Mrs N A Wright v Ark Housing Association: 4110004/2021

EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4110004/2021 5 Held via Cloud Video Platform (CVP) on 1 March 2022 Employment Judge McManus 10 Mrs Natalie Ann Wright Claimant In Person Ark Housing Association Respondent Represented by Ms S MacPhail Solicitor 15 PRELIMINARY HEARING DECISION Decision • The amendment in respect of a claim under section 44 of the Employment Rights Act is refused. 20 • The amendment in respect of the claim under section 13 of the Equality Act 2010 (sex discrimination) is allowed. • The claim under section 13 of the Equality Act 2010 (sex discrimination) is time barred and is dismissed. • 25 The claims under the Equality Act 2010 based on the protective characteristic of disability (disability discrimination) proceed and a Final Hearing will be arranged. Background 1. 30 This Preliminary Hearing (‘PH’) was for the purpose of considering whether or not the claimants’ application to amend the ET1 should be allowed. A Joint Bundle was prepared for today’s PH, with page numbers from 1 - 110. The documents in that Bundle which are mentioned in this decision are referred to by their page number in that Bundle (JB1 – JB110) 4110004/2021 2. Page 2 A PH for the purposes of case management took place over the phone on 3 September 2021. In the Note issued following that Telephone Case Management Preliminary Hearing (‘TCMPH’), it is recorded that the ET1 initiated claims for discrimination under the Equality Act 2010 relying on the protected characteristics of pregnancy and disability and referred to an 5 incident where there were no suitable arrangements for breast feeding, as well as the respondent’s position in respect of the claimant wearing a face mask at work. 3. It was recorded in the Note issued following the TCMPH in September 2021 that it was clarified at that TCMPH that in respect of the alleged failure to 10 make suitable arrangements for breast feeding, the claimant was not bringing a claim for pregnancy discrimination but for direct sex discrimination under section 13 of the Equality Act 2010. That claim relies on the circumstances relied upon in the ET1 as being pregnancy discrimination. The labelling was changed to sex discrimination because the claimant’s baby was over 26 15 weeks at the time of the alleged incident. The alleged incident relied upon is failure to provide accommodation for the claimant to express when making arrangements for the claimant’s shift on 9 September 2020 and failure to carry out a risk assessment. 20 4. That Note records that the claimant relies on having disability status as a result of asthma, anxiety, depression and PTSD. The claimant’s claims in respect of disability discrimination relate to the respondent’s requirement for her to wear a face mask at work. 5. 25 In their ET3, the respondent denies discrimination. It is their position that a claim relying on any failure to provide suitable facilities for expressing on 9 September 2020 is timebarred. It is further denied that the claimant raised with the respondent that there was any issue in respect of facilities due to be provided on that day. The claims in respect of disability discrimination, pregnancy and maternity discrimination or sex discrimination and unlawful 30 deductions are disputed and further specification was called for. It is denied that the Tribunal has jurisdiction to hear a claim in respect of data protection. 4110004/2021 6. Page 3 At the TCMPH in September 2021, the claimant was directed to provide a disability impact statement. She was also directed to provide further specification of her claims by answering questions set out in the Note issued following the TCMPH. The questions include:• 5 “Are you making a claim under section 44 of the Employment Rights Act 1996? • If so, specify the subsection of the Act under which the claim is brought (that is, section 44 1 (a) – ( e)). 7. The Note records that the claimant would consider whether she would agree to disclosing her medical records. It was noted that a further TCMPH would 10 be arranged and that consideration would be given as to whether it was necessary to have a Preliminary Hearing to determine whether the claimant had disability status. There is no mention in that Note of any potential issue in respect of time bar. 15 8. The claimant subsequently sought to answer the questions set out in that Note. She provided further information on 17 September 2021 (JB59 – 66). The respondent provided their responses to that information (JB67 – 73) and asked for further specification (JB74-75). The claimant then answered that call for further specification (JB76-88). The respondent’s position was that 20 the claimant’s claim required to be amended if the claimant sought to bring claims of sex discrimination and under section 44 of the Employment Rights Act 1996 (‘ERA’). The claimant then made an application to amend, the terms of which are at JB89 – 90. This PH is to determine