Mrs J Madeley v Cambrian Group: 1309576/2020
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 2022 |
| Date | 25 January 2022 |
| Citation | 1309576/2020 |
| Court | Employment Tribunal |
| Published date | 23 March 2022 |
| Subject Matter | Sex Discrimination |
Case Number: 1309576/2020
1
EMPLOYMENT TRIBUNALS
Claimant
Respondent
Mrs. J. Madeley
v
Cambrian Group
Heard at: Birmingham On: 29 & 30 November, 1 & 2
December 2021
In chambers 3 December 2021
Before: Employment Judge Wedderspoon
Members : Mrs. K. Ahmad
Mr. A.A. Moosa
Representation:
Claimant: In Person
Respondents: Mr. C. Crow, Counsel
JUDGMENT
1. The claimant’s claim for sexual harassment is well founded and succeeds.
2. The claimant’s complaint of victimisation is well founded and succeeds.
3. In so far any complaints are out of time, the Tribunal finds it is just and equitable
to extend time.
4. The claimant’s complaint of constructive unfair dismissal is not well founded
and is dismissed.
5. The wrongful dismissal claim is not well founded and is dismissed.
6. The claimant’s complaint of direct discrimination is not well founded and is
dismissed.
7. By 9 December 2021 the claimant (if she so decides) will update her schedule
of loss.
8. By 5 January 2022 the claimant will disclose to the respondent any fit notes,
pay slips of new employment, benefits received since the end of her
employment with the respondent, applications for employment, pension
contribution information.
9. By 19 January 2022 the respondent will compile an updated bundle of
documentation for the remedy hearing and provide a paper bundle to the
claimant.
10. Witness evidence as to remedy should be exchanged by 2 February 2022.
11. By 9 December 2021 the claimant will disclose to the respondent relevant
medical material from April 2020 to date concerning her contention that her
mental health was affected by the respondent’s discriminatory treatment.
12. A remedy hearing will take place in person at Birmingham Employment Tribunal
on 7 March 2022 for one day.
Case Number: 1309576/2020
2
REASONS
1. By claim form dated 8 October 2020, the claimant brought complaints of
constructive unfair dismissal, direct sex discrimination, harassment related
to sex, wrongful dismissal and victimisation.
2. The respondent had prepared a list of issues to be determined. On reading
the case management order dated 16 December 2020 the Tribunal
considered the claimant had made a section 39 (2)(c) of the Equality Act
2010 claim. Mr. Crow agreed and amended the list of issues for day 3. It
was agreed that the issues to be determined by the Employment Tribunal
were as follows :-
Constructive unfair dismissal:
1. Has C proved that R breached the implied term of ‘trust and confidence’ (a
fundamental/repudiatory breach) by:
i. Allowing JB to behave in a sexual manner around YP;
ii. Allowing JB to move to another house whilst under investigation,
notwithstanding the nature of the allegations being investigated (which C
says were allegations of ‘sexual harassment’);
iii. Not investigating C’s complaints ‘properly’;
iv. Not supporting C by failing to ensure C would not come into contact with JB;
v. Not supporting C by refusing the request for paid time off (instead informing
her that it would have to be sick pay when JB was suspended on full pay).
2. If there was a fundamental/repudiatory breach/breach of the implied term of
trust and confidence:
i. Did C affirm the contract before resigning;
ii. Was the resignation in response to R’s conduct/fundamental breach;
3. If there was a dismissal:
i. What was the principal reason for dismissal?
ii. Was it a potentially fair reason?
iii. Was the dismissal fair or unfair (per s.98(4) ERA).
s.13 Direct Discrimination because of sex:
4. Has C proved that R dismissed her by failing to “respond appropriately” to C’s
complaints of sexual harassment by:
i. Not investigating C’s complaints ‘properly’;
Case Number: 1309576/2020
3
ii. Not supporting C by failing to ensure C would not come into contact with
JB;
iii. Not supporting C by refusing the request for paid time off (instead
informing her that it would have to be sick pay when JB was
suspended on full pay).
5. If so, was that ‘less favourable treatment: was it because of C’s sex and/or
because of the protected characteristic of sex more generally?
s.26(1) and s.26(2) Harassment:
6. Has C proved the following conduct:
i. JB unnecessarily brushing past C touching her arms, legs and body ‘from
April 2020 until his suspension on 18.5.20’
ii. JB making comments about a picture of C with clients: :who is that in the
picture; when do I get to meet her; she’s a bit of alright”;
iii. (on or about 11th or 12th May) JB coming close to C, putting the picture in
her face and saying, “who’s that bit of fluff, she’s a bit of alright” and “it’s
when the picture disappears you need to worry love”;
iv. (on or about 11th or 12th May) JB making similar comment to P. Amerson;
v. JB making comments to C: “aren’t you a luck girl getting to sleep with
me” when on night shifts with C;
vi. JB asking C if she was happily married, where she lived and what her
husband looked like;
vii. JB saying he had checked staff on social media before starting at the
house;
viii. (in the dining room) JB looking C up and down, smirking, and saying “I
bet you’re a handful”;
ix. JB saying that men liked curvy women and boys liked skinny girls, whilst
looking C and Ella Preece up and down;
x. JB making comments about clients with regard to their stomach and
breasts, and drawing comparisons with his partner;
xi. During a medication count: JB saying “she’s got a lot of condoms, does
she use them?”.
xii. R telling C that her allegations ‘were not investigated as sexual
harassment of C but rather as a safeguarding issue of the clients’.
xiii. R made C to feel that it was her fault.
7. If so, was the conduct unwanted?
8. Is so, did it relate to sex and/or was it conduct of a sexual nature?
9. Did the conduct have the ‘harassing effect’ (i.e. the effect described in
s.26(1)(b) taking into account the matters referred to in s.26(4)?
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