Mr F Santos v POD Digital Marketing Ltd: 2603650/2020
| Jurisdiction | England & Wales |
| Judgment Date | 29 March 2022 |
| Date | 29 March 2022 |
| Citation | 2603650/2020 |
| Court | Employment Tribunal |
| Published date | 13 April 2022 |
| Subject Matter | Sexual Orientation Discrimination/Transexualism |
Case Number: 2603650/2020
EMPLOYMENT TRIBUNALS
Claimant: Mr F Santos
Respondent: POD Digital Marketing Limited
Heard: in Leicester
On: 7th, 8th, 9th 10th and, in chambers, on 11th March 2022
Before: Employment Judge Ayre sitting with members
Mr C Bhogaita
Mr A Blomefield
Appearances
For the claimant: Mr J Hallett, solicitor
For the respondent: Ms I Egan, counsel
RESERVED JUDGMENT
The unanimous decision of the Tribunal is:
1. The complaints of direct discrimination and harassment related to sexual
orientation in respect of the WhatsApp message sent by Mr Craig on 23
Case Number: 2603650/2020
March 2020 are out of time and the Tribunal does not have jurisdiction to
hear them.
2. The claim for automatic unfair dismissal related to health and safety (sections
100(d) and (e) of the Employment Rights Act 1996 fails and is dismissed.
3. The claim for automatically unfair selection for redundancy under section 105
of the Employment Rights Act 1996 fails and is dismissed.
4. The claim for direct discrimination because of sex fails and is dismissed.
5. The claim for direct discrimination because of sexual orientation fails and is
dismissed.
REASONS
Background
1. The claimant was employed by the respondent, a digital marketing business, as
a Data Analyst, from 29 October 2018 until 10 July 2020.
2. On 30 September 2020, following a period of Early Conciliation that started on
16 June 2020 and ended on 30 July 2020, the claimant brought complaints of
ordinary and automatic unfair dismissal, direct discrimination on the grounds of
sex and sexual orientation, harassment related to sexual orientation, breach of
contract, unlawful deduction from wages and for holiday pay.
3. The case was listed for a Preliminary Hearing on 18 December 2020 before
Employment Judge Ahmed. At that hearing the claims for breach of contract,
unlawful deduction from wages and for holiday pay were withdrawn and
dismissed.
4. A further Preliminary Hearing took place before Employment Judge Butler on 3
November 2021, at which Case Management Orders were made to prepare the
case for final hearing.
5. On 1 March 2022 the respondent’s solicitors applied for strike out of the claim
on the ground that the claimant had not complied with the Case Management
Orders. Employment Judge Butler directed that the application should be dealt
with at the start of the final hearing.
The Proceedings
Case Number: 2603650/2020
6. At the start of the hearing Ms Egan told us that the application for strike out was
not being pursued as the claimant had served his witness statements shortly
after the application for strike out had been made.
7. An Agreed List of Issues was submitted at the start of the hearing. One of the
issues on the agreed list was an allegation that the decision to select the
claimant for redundancy was an act of direct discrimination because of sexual
orientation. During his evidence, in response to a question from Ms Egan, the
claimant said that he was not arguing that the decision to select him for
redundancy was an act of discrimination. Rather, he said, the removal of his
photograph from the respondent’s website on or before the date upon which he
was given notice of termination of his employment, amounted to an act of direct
discrimination.
8. The allegation about the removal of the claimant’s photograph was not included
in the List of Issues but was included in the original claim form. The
respondent’s witnesses both referred to it in their witness statements and it
therefore appeared that the respondent was prepared to deal with this issue.
9. The respondent objected to including the allegation about the removal of the
photograph as an allegation of direct discrimination because of sexual
orientation.
10. We gave both parties the opportunity to make representations as to whether the
allegation about the removal of the claimant’s photograph should be included as
a separate allegation of direct discrimination.
11. Having considered these representations we concluded that the claimant
should be allowed to pursue his allegation about the photograph for the
following reasons:
a. The allegation was one that was included in the claim form;
b. It was one which the respondent was prepared and able to deal with in
its evidence, as both of the respondent’s witnesses dealt with the issue
in their witness statements;
c. Considering Selkent, the allegation was akin to a relabelling of existing
facts. It did not include new facts nor a new head of claim. The
allegation was included in the claim form;
d. When included in the claim form, the allegation was made in time; and
e. The balance of prejudice favoured including the allegation.
12. We heard evidence from the claimant and his partner Sean Gannon and, on
behalf of the respondent, from Mike McKinlay, director and owner of the
business and Colin Craig, former director. The claimant’s witness statement
ran to 52 pages, and a substantial part of his statement related to matters that
occurred after he had been given notice of termination of his employment, and
which did not appear to be directly relevant to the issues that the Tribunal had
to determine.
13. We gave the parties the opportunity to take instructions on the question of
whether what happened after the claimant was given notice of termination of his
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