Mrs P Omonkhegbe v Transport for London: 2301706/2020
| Jurisdiction | England & Wales |
| Judgment Date | 16 December 2022 |
| Date | 16 December 2022 |
| Citation | 2301706/2020 |
| Court | Employment Tribunal |
| Published date | 01 August 2022 |
| Subject Matter | Disability Discrimination |
Case no. 2301706/2020
1
EMPLOYMENT TRIBUNALS
Claimant: Mrs P Omonkhegbe
Respondent: Transport for London
Heard at: London South Employment Tribunal
On: 20 – 24, 27 - 28 June 2022, in chambers 29 June 2022 – 1 July
2022
Before: Employment Judge Dyal, Ms Foster-Norman, Mr Shaw
Representation:
Claimant: in person
Respondent: Ms Urquhart, Counsel
PREAMBLE
1. The parties were anxious for the tribunal to deliver its judgment prior to the
Claimant’s anticipated return to work from maternity leave in August 2022. It has
endeavoured to do so.
2. However, the tribunal wishes to make clear that the Judgment and Reasons
below do not resolve, nor do they attempt to resolve, such current issues as there
may now be between the parties upon the Claimant’s return to work (whether
related to reasonable adjustments, flexible working or otherwise). The tribunal’s
judgment and reasons deal only with the issues that were before it in these
proceedings.
Case no. 2301706/2020
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RESERVED JUDGMENT
1. By consent the Claim form is amended to include the complaints in the List of
Issues (appended hereto).
2. By consent the complaints at paragraph 7.1 and 10.1 of the List of Issues are
dismissed upon withdrawal.
3. The complaint at paragraph 20.1 of the List of Issues, being a complaint of
pregnancy discrimination contrary to s.18 Equality Act 2010 in respect of
working hours, succeeds:
a. It is well founded on its facts;
b. It was presented outside the primary limitation period but it is just and
equitable to extend time.
4. The complaints otherwise fail and are dismissed.
CASE MANAGEMENT ORDERS
1. The parties should now liaise and seek to agree remedy.
2. If they are not able to agree remedy by 1 September 2022, they should write to
the tribunal requesting a remedy hearing.
REASONS
Introduction
1. The matter came before the tribunal for its final hearing.
The issues
2. The claim form is very brief and does not identify the Claimant’s complaints with
any detail. There were two Preliminary Hearings in advance of the Final Hearing
which attempted to address the particulars of the claim and thus the issues in the
case.
3. The parties had liaised in advance of the hearing and presented the tribunal with
a draft List of Issues.
4. We had a lengthy discussion of the issues on day 1 at the outset of the hearing.
In the course of the discussion:
4.1. The Claimant withdrew the complaints at paragraphs 7.1 and 10.1 of the List
of Issues and agreed for them to be dismissed upon withdrawal. Subject to
that, the Claimant confirmed that the List of Issues represented the
complaints she wished to make;
Case no. 2301706/2020
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4.2. The Claimant agreed to clarify the date on which she said she became a
disabled person within the meaning of the Equality Act 2010;
4.3. The Respondent took the point that a small number of allegations on the List
of Issues post-dated the claim form and could not therefore have been
identified in the claim form. The Respondent had dealt with those matters in
its witness evidence and would reflect on whether or not it objected to the
Claimant pursuing them;
4.4. The tribunal noted that the Respondent had not set out the detail of its
justification defences but that it needed to. The Respondent agreed to add
the same to a further draft of the lists.
5. Later on day 1:
5.1. the Claimant clarified the date on which she says she became disabled;
5.2. a further draft of the list of issues was produced that identified the detail of
the justification defences the Respondent pursued;
5.3. the Respondent indicated that it would not take a pleading point in relation to
the matters that post-dated the claim form.
6. At the outset of day 2 there was a further discussion of the issues in light of the
developments. It was agreed that the way in which the Respondent had identified
the legitimate aims relied upon did not pose any surprises and was consistent
with the general shape of its case to date. Some changes were agreed to
paragraph 12 to properly reflect the test for harassment. The list of issues was
agreed. The final draft appears in the appendix to these reasons.
7. The tribunal suggested that since the parties were agreed that the final list of
issues represented the issues the tribunal should resolve, it would make sense to
grant the Claimant permission to amend the claim form to include the complaints
on the list of issues. The parties agreed and permission to amend in those terms
was granted by consent.
The hearing
8. Employee A documents and privacy orders:
8.1. The Respondent initially applied to disclose certain documents in relation to
Employee A to the tribunal alone and not the Claimant. That application was
deferred until day 2 of the hearing.
8.2. Following an initial discussion of the application and the Employment Judge
referring the parties to some authority, the application was further deferred
until 2pm.
8.3. The Respondent’s considered position was that it needed to disclose the
documents to the Claimant but that privacy orders should be made and that
there should be limitations on the way in which the Claimant inspected the
documents (in the tribunal room only).
8.4. We considered the application carefully. We made privacy orders (under
separate cover) and gave reasons for doing so orally at the time. We ordered
that the Claimant be allowed to inspect the documents in the usual way (i.e.,
by being given copies.) We also ordered that the Claimant could only use the
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