Miss E Richards v Vodafone Ltd and Others: 4106119/2015

E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4106119/2015 Held in Glasgow on 9, 10, 11, 12, 13 & 16 May 2016 and 5 25, 26, 27, 28 and 31 October 2016 Employment Judge: Shona MacLean Members: Mr SF Evans Mr WA Stewart 10 Miss Elizabeth Richards Claimant In Person Vodafone Limited First Respondent 15 Represented by Mr Grant Hutchison Advocate Sophia Ghafoor Second Respondent 20 Represented by: Mr Grant Hutchison Advocate Chris Wilkie Third Respondent 25 Represented by: Mr Grant Hutchison Advocate Ross Fullerton Fourth Respondent 30 Represented by: Mr Grant Hutchison Advocate 35 JUDGMENT OF THE EMPLOYMENT TRIBUNAL The Judgment of the Employment Tribunal is that: 1. The claims of discrimination on the grounds of the protected characteristics of sex, age and disability are dismissed. 2. The claim that the first respondent was in breach of the sex equality Clause is 40 dismissed. 3. The claim of constructive unfair dismissal is dismissed. 4106119/15 Page 2 4. The respondent is ordered to pay to the claimant the sum of £610 as compensation for accrued but untaken annual paid leave (holiday pay). REASONS Introduction 1. Following early conciliation notification on 6 February 2015 and ACAS issuing 5 a certificate dated 6 March 2015 the claimant presented a claim form to the Employment Tribunal’s office on 20 March 2015 in which she set out several complaints, some of which were withdrawn at a case management Preliminary Hearing before Employment Judge Gall on 10 August 2015. The claimant also withdrew the claim of victimisation. 10 2. At the Preliminary Hearing on 29 January 2016 Employment Judge Meiklejohn determined that the claimant was a disabled person for the purposes of the Equality Act 2010 (EqA) but only in respect of her condition of depression and that from 27 October 2014. 3. Following a case management Preliminary Hearing on 24 March 2016 15 Employment Judge Walker set out in her Note that the following complaints remained outstanding: a. Unfair constructive dismissal (Section 94 of the Employment Rights Act 1996 (ERA)). b. Direct discrimination because of sex and age (Section 13 of the EqA). 20 c. Direct discrimination because of disability (Section 13 of the EqA) in respect of acts or omissions that occurred on or after 27 October 2014. d. Harassment related to sex and age (Section 26 of EqA). e. Harassment related to disability (Section 26 of the EqA) in respect of acts or omissions that occurred on or after 27 October 2014. 25 f. Breach of the sex equality clause (Section 66 of EqA). g. Claim for payment of accrued holiday pay and in respect of a repayment relating to the pension scheme.” 4106119/15 Page 3 4. In respect of the claim for constructive dismissal the claimant relied on the breach of the implied term of trust and confidence based on an alleged failure to deal with her grievance properly (including the appointment of a person who was not independent); an attempt to obtain medical records without her knowledge; and failure to pay the full amount of wages due in January 2015. 5 5. The acts relied upon in both the sex discrimination and harassment claims were the way in which the claimant was treated by her co-workers and manager which the claimant had set out in a document (which formed productions R37 to R48). 6. The issues to be determined by the Tribunal were as follows: 10 a. Was the claimant treated less favourably because of sex or age? b. Was the claimant treated less favourably because of disability (specifically the disability of depression) on or after 27 October 2014. c. In relation to harassment (i) Was the claimant subjected to unwanted conduct related to age or sex which had the purpose of effect of violating 15 her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her? (ii) If the conduct had that effect but it was not its purpose, was it reasonable for the conduct to have that effect? (iii) Was the claimant subjected to unwanted conduct related to disability (specifically depression) on or after 27 October 2014 which had the 20 purpose or effect of violating her dignity or creating a hostile, degrading, humiliating or offensive environment for her? (iv) If the conduct had that effect but it was not its purpose, was it reasonable for the conduct to have that effect? d. In relation to dismissal (i) Was the respondent in breach of the implied 25 term of trust and confidence by failing to deal with her grievance properly; including the appointment of a person who was not independent; attempting to obtain medical records without the claimant`s knowledge; and failing to pay the full amount of wages due in January 2015? (ii) If so does the respondent have a potentially fair reason for the conduct that 30 4106119/15 Page 4 was in breach of contract? (iii) If so did it act reasonably in conducting itself that way. e. As it had been conceded that the claimant was engaged in like work with the comparator in which she was paid less than him for a period of time, has the respondent succeeded in establishing a defence under Section 5 69 of the EqA for the difference in treatment? f. If the claimant succeeds in the above claims what should be awarded by way of remedy? 