Miss A Ovonlen-Jones v The Royal Marsden NHS Foundation Trust: 2204503/2018 and others
| Judgment Date | 19 October 2020 |
| Citation | 2204503/2018 and others |
| Published date | 05 November 2020 |
| Court | Employment Tribunal |
| Subject Matter | Unlawful Deduction from Wages |
Case Number: 2204503/2018, 2204504/2018, 2206445/2018, 2206446/2018,
2206447/2018, 2206448/2018, 2206449/2018, 2200656/2019
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EMPLOYMENT TRIBUNALS
BETWEEN
Claimant AND Respondent
Miss A Ovonlen-Jones The Royal Marsden NHS Foundation Trust
Heard at: London Central On: 5-16 October 2020
Before: Employment Judge Stout
Mrs H Craik
Mr D Shaw
Representations
For the claimant: Ms L Millin (counsel)
For the respondent: Mr J Gidney (counsel)
JUDGMENT
The unanimous judgment of the Tribunal is that:
(1) The Respondent did not victimise the Claimant in contravention of ss 27
and 39(2)(c) or (d) of the Equality Act 2010 (EA 2010).
(2) The Respondent did not discriminate against the Claimant because of her
race or sex in contravention of ss 13 and 39(2)(c) of the EA 2010.
(3) The Claimant’s claim of unfair dismissal under part X of the Employment
Rights Act 1996 (ERA 1996) is not well-founded and is dismissed.
Case Number: 2204503/2018, 2204504/2018, 2206445/2018, 2206446/2018,
2206447/2018, 2206448/2018, 2206449/2018, 2200656/2019
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REASONS
Introduction
1. Ms Ovonlen-Jones (the Claimant) was employed by the Royal Marsden NHS
Foundation Trust (the Respondent) as a Band 3 Health Care Assistant in
Theatres at the Respondent’s Chelsea site from 13 February 2012 until her
dismissal on 26 October 2018. The Respondent’s case is that the Claimant
was dismissed for misconduct. The Claimant in these proceedings claims that
her dismissal was unfair under Part X of the Employment Rights Act 1996
(ERA 1996) and/or an act of victimisation contrary to ss 27 and 39(2)(c)/(d) of
the Equality Act 2010 (EA 2010). She further claims that, prior to dismissal,
she was victimised and directly discriminated against on grounds of her race
and/or sex contrary to ss 13 and 39(2)(c) EA 2010.
The issues
2. The issues to be determined were identified in the Schedule to the Order of
EJ Taylor of 20 December 2019. EJ Taylor’s Order makes clear that the List
of Issues in that Schedule “By consent …shall be the only claims and issues
for determination. No other claims or issues will be pursued by the Claimant”.
This agreement was reached by the parties in the face of a strike-out
application by the Respondent which was not pursued as a result of the
Claimant’s agreement to withdraw other matters raised in her claim forms.
3. Notwithstanding this agreement and order the Claimant’s witness statements
raised many other issues, including matters that were subject of the claims
heard and determined by a previous tribunal (which we refer to herein as ‘the
Wade Tribunal’) and which are accordingly res judicata, or are matters which
could and should have been brought forward to that Tribunal but which were
not and which it is now an abuse of process for the Claimant to pursue in
these proceedings under the rule in Henderson v Henderson.
4. However, there has been no application to amend the claim in light of the
Claimant’s witness statements and accordingly, although we read the
Claimant’s statements in full, we have not made findings about matters other
than those which properly form the subject of the claims in these proceedings,
and matters of background which appear in our judgment to be relevant to
those claims.
5. The issues that we have to determine are therefore as follows:-
Victimisation (S27 of the Equality Act)
1. The Claimant relies on the following Protected Acts:
Case Number: 2204503/2018, 2204504/2018, 2206445/2018, 2206446/2018,
2206447/2018, 2206448/2018, 2206449/2018, 2200656/2019
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1.1 the presentation on 7th July 2017 of her Claim of age, race and
sex discrimination, Case Number 2206529 / 2017 (‘Claim 1’) to
the Employment Tribunal, pursuant to section 27(2)(a) of the
Equality Act 2010 (the bringing of proceedings under the Act);
and,
1.2 the presentation on 30th November 2017 of her Claim of age,
race and sex discrimination, Case Number 2207940 / 2017
(‘Claim 2’) to the Employment Tribunal, pursuant to section
27(2)(a) of the Equality Act 2010 (the bringing of proceedings
under the Act); and,
1.3 giving evidence or information in connection with Claim 1, being
proceedings under the Act, pursuant to section 27(2)(b) of the
Equality Act 2010; and,
1.4 giving evidence or information in connection with Claim 2, being
proceedings under the Act, pursuant to section 27(2)(b) of the
Equality Act 2010;
2. The Respondent accepts that the 4 acts set out in sub paragraphs
(1.1) to (1.4) above qualify as Protected Acts for the purposes of the
Claimant’s claim of victimisation pursuant to section 27 of the Equality
Act 2010.
3. Did the Respondent subject the Claimant to the following acts of
detriment:
3.1 On 20th April 2018 did Lian Lee, at meeting with Claimant in
morning, refer allegations regarding the Claimant to a formal
investigation by Human Resources when they did not merit such
referral rather than dealing with them through informal
procedure?
3.2 On 20th April 2018 did Graham Simmons and Lian Lee (i) falsely
accuse Claimant of covertly recording sickness absence
meeting held on 4th August 2017 and (ii) threaten the Claimant if
she failed to produce the covert recording within one week?
3.3 On 3rd May 2018 did Lian Lee insist that Claimant have an
Appraisal with Sister Jean Arjoon, contrary to the advice of the
Occupational Health doctor who had advised that a different
appraiser should be nominated?
3.4 On 17th May 2018 did Tina Kitcher fail to validate a Care
Certificate for the Claimant?
3.5 On 30th May 2018 did Graham Simmons and/or Lian Lee
temporarily redeploy the Claimant to the Endoscopy Department
following the conclusion of Claim 1 and Claim 2?
3.6 On 20th July 2018 did Robin Hurst-Baird issue a 1st formal
sickness absence warning contrary to Trust policy rules?
3.7 On or about 25th July 2018 did Andrew Dimech and/or Graham
Simmons suspend the Claimant?
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