Miss A Tubby v Hills Park Veterinary Group Ltd: 3205259/2021

Case Number: 3205259/2021 EMPLOYMENT TRIBUNALS Claimant Miss A Tubby Respondent: Hills Park Veterinary Group Ltd. Heard at: East London Hearing Centre On: 3, 4 and 5 May 2023 Before: Members: Employment Judge Ross Mr K Rose Mr S Woodhouse Representations: Claimant: Mr N Clarke, Counsel Respondent: Ms J Letts, Consultant JUDGMENT The Judgment of the Tribunal is that:1. The complaints against each Respondent of harassment related to sex contrary to section 26(1) Equality Act 2010 (“EQA”) are upheld in respect of the incidents set out in issues 1.1, 1.2, 1.3, and 1.4(ii) of the List of Issues at Appendix A of this Judgment. 2. The complaint against each Respondent of harassment contrary to section 26(1) Equality Act 2010 is dismissed in respect of the incidents set out in issues 1.4(i) and 1.5(i)-(iii) of the List of Issues. 3. The complaints against each Respondent of harassment by unwanted conduct of a sexual nature contrary to section 26(2) EQA are upheld in respect of the incidents set out at 1.1, 1.2, 1.3(i) and 1.3(iii) of the List of Issues. 1 Case Number: 3205259/2021 4. The complaint against each Respondent of harassment by unwanted conduct of a sexual nature contrary to section 26(2) EQA are dismissed in respect of the use of the term “little one” set out at 1.3(ii) of the List of Issues. 5. The complaints against each Respondent of harassment contrary to section 26(3)(c) EQA are dismissed. 6. The Claimant’s constructive dismissal was an act of harassment related to sex contrary to section 26(1) EQA and an act of direct sex discrimination contrary to section 13 EQA. 7. Save as set out above, the complaints against each Respondent of direct sex discrimination are dismissed. 8. The Claimant was unfairly dismissed by the First Respondent. 9. The First Respondent fundamentally breached the Claimant’s contract of employment and she was wrongfully dismissed. REASONS Complaints and Issues 1. The Claimant was continuously employed by the First Respondent as a receptionist at a veterinary surgery from February 2013 until her resignation on 12 April 2021. The Claim form was presented on 27 July 2021, after a period of Early Conciliation between 19 May and 30 June 2021 in respect of the First Respondent and 10 May to 21 June 2021 in respect of the Second Respondent. 2. The Claimant’s complaints were as follows: 2.1 Harassment related to sex under section 26(1) Equality Act 2010. 2.2 Harassment by unwanted conduct of a sexual nature (section 26(2) EQA). 2.3 Rejection of sexual advances harassment (section 26(3)(c) EQA). 2.4 Direct sex discrimination (section 13 EQA). 2.5 Constructive dismissal (with the dismissal alleged to be an act of harassment or direct sex discrimination). 2.6 Unfair dismissal. 2.7 Wrongful dismissal. 2 Case Number: 3205259/2021 3. At the outset, the Tribunal explained to the parties that the time estimate of this hearing had been reduced by one day due to lack of judicial resource; and that the hearing would consider liability only. The parties agreed a draft list of issues at the Preliminary Hearing, which took place before EJ Lewis, who approved the draft list but noted that the ET hearing the case should decide the content of the final list of issues. Having had more opportunity to read into the case and the issues raised by the cases of the parties, and having had clarification of the issues at the outset of the hearing, the ET proposed an amended List of Issues, which was re-amended in one respect and then approved by the parties. The final List of Issues is at Appendix 1. 4. Ms. Letts accepted that if the factual allegations at issue 1 were proved, the Claimant had proved breach of the implied term of trust and confidence (but not that constructive dismissal had been proved). 5. Furthermore, the Respondents admitted that if the Claimant proved that she had been constructively dismissed, the dismissal was unfair. The Evidence 6. There was an agreed bundle of documents. The page references in this set of Reasons refer to pages in the bundle. 7. The Tribunal pre-read the witness statements and then heard oral evidence from the following witnesses: For the Claimant: 7.1 The Claimant; 7.2 Denise Newsome; 7.3 Tamara Stephenson; For the Respondent: 7.4 Sharon Garnett, Practice Manager; 7.5 Michael Malone, Second Respondent. 8. In addition, the Tribunal read documents relevant to liability within the trial bundle. 