Mrs N McGarry-Gribbin v B&Q Ltd: 2411556/2019
| Jurisdiction | England & Wales |
| Judgment Date | 02 September 2021 |
| Date | 02 September 2021 |
| Citation | 2411556/2019 |
| Court | Employment Tribunal |
| Published date | 11 February 2021 |
| Subject Matter | Unfair Dismissal |
Case Number: 2411556/2019
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EMPLOYMENT TRIBUNALS
Claimant:
Mrs N McGarry-Gribbin
Respondent:
B&Q Limited
HELD AT:
Liverpool (by CVP)
ON:
30 November, 1, 2, 3,
4, 7, 8, 14 & 16
December 2020 (in
chambers)
BEFORE:
Members:
Employment Judge Shotter
Mr G Barker
Ms C Doyle
REPRESENTATION:
Claimant:
Respondent:
In person
Mr Piddington, counsel
JUDGMENT
The unanimous judgment of the Tribunal is that:
1. The respondent was in breach of its duty to make reasonable adjustments in respect
of allegation 11(a), a requirement to work on the tills and front-end department in
respect of working on staffed tills only, on the 1 and 9 July 2019. The reasonable
adjustment was ensuring the claimant was not required to work on the staffed till in
the front-end department. The claimant’s claim of failure to make reasonable
adjustments brought under sections 20-21 of the Equality Act 2010 succeeds and is
adjourned to the listed remedy hearing listed for one-day on the 23 March 2021 via
CVP. The parties will be advised of the dial in details in due course.
2. The claimant was indirectly discriminated against on the grounds of her disability in
relation to agreed issue 11(a) when she was put to work on the staffed tills on 1 and
9 February 2019, the claim brought under section 19 of the Equality Act 2010
succeeds the respondent having failed to demonstrate that the provision, criteria or
Case Number: 2411556/2019
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practice of requiring customer advisors to work on staffed and self-serviced tills was
a proportionate means of achieving a legitimate aim. The claim is adjourned for
remedy to be assessed.
3. The claimant’s claim of disability discrimination set out in agreed issues number 7(a),
and (b) and 17(e) are out of time brought under section 13 of the Equality Act 2010
were not presented to the Tribunal before the end of the period of 3 months beginning
when the act complained of was done (or is treated as done), such complaint is out
of time, and in all the circumstances of the case, it is not just and equitable to extend
the time limit. In the alternative the claims not well-founded and are dismissed.
4. The respondent was not in breach of its duty to make reasonable adjustments in
respect of allegations 11(b), (c), (d), (e) and 15(a), (c), (d), (e), (f) and (g) and the
claimant’s claim of failure to make reasonable adjustments brought under sections
20-21 of the Equality Act 2010 fails and is dismissed.
5. The claimant was not treated less favourably because of her protected characteristic
of disability and her claims of direct discrimination set out in agreed issues 7(c), (d),
(e) and (f) brought under Section 13 of the Equality Act 2010 are not well founded and
dismissed.
6. The claimant was not treated less favourably because of something arising in
consequence of her disability in respect of allegations 16(a), (b) and (c), and her
claims of discrimination arising from disability brought under section 15 of the Equality
Act 2020 fail and are dismissed.
7. The claimant was not indirectly discriminated against on the grounds of her disability
in relation to agreed issues 11(b), (c), (d) and (e) and she was not subjected to
unfavourable treatment and her claims brought under section 19 of the Equality Act
2010 fail and are dismissed. In the alternative, the respondent demonstrated that the
provision, criteria or practice was a proportionate means of achieving a legitimate aim.
8. The respondent did not harass the claimant in respect of allegations 25 (a), (b), (c),
(d), (e), (f) and (g) and the claimant’s claim of harassment brought under section 26
of the Equality Act 2010 fails and is dismissed.
9. The respondent has not breached the implied term of trust and confidence in relation
to agreed issues 29(b), (c), (d), (e), (f) and (g). The respondent was in fundamental
breach of contract in relation to agreed issue 29(a) sufficiently serious to amount to a
fundamental breach. The claimant affirmed the contract and she did not resign as a
result of the breach. The claimant was not unfairly dismissed and her claim for
constructive unfair dismissal is not well-founded and is dismissed.
REASONS
Case Number: 2411556/2019
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Preamble
The hearing
1. This has been a remote hearing by video which has been consented to by the parties.
The form of remote hearing was Code V: Kinley CVP fully remote. A face to face hearing
was not held because it was not practicable and all issues could be determined in a remote
hearing. The documents that the Tribunal was referred to are in a bundle of 696 pages, the
contents of which I have recorded where relevant below. In addition, the Tribunal was
provided with a bundle of witness statements and separate documents consisting of written
submission by both parties, an agreed cast list, chronology, agreed list of issues and
amended list of issues.
2. The liability hearing was adjourned on Thursday afternoon 3 December 2020 at the
Tribunal’s suggestion with the agreement of the parties immediately following the claimant
emailing the Tribunal that she had taken opiate painkillers that morning and her
concentration was affected. The claimant was due to cross-examine Roger Braun, a key
witness in this case, she is a litigant in person and it was in the interests of justice to adjourn
until she felt better able to conduct her case. The claimant then continued to present her
case and cross-examine without issue for the duration of the liability hearing.
The pleadings
3. The Tribunal has taken time to understand the claimant’s claims, which are extensive
and complex in their inter-relationship and how they were presented at this liability hearing.
4. In a claim form received on 18 September 2019 following ACAS early conciliation
between 29 August 2019 and 18 September 2019, the claimant, who at the time was
employed as a customer advisor from 13 March 2017 to her resignation on 20 November
2019, claims the following:
2.1 Constructive unfair dismissal contrary to section 95(1)(c) of the Employment Rights Act
1996 (“the ERA”);
2.2 Direct discrimination relating to the claimant’s disability contrary to section 13 of the EqA;
2.3 Indirect discrimination relating to the claimant’s disability contrary to sections 19 and 39
of the EqA;
2.4 Discrimination arising from the claimant’s disability contrary to section 15 and 39 of the
EqA;
2.5 Failure to make reasonable adjustments in respect of the claimant’s disability contrary to
sections 20, 21 and 39 of the EqA.
2.6 Harassment under section 26 of the EqA.
5. The claimant’s case is that she was disabled by a physical impairment of diverticular
disease, and she does not rely on her medical conditions of asthma, anxiety and depression
as a basis for her discrimination complaint. The provision, criteria or practice (“PCP”) relied
upon is being required to work on the tills was initially being required to work on this till, but
this has been expanded as reflected in the agreed list of issues. Having heard all of the
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