Mrs R D’Rozario v Aldi Stores Ltd: 1404973/2019 and 1404718/2020
| Jurisdiction | England & Wales |
| Judgment Date | 13 May 2022 |
| Date | 13 May 2022 |
| Published date | 19 May 2021 |
| Court | Employment Tribunal |
| Citation | 1404973/2019 and 1404718/2020 |
| Subject Matter | Health & Safety |
Case Numbers: 1404973/2019 & 1404718/2020
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EMPLOYMENT TRIBUNALS
BETWEEN
Claimant Respondent
Mrs R D’Rozario AND Aldi Stores Limited
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
HELD AT Bristol by CVP ON 26 to 30 April and 4 May 2021
EMPLOYMENT JUDGE J Bax
MEMBERS Ms J Le Vaillant
Mr C Williams
Representation
For the Claimant: Mrs R D’Rozario (in person)
For the Respondent: Ms F Powell (solicitor)
RESERVED JUDGMENT
The unanimous judgment of the tribunal is that:
1. The claim of unlawful deductions from wages is dismissed upon its
withdrawal by the Claimant.
2. The claims of direct race discrimination are dismissed.
3. The Claimant suffered a detriment for making a protected disclosure
in relation to the rota for her shifts on 17 and 31 October 2019.
Otherwise, the claims that she suffered detriments are dismissed.
REASONS
1. In this case the Claimant, Mrs D’Rozario, claimed that she had been
subjected to detriments for making protected disclosures, been
discriminated against on the grounds of her race and that there had been
an unlawful deduction from wages.
Background
2. The Claimant notified ACAS of the dispute on 8 October 2019 and the
certificate was issued on 25 October 2019. The first claim was presented
on 31 October 2019. The second claim was presented on 8 September
2020.
Case Numbers: 1404973/2019 & 1404718/2020
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3. At a Preliminary Hearing on 19 March 2019, before Employment Judge Bax,
the Claimant confirmed, in relation to her first claim, that she was relying on
6 alleged protected disclosures and 5 allegations of detriment as a
consequence. She also confirmed that she was bringing a claim of direct
race discrimination and relied upon two incidents involving Mr Duffield on
20 and 21 July 2019. She also brought claims in relation to sick pay she
had not received. The claim was listed for a final hearing commencing on
16 November 2020. At a further Case Management Hearing on 10
September 2020, the final hearing was postponed and relisted in February
2021.
4. After the Claimant presented her second claim, the Respondent applied for
the claims to be consolidated. On 27 November 2020, Employment Judge
Gray conducted a Telephone Case Management Preliminary Hearing in
relation to both claims. The final hearing was postponed and relisted for 6
days. The Claimant relied on a further protected disclosure and 4 further
allegations of detriment between 23 April 2020 and potentially October
2020. The Claimant was given permission to amend her claim to include an
allegation of detriment for not paying the Claimant full sick pay for the period
4 August to 30 August 2020 and transferring the Claimant to another store
on 3 October 2020, having been notified that it would happen at the end of
July/beginning of August 2020. The amendment was granted subject to the
Respondent being able to argue that those claims were presented out of
time.
The issues and preliminary matters
5. At the start of the hearing the issues identified in the case management
orders dated 19 March and 27 November 2020 were discussed and the
Claimant confirmed that they were the issues requiring determination. It had
appeared to the Respondent that the Claimant was seeking to bring
additional claims in relation to sick pay whilst she was suspended/on special
paid leave in 2020. The Claimant confirmed that she was not bringing a
claim for unlawful deductions from wages, but was saying if she succeeded
in that claim of detriment a consequence of the detriment was a loss of pay.
It also appeared to the Respondent that the Claimant was making an
additional claim for holiday entitlement between 14 and 30 September 2020.
The Claimant clarified that she was not bringing a claim for that period and
that it referred to sick pay between 4 August and 30 August 2020 as set out
at paragraph 3.1.3 of the list of issues in Employment Judge Gray’s case
summary dated 27 November 2020.
6. The Claimant confirmed that the legal obligation she was saying had been
breached was the Food Information Regulations 2013 at articles 14 and 24.
7. The Respondent confirmed that it disputed that all the alleged disclosures
were protected. In relation to disclosures 1 to 4 identified in the Case
Case Numbers: 1404973/2019 & 1404718/2020
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management summary dated 19 March 2020, it was disputed that the
Claimant provided information or that there was reasonable belief that it
tended to show a breach of obligation or danger to health and safety or that
it was in the public interest. In relation to disclosures 5 and 6 it was denied
that there was a reasonable belief in the public interest. In relation to
disclosure 7, identified in the case management order dated 27 November
2020, it was disputed that there was a reasonable belief that it tended to
show a breach of legal obligation or a criminal offence or that it was in the
public interest.
8. The Respondent also confirmed that it would argue that the detriment
claims identified at paragraph 3.1.1 (sending the letter dated 23 April 2020)
and 3.1.4 (transferring the Claimant) of the case management summary
dated 27 November 2020 were out of time.
9. The Respondent also sought to include 4 additional pages to the bundle,
which it wanted to include due to matters raised in the Claimant’s witness
statement and had not appreciated were relevant. The Claimant said that
she doubted the authenticity of one of the pages, but was able to deal with
the documents. It appeared that the documents were potentially relevant.
On the basis that the Claimant was able to challenge the documents with
the Respondent’s witness, she was content for them to be added to the
bundle.
10. The Claimant was given permission to add an additional page to the bundle
consisting of an e-mail she had received from an Environmental Health
officer. The Claimant also sought disclosure of a report from the
Environmental Health Officer. It did not immediately appear that the report
would be relevant to the issues in the case. The Respondent confirmed that
it did not dispute the content of the e-mail sent to the Claimant and the
Claimant confirmed that she did not therefore need a copy of the report.
11. The Claimant, if successful in her claim intended to seek an award for
personal injury. There was not any medical evidence in relation to such a
claim and it was agreed that the hearing would determine liability only and
if appropriate directions would be given for remedy.
12. During cross-examination, the Claimant confirmed that she had
subsequently been paid the correct sick pay for 1 to 7 August 2019. She
also confirmed that she had been allowed to roll over the holiday between
8 and 25 August 2019, when she had been sick, into the holiday year 2020
and then into 2021. She said that there was not a financial claim in relation
to an unlawful deduction from wages and that there were only detriment
claims, for making protected disclosures, in relation to these matters. The
Claimant withdrew the claim of unlawful deduction from wages, and it was
dismissed on that basis.
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