7. The claimant gave evidence on her own account. Stephanie Ferris, Dionne Queen, Ishtiak Khan and Anne Kennedy gave evidence on her behalf. The 10 second respondent, third respondent and fourth respondent gave evidence on their own account. The Tribunal also heard evidence for the respondents from Alastair Watson, Relationships Manager and Caterina Valente, Senior Manager Business Operations. 8. The parties lodged productions. The documents referred to below in the 15 claimant’s set of productions are referred to with the prefix “C”. The documents referred to below in the respondents’ set of productions are referred to with the prefix “R”. 9. The Tribunal found the following essential facts to have been established or agreed. 20 Findings in Fact September 2011 to March 2014 10. Capita Customer Management Limited (Capita) employed the claimant as a Service Desk Advisor. Her period of continuous employment commenced on 12 September 2011. She initially worked on the helpdesk for Fixed Mobile 25 Conversions (FMC) which involved giving diagnostic advice over the telephone. 11. There were two Assure helpdesk nightshift teams. Scott Dickson managed one which primarily consisted of female employees. The other rotation was 4106119/15 Page 5 managed by second respondent. She also managed the 999 team which consisted of around 20 people. The two teams were in different pods on the one floor. 12. The second respondent’s Assure team consisted of the third respondent, fourth respondent, Don McBride and Gary Simpson (the Team). Mr Simpson 5 and Mr McBride joined the Team around 2008 having previously worked in the 999 team. The third respondent joined the Team around 2010. His father was a manager and had worked with the second respondent. They socialise together as part of a pub quiz team. The third respondent facilitated the fourth respondent joining the team around 2011. The third respondent and fourth 10 respondent were friends in their late 20s who socialised out with work. 13. The second respondent found managing the third respondent and fourth respondent challenging even when she stopped having social interaction with them outside of work. She knew that they bickered and joked. 14. In early 2013 vacancies arose on the Assure team helpdesk nightshift teams. 15 The claimant was friendly with the fourth respondent. He worked in the same area of the office as the claimant. The claimant successfully applied to work in the Team. The fourth respondent was enthusiastic about her joining. 15. Around May 2013 Capita was involved in redundancy consultation with several employees including those who were based in the 999 team for whom the 20 second respondent was responsible. Her focus was with the redundancy consultation. 16. After six weeks training the claimant joined the Team in May 2013. Stephanie Ferris who also undertook the training joined Mr Dickson’s team. 17. The second respondent welcomed the claimant when she joined the Team. 25 The second respondent indicated there had been some attrition in the Team. Mr McBride was to be the claimant’s mentor. There was a lot of on the job learning although initially the Team would be doing some FMC work with which the claimant was familiar. Around December 2013 the FMC work moved to India 30 4106119/15 Page 6 18. Working on the Assure nightshift rotation could be stressful and intense. Initially the claimant participated in the general camaraderie. There was joking and sometimes inappropriate language (swearing) was used. The third respondent and the fourth respondent had a sarcastic sense of humour. 19. It was accepted that the claimant had a learning curve but as time passed the 5 Team’s perception was that the claimant was struggling as she repeatedly asked the same questions. The Team raised this with the second respondent. She attempted to ease the pressure on the claimant by delayed her taking on the role of Fault Controller. The fourth respondent created a “cheat sheet” with a view to assisting the claimant. 10 20. The third respondent and fourth respondent continued to behave immaturely and at times inappropriately. They made sarcastic comments about other employees especially those working on the dayshift. The second respondent was under increasing pressure and was unable or reluctant to deal with their inappropriate behaviour. The third respondent from time to time would feel 15 frustrated and would often respond by swearing and one occasion kicked a chair which was next to the claimant. 21. Around February 2014 the third respondent told the claimant that she would be “the death of him”. The fourth respondent told the claimant not to ask questions until he turned to face her. He made remarks about the claimant 20 being an “old...