act of discrimination, would
have been entered in time.
11. Is it just and equitable to extend time in the circumstances?
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