Mr N Duke v B & M Retail Ltd: 2407320/2021 and 2408357/2021
| Jurisdiction | England & Wales |
| Judgment Date | 12 April 2023 |
| Date | 12 April 2023 |
| Published date | 29 March 2022 |
| Court | Employment Tribunal |
| Citation | 2407320/2021 and 2408357/2021 |
| Subject Matter | Unfair Dismissal |
Case No. 2407320/2021
& 2408357/2021
1
EMPLOYMENT TRIBUNALS
Claimant:
Mr N Duke
Respondent:
B & M Retail Limited
Heard at:
Manchester by CVP REMOTE
On:
24 February 2022
Before:
Employment Judge Grundy
REPRESENTATION:
Claimant:
Respondent:
Mr L Bronze, Counsel
Mr S Brochwicz Lewinski , Counsel
JUDGMENT
The Judgment of the Tribunal is that:
1. The claimant's claims in respect of disability discrimination (claim 1) were in
time given that the Tribunal declares the conduct concerned extended over a period
and may be viewed as a continuing act.
2. In the alternative the Tribunal declares it is just and equitable to extend the time
limit to allow the claimant's first claim to proceed.
3. The Tribunal has jurisdiction to hear the claimant's claims in respect of section
15 disability discrimination arising from something, section 19 indirect discrimination
and section 20-21 failure to make reasonable adjustments
4. The respondent’s application to strike out the claimant's claims succeeds in
respect of the section 15 claim under the Equality Act 2010 as the Tribunal considers
that the section 15 claim has no reasonable prospects of success.
REASONS
1. The respondent is a well-known chain of retail outlets. The claimant was
employed by the respondent as a Store Manager his base being Blackburn. His
employment commenced on 1 July 2013 and was continuing at the time of the
Case No. 2407320/2021
& 2408357/2021
2
first claim. However, by the time of the second claim his employment had
terminated on 12 April 2021.
2. Early conciliation for the first claim started on 15 March 2021 and ended on 26
April 2021. The first claim form was presented on 25 May 2021. Early
conciliation for the second claim started on 15 March 2021 and ended on 26
April 2021. The second claim form was presented on 6 July 2021.
3. The applications before the Tribunal today only concern the first claim. The
tribunal was referred to previous tribunal proceedings that resulted in a final
hearing on 14-18 September 2021 (Case No. 2401408/2019). That resulted in
a judgment with reasons sent to the parties on 15 January 2021.
4. The first claim in the present litigation is about the alleged discriminatory
treatment of the claimant by the respondent during the various national and
local lockdowns, and under furlough, caused by the Covid-19 pandemic during
2020, which resulted in an internal grievance. The second claim that ensued
concerns events that followed upon that earlier period, but which led to the
dismissal of the claimant for alleged cause by conduct.
5. This Tribunal accepts that the timings of events is significant as in late March
2020 the country went into a first modern day lockdown, movements and
personal liberty were restricted and there was much fear and anxiety
surrounding the covid 19 virus which was especially impactful for those who
were identified as clinically vulnerable in to which category the claimant fell.
6. The claimant has health issues significantly sarcoidosis /inducible laryngeal
obstruction which is the focus of this claim and also lumbar disc degeneration
which limits the distance he can drive. He is a disabled person for the purposes
of the Equality Act 2010. He was advised not to wear a face covering / visor by
his GP as this would exacerbate his respiratory problems.
7. By order of EJ Doyle of 30 September 2021 The preliminary hearing will
determine: (1) whether the first claim (or any part of it) is in time and, if not,
whether time may be extended, and (2) the respondent’s application under rule
37(1)(a) to strike out the first claim as having no reasonable prospect of
success, or alternatively to order a deposit under rule 39 on the basis of the first
claim having little reasonable prospect of success. Depending upon the
outcome of the preliminary hearing, the parties could expect there to be further
case management at that hearing, if required.
8. The case is listed for final hearing in Manchester on 19 to 22 December 2022
on claim 2 and if outstanding regarding claim 1 also.
9. The Tribunal was provided with a Bundle of documents for this hearing titled
"final bundle" which contained 734 pages. The Tribunal was not assisted by
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