Mr S Johnson v R Webb and KOA RTM Co Ltd: 3201349/2020
| Jurisdiction | England & Wales |
| Judgment Date | 30 December 2022 |
| Date | 30 December 2022 |
| Court | Employment Tribunal |
| Published date | 06 January 2023 |
| Subject Matter | Age Discrimination |
Case Number: 3201349/2020
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EMPLOYMENT TRIBUNALS
Claimant: Mr S Johnson
Respondents: (1) Robert (known as Robin) Webb
(2) KOA RTM Co Ltd
Heard at: East London Hearing Centre
On: 1, 2, 3 and 4 February; and in chambers on
7 March, 25 July, 12 and 17 October 2022
Before: Employment Judge Jones
Members: Ms M Legg
Dr J Ukemenam
Representation
Claimant: Mr M Salter (Counsel)
Respondents: Mr B Randle (Counsel)
RESERVED JUDGMENT
1. The Claimant was not dismissed. The complaint of constructive unfair
dismissal fails and is dismissed.
2. The Claimant was not automatically unfairly dismissed.
3. The Claimant was a disabled person for the purposes of the Equality
Act 2010.
4. The complaints of disability discrimination fail and are dismissed.
5. The complaint of harassment fails.
6. The complaint of age discrimination fails and is dismissed.
REASONS
1. The Tribunal h eard the claimant’s claims of constructive unfair dismissal,
discrimination arising from disability, direct age discrimination and disability related
harassment.
Case Number: 3201349/2020
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2. At the start of the hearing, we had a discussion on the issues that the
Tribunal would be asked to decide.
3. At the end of the discussion, it was agreed that the Claimant brings one
complaint of harassment at paragraph 14.9 of the list of issues sent to EJ Burgher
following his preliminary hearing, along with the first part of paragraph 25 of the
grounds of claim. The balance of that paragraph relates to the allegation of
discrimination arising from disability. The rest of the issues are as set out in the
list. The respondent confirmed that it was not relying on justification for any age
discrimination.
4. On the respondent’s application, the Tribunal ordered the Claimant to redact
parts of his witness statement that were not relevant to the issues in the claim.
5. The Tribunal apologises for the delay in the promulgation of this judgment
and reasons. This was due to difficulties in the Tribunal arranging to meet in
chambers during the year and pressure of work on the judge. This delay was
regrettable but unavoidable.
Evidence
6. The Tribunal had an agreed bundle of documents. We had witness
statements from the Claimant and on his behalf, from Karen Day, Director of
Robert Day Associates who knew the Claimant in his capacity as Service Manager;
and Madalene Drury, who had previously been a director o f KOA between July
2018 – April 2019.
7. On behalf of the Respondents, we had witness statements from the 1st
Respondent, Robert (known as Robin) Webb, Chairman of KOA Right to Manage
Ltd and the Claimant’s line manager; Riaz Ahmed, temporary Contracts and
Services Manager for the 2nd Respondent; and Mariline Cooke, resident and board
member.
8. All witnesses gave live evidence at the hearing. Apart from Mrs Day, all the
other witnesses live in either Charles or Stuart House which are situated in close
proximity to each other and are both part of KOA Right to Manage Ltd.
9. The Tribunal made the following findings of fact from the evidence produced
at the hearing. Evidence is a combination of live evidence at the hearing and
documents. The Tribunal has endeavoured to make findings of fact only on those
matters that are relevant to the issues that we have to determine. We were
especially concerned to only make findings on matters relevant to the claim in this
case as we were conscious that the Claimant, 1st Respondent and most of the
witnesses continue to be neighbours and are likely to be s o for the foreseeable
future and it would be in the interests of justice not to unnecessarily damage those
relationships.
Findings of Fact
10. The Kingsmead development consists of a couple of blocks of flats. The
Kingsmead Owners Association (KOA) was incorporated on 11 March 2009. This
was following the introduction of the Commonhold and Leasehold Reform Act 2002
Case Number: 3201349/2020
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and the creation of the statutory right for leaseholders to manage their own
properties by setting up a ‘Right to Manage’ company.
11. Prior to the formation of KOA, the properties and the nearby car park were
owned by Jayga te Developments Ltd who provided ‘combined facilities support’
through PMS. The claimant was initially employed by Jaygate as Service Manager
of the flats. He began his employment on 1 January 2007. He was TUPE
transferred to PMS Leasehold Management Ltd from 1 July 2007. PMS employed
him as its on-site Service Manager from 2007 on a salary of £23,500.
12. The main reason for the residents creating KOA, a right to manage
company, was to keep costs down and stop the increase in service charges that
had happened when a corporate management company managed and maintained
the properties. The residents wanted to have th e freedom to choose how they
managed the properties and not always have to deal with the freeholder, an absent
management company, situated far away from the properties. PMS resisted the
respondents’ application and did not cooperate with the transfer of the Claimant’s
employment to KOA. As a result, KOA was not provided with any of the Claimant’s
employment documentation, on his transfer from PMS. They only had the job
description which was at page 67 of the hearing bundle. PMS did not pass over to
the 2nd Respondent any procedures, handbooks or details of any practices that
they used in managing the Claimant.
13. The 1st Respondent confirmed that the job d escription on page 67 of the
bundle was the Claimant’s just before the transfer, but it is likely that the
2nd Respondent did not have it until sometime after the transfer.
14. When the Claimant was employed and managed by PMS, he had no on-
site line management. There was no other PMS presence on the estate and
therefore no direct supervision of him while at work. Once KOA won the right to
manage the buildings from PMS, the claimant’s employment transferred along with
the buildings from Jaygate to KOA. The buildings have approximately 95, one,
two and three-bedroom flats. The car park, which is situated below Stuart House;
has 209 car spaces.
15. KOA took over the combined facilities and support activities (such as a gym
and swimming pool); of the buildings known as Charles House and Stuart House.
There was also the nearby car park which was also owned by Jaygate
Developments. The claimant’s employment transfe rred to the 2nd Respondent on
1 July 2013 along with the right to m anage Charles House, Stuart House and the
car park.
16. KOA manages the funds for each building, which it uses to pay bills a nd
carry out repairs and maintenance. As a not-for-profit organisation the
2nd Respondent believes that it has to maintain a zero cash balance. The
management of the buildings is carried out by a board of volunteer directors. The
1st Respondent is the Chairman of the board and Ms Drury was on the board for a
short time. Major John Nixon was on the board and was also the person the
Claimant frequently liaised with about work as he was in the office more frequently
than Mr Webb.
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