Mrs K Annable v The Honey Pots Day Nursery Ltd: 2600346/2021
| Jurisdiction | England & Wales |
| Judgment Date | 07 December 2022 |
| Date | 07 December 2022 |
| Published date | 23 December 2022 |
| Court | Employment Tribunal |
| Citation | 2600346/2021 |
| Subject Matter | Disability Discrimination |
RESERVED CASE NO: 2600346/2021
1
EMPLOYMENT TRIBUNALS
Claimant: Mrs Kerry Annable
Respondent: The Honey Pots Day Nursery Ltd
Heard at: Nottingham On: 20 and 21 September 202
Before: Employment Judge Rachel Broughton
Sitting with Members Mr Blomefield and Mr Tansley.
Representation
Claimant: Mr Randall of Counsel
Respondent: Mrs Holden of counsel
RESERVED JUDGEMENT
1. The claim of harassment pursuant to section 26 of the Equality Act 2020 (EqA) is not
well founded and is dismissed.
2. The claim of constructive unfair dismissal pursuant to section 95 (1)(C) Employment
Rights Act 1996 (ERA) is well founded and succeeds.
3. The Respondent is ordered to pay to the Claimant the following sums;
3.1 Basic Award: £1,211.85
3.2 Loss of statutory Rights: £500
3.3 ACAS uplift on the loss of statutory rights: £50
REASONS
Background
1. The Claimant was employed by the Respondent from 1 November 2017. She gave
notice of resignation on 10 October 2020. Her employment ended on 6 November
2020.
2. The ACAS early conciliation period started on 13 October 2020 and ended on 27
November. The Claimant issued her claim form on the 16 February 2021.
3. The Claimant brings claims of;
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3.1 Constructive unfair dismissal : section 95 (1)(C) ERA
3.2 Harassment related to disability : section 26 Equality Act 2010 (EqA)
Issues
4. At the commencement of the hearing, the Tribunal discussed with the parties the
list of issues which had been prepared and agreed between them.
5. The proposed list of issues included whether the Claimant was disabled within the
meaning of section 6 EqA however, the Respondent confirmed that this is no longer
an issue. It concedes that the Claimant was a disabled person because of Complex
Regional Pain Syndrome throughout the relevant period. The Claimant’s evidence
which is not disputed, is that in December 2021 she was informed that the correct
diagnosis for her condition is in fact Functional Neurological Disorder, however
neither party considers the change in diagnosis to be material.
6. What the Respondent does not concede, however is that the Respondent had
knowledge of the disability at the relevant time.
Disability – Relevant period
7. The material time for the purposes of the harassment claim is 17 and/or 18
September 2020. That is when the Facebook Posts were made and/or the
Claimant had seen them.
In the course of employment
8. Another matter which the Tribunal raised with the parties, and in particular Mr
Randall, was paragraph 9 of the list of issues; “ …was the conduct of Sharon
Redfern done in the course of employment or, was she acting as agent for the
Respondent and with the Respondent’s authority”.
9. In essence, the claim is that Ms Redfern put a comment on her personal Facebook
social media account and that others, including her partner (not employed by the
Respondent) Scott Clacher and Tammy Friend (employed by the Respondent as a
manager) followed up with other comments/posts. It is contended that the
Respondent is vicariously liable for all those comments through the conduct of Ms
Redfern.
10. The issue for determination as identified by the parties, is only whether the conduct
of Ms Sharon Redfern was carried out when she was acting as an agent for the
Respondent and with the Respondent’s authority. It is agreed between the parties
that Ms Redfern was not an employee of the Respondent.
11. The Tribunal sought to establish at the outset, whether or not it was the Claimant’s
position that Tammy Friend (manager of the Respondent) was acting in the course
of her employment when she posted her relevant Facebook comments because
this was not addressed in the agreed list of issues. Mr Randall was quite clear that
it is not the Claimant’s position that Ms Friend was acting in the course of her
employment and therefore this is not an issue the Tribunal needs to determine.
12. The claim advanced by the Claimant is that Mr Clacher and Ms Friend’s Facebook
RESERVED CASE NO: 2600346/2021
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posts “flowed” (adopting the language of Mr Randall) from the posts made by Ms
Redfern and as Ms Redfern was acting as agent of the Respondent, the
Respondent is liable for the alleged harassment arising/ “flowing” from the posts
she made. Section 111 EqA was not pleaded, was not raised in the list of issues
and not raised in submissions. Hereafter any reference to a relevant Facebook
posts is foreshortened to Post/s for ease of reference.
Constructive Unfair Dismissal
13. Another matter which the Tribunal clarified at the outset in discussion with counsel
for the Claimant, was the alleged conduct which the Claimant relies on for her
constructive unfair dismissal claim.
14. In her witness statement, the Claimant had referred to resigning because of the
Posts (which is the basis of her harassment claim) and the way her grievance was
managed. However, her Claim Form reads as though in terms of the constructive
unfair dismissal, the breach relied upon is purely the handling of the grievance.
Paragraph 15 of the claim form reads as follows; “ The Claimant believes that the
Respondent’s failure to deal with her grievance constituted a fundamental breach
of trust and confidence entitled the Claimant to resign.” That position is repeated
within paragraph 12 of the list of issues which cross-refers to paragraph 15 of the
claim.
15. Given that what was set out in the agreed list of issues appeared to be at odds with
what the Claimant had alleged were the reasons for her resignation in her evidence
in chief, the Tribunal sought clarity from Mr Randall. Mr Randall informed the
Tribunal (and repeated this in his closing submissions), that the only conduct relied
upon in terms of the constructive unfair dismissal claim is indeed the handling of
the grievance only and not the alleged harassment.
16. The issues to be determined by the Tribunal as agreed between the parties are
therefore as follows:(The numbering of the issues is as per the agreed list of issues.
The first paragraphs from the list of issues are not included because they relate to
the issue of disability now conceded);
3. During the material time (from 17 September 2020 to 6 November 2020) did R
know of the Cs disability or was it reasonable for R to have known of the Cs
disability?
Harassment
4. The Rs Sharon Redfern made a Facebook Post on or around 17 September
2020 which referred to how ‘ shocking and disgraceful work shy some people
are’ and how they embarrass themselves. The C was made aware of this Post
on 18 September 2020. The Post was commented upon by Scott Clacher (
Sharon Redfern’s partner), Tammy Friend ( the Nursery manager) and others.
When the C sought to Post a defence to the original Post from Sharen Redfern
Tammy Friend ( the Nursery Manager) commented, with “#fabricatillness”. The
C contends the original Post was directed towards her. The R disputed that the
Post was directed towards her and dispute the Cs position”
5. Was the C subjected to the conduct set out in paragraph 4 above?
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