whether the ET1 should be allowed to be amended in terms of that application. The terms of the 25 proposed amendment are:“Sex discrimination. On 8th September 2020, the Claimant received an email from The Respondent’s Ailsa Mitchell which said that it was a management instruction that her shift (for 9th September 2020) had now changed to the office. The 30 Claimant was threatened with disciplinary action if she did not attend the 4110004/2021 Page 4 meeting at the office. This was to discuss the reasons why the Claimant was not wearing a mask which violated the Claimant’s dignity. It is unreasonable for the Respondent to expect the Claimant not to be able to breastfeed during a 7 hour shift, which was not the mutually agreed upon venue. The Claimant’s 5 child was older than 26 weeks at the time the incident, so therefore comes under Sex discrimination. The Respondent never done a Risk Assessment for the Claimant to accommodate her breastfeeding needs, despite the Claimant requesting this to be done on 24th June 2020, which provided the Respondent with the information to be able to do this. 10 Section 44 of the Employment Rights Act. The subsection of this act is 44 (1) [F4(1A) (a) + (b). On 8th September 2020, the Claimant received an email from The Respondent’s Ailsa Mitchell which said that it was a management instruction 15 that her shift (for 9th September 2020) had now changed to the office. The Claimant was threatened with disciplinary action if she did not attend the meeting at the office. This was to discuss the reasons why the Claimant was not wearing a mask which violated the Claimant’s dignity. This should have been up to the Claimant whether or not she wanted to discuss her disabilities. 20 It is unreasonable for the Respondent to expect the Claimant not to breastfeed during a 7 hour shift, in a place which was not the mutually agreed upon venue, nor was there a clean, warm private room there. The Claimant is making this claim because she was instructed to change her shift without adequate notice. The Claimant felt she would be placed in a 25 circumstance of danger which she reasonably believed to be serious and imminent and which she could not reasonably have been expected to avert. The Claimant felt that she took appropriate steps to protect herself from the danger by declining the offer. The danger was the risk of mastitis which is harmful to the Claimant and the child she was/is breastfeeding. The Claimant 30 has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer.” 4110004/2021 Page 5 Findings in Fact 9. The following facts relevant to the issue for determination at this PH were found or admitted. 10. The ET1 claim form was submitted to the Employment Tribunal by the claimant on 16 June 2021 (JB4). Prior to starting these proceedings, the 5 claimant contacted ACAS. The ACAS ECC Certificate (JB3) states that the date of receipt by ACAS of the Early Conciliation notification was 15 April 2021 and that the ACAS Early Conciliation Certificate was issued on 27 May 2021. 10 11. The circumstances relied upon in the ET1 included the respondent’s alleged failure to provide facilities for the claimant, as a breast feeding mother, to express her milk at the work location of her changed shift on 9 September 2020 and reliance on alleged failure of the respondent to carry out a risk assessment. The date of the alleged treatment relied upon is 8 September 2020, being the date when the claimant was directed to attend the meeting 15 on 9 September 2020 (which did not then take place). It is those circumstances which the claimant relies on in her application to amend, both in respect of the claim for sex discrimination and the claim under section 44 of the Employment Rights Act 1996. 20 12. Shortly after 8 September 2020, the claimant raised a grievance with her employer. The claimant believed that she could not contact ACAS until her employer had dealt with the grievance. The claimant took advice from her trade union advisor at UNITE. She originally spoke to Sandy Smart from UNITE. Graham Turnbull at UNITE accompanied the claimant to subsequent grievance meetings with the respondent. The claimant had difficulty obtaining 25 advice from her Trade Union representative, who the claimant understood was suffering from a close bereavement. 13. There was some delay in the claimant’s grievances raised with the respondent being dealt with. The claimant was advised of the outcome in 30 April 2021. On receiving the outcome, the claimant contacted ACAS and thereafter submitted her ET1 claim form to the Employment Tribunal. The 4110004/2021 Page 6 claimant believed that she was going through the proper channels by awaiting the outcome of her grievance raised with her employer before submitting a claim to the Employment Tribunal. The claimant had thought that the issues would be resolved through the grievance process. 5 14. The grievance raised by the claimant in September 2020 was in respect of the respondent’s...