9. We have set out in our findings of fact our assessment of the key witnesses’ evidence on particular factual issues. Before reaching our findings of fact, we took into account all the evidence and submissions. The submissions focussed primarily on whose evidence should be preferred and why. 10. In reaching our findings of fact, the Tribunal directed itself that the demeanour of a witness – how they appeared when giving evidence – was 3 Case Number: 3205259/2021 generally a poor guide to assessment of their reliability as a witness. An honest witness may be mistaken; and a dishonest witness may be skilled at constructing evidence which appears to be credible. We reminded ourselves that memory is fallible, and is often reconstructive. In addition, the events set out below began in 2013, and included incidents in 2019 and February and April 2021; and we took into account that memory was likely to fade over time. 11. We reminded ourselves, also, that the witnesses in this case were not expert or professional witnesses, and that they were giving evidence by video; we took into account during the hearing that they might need assistance, such as if there was any doubt about questions asked, so questions were repeated and breaks taken as and when necessary or as requested. 12. In addition, the Tribunal reminded itself that it was not investigating whether professional conduct standards were observed within the vetinerary practice, nor deciding how often the Second Respondent consumed alcohol and whether or how often he became intoxicated when he did so. 13. The Tribunal took into account the evidence of Ms. Newsome and Ms. Stevenson. They could give no direct evidence of the incidents which lay at the heart of this case. Their evidence included hearsay evidence about what they were told by the Claimant and what they observed of the Claimant. The Tribunal attached little weight to their evidence, because they could give no direct evidence about the incidents or the practices within the workplace; and, if the Claimant was mistaken about events, their evidence would contain those mistakes. 14. There were two unusual features to the hearing. First, although the parties had been informed by a Notice of Hearing dated 10 February 2022 that the final hearing would be a video hearing, on the first day of the hearing, the Respondents failed to arrange to attend at an office or room with a good internet connection. When Mrs. Garnett’s evidence was heard (2pm on 3 May 2023), there were frequent episodes of freezing and some disconnections. At each point, the hearing stopped, until the Respondents were re-connected or the freezing ended. The Tribunal explained that it was incumbent on the Respondents to find a suitable room with a reliable connection in order to further the overriding objective and ensure a fair hearing. 15. At the conclusion of the evidence of Ms. Garnett, the Tribunal adjourned to consider whether to commence the evidence of Mr. Malone. It decided not to, until the Respondent’s representative had taken instructions on where he would give evidence and whether it had a reliable connection; there could not be a fair hearing for either party unless the trial process could continue in the normal way, with cross examination and the witness responding. The Tribunal explained that in the alternative to a stable connection, the hearing would need to be converted to a face-to-face hearing in order to further the overriding objective. After the adjournment, Ms. Letts explained that the Respondents had been connecting by hotspot only, which meant the signal was poor; but the Respondents had now moved to a place nearer to the Wifi router and would continue from there for the evidence of Mr. Malone. This problem of 4 Case Number: 3205259/2021 connectivity was not present on the second day of evidence, when Mr. Malone gave his evidence uninterrupted. 16. The second unusual feature was that, when Ms. Garnett commenced her evidence, she was in what appeared to be a fairly small room with Mr. Malone. When asked whether she wished to swear on a holy book, or to affirm, she paused, whereupon Mr. Malone prompted her to say she would affirm. At that point, the Employment Judge explained that now the witness was giving evidence, he could not say anything to her and should remain quiet. It was suggested that he moved to the back of the room, to sit behind the witness, which he did. 17. When the next question was asked, Mr. Malone again prompted Ms. Garnett before she could complete her answer. The Tribunal decided that Mr. Malone would need to leave the room where Ms. Garnett was giving her evidence, explaining that he could go to another room and join the hearing from there. There was a short adjournment to allow this to happen. However, the Second Respondent did not re-join; the Tribunal were informed that there was no other available room and that he was content for the hearing to proceed. Findings of Fact 18. The First Respondent is a veterinary practice with two surgeries. The Claimant worked at the practice at 1 Lindfield Road, Romford. The premises had formerly been two houses. The Second Respondent bought the first in 1985, and converted it, into the surgery on the ground floor and a residential flat above. He moved back to live there in 2020. 19. At all material times, the flat contained the office, a main bedroom, bathroom and a spare bedroom which doubled as a stockroom. The Second Respondent considered that the premises were primarily his home, and secondly a workplace. He accepted that the...