Mrs S Smith v Karen Cullen and Rhonda Reid T/a Craigend Out of School Care: 4123823/2018
| Judgment Date | 20 June 2019 |
| Subject Matter | Disability Discrimination |
| Date | 20 June 2019 |
| Citation | 4123823/2018 |
| Published date | 29 May 2020 |
| Court | Employment Tribunal |
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4123823/2018
5 Held in Glasgow on 28, 29 and 30 May 2019
Employment Judge C McManus
Tribunal Member EA Farrell
Tribunal Member E Borowski
10
Mrs S Smith Claimant
Represented by
Mr D McCusker
Solicitor
15
Karen Cullen and Rhonda Reid t/a Craigend Out of School Care
Respondent Represented
by Mr L Anderson
20 Solicitor
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
On the unanimous decision of the Tribunal, the judgment of the Tribunal is that:-
• The claimant’s claim of disability discrimination under section 19 of the
Equality Act 2010 is unsuccessful and is dismissed.
25 • The claimant’s claim of disability discrimination under section 26 of the Equality Act
2010 is unsuccessful and is dismissed.
• The claimant’s claim of disability discrimination under section 13 of the
Equality Act 2010 is withdrawn and is dismissed.
• The claimant’s claim of in respect of unpaid wages is withdrawn and is
30 dismissed
REASONS
4123823/2018 Page 2
Introduction
E.T. Z4 (WR)
1. This is a claim of disability discrimination. The claimant continues to be employed
by the respondent. The claimant’s representative confirmed in preliminary discussions
at the commencement of the Hearing on 28 May that the only statutory provisions relied
upon by the claimant are section 19 and 5 section 26 of the Equality Act 2010.
Background
2. The ET1 claim form was submitted on behalf of the claimant against Craigend Out
of School Care on 21 December 2018. Claims were made for disability
discrimination, arrears of pay and other payments. The paper apart to the
10 ET1 specified the particular statutory provisions which were then being relied upon in
respect of the disability discrimination claim, being the Equality Act 2010 s13 (direct
discrimination), s19 (indirect discrimination) and s26 (harassment). The ET3 response
was submitted on behalf of the respondent on 31 January 2019. The respondent denied
that the events relied upon by 15 the claimant in June 2018 took place, denied any
discrimination and raised an issue of time bar. Agenda forms were completed by both
parties. A Preliminary Hearing in this case took place before EJ F Eccles on 7 March
2019, with issues discussed as set out in the PH note of that hearing, dated
14 March 2019. Further specification was sought of the claimant’s claims, to
20 be provided by 29 March. No Orders were issued or requested by either
party’s representative at any time. There was some response to the
specification sought, by way of emails from the claimant’s representative of 1
and 4 April 2019.
Preliminary Discussions on 28 May 2019
25 3. This Judgment sets out dismissal of all of the claims brought by the claimant in the
ET1. At the outset of proceedings, clarification was sought on the claims
pursed by the claimant. The claimant’s representative confirmed that the
claims pursued by the claimant are only disability discrimination under the
4123823/2018 Page 3
Equality Act 2010, section 19 (indirect discrimination) and section 26
30 (harassment) and the claim under section 13 is not pursued. It is on that basis
that the claim under section 13 Equality Act 2010 and claimant’s claim in
respect of unpaid wages are withdrawn and dismissed.
4. The respondent accepts that the claimant has the protected characteristic of
disability, following her diagnosis of cancer. The respondent accepts that they
had knowledge of the claimant’s disability status from May 2018, which is prior
to the dates of the events relied upon in respect of the disability discrimination
5 claims brought.
5. Following discussions before the Tribunal at the outset of proceedings in an
attempt to identify the issues for determination by the Tribunal, some time was
given for the claimant’s representative to consider what PCP(s) was / were
being relied upon by the claimant, and what disadvantage was said to have
10 suffered by the claimant as a result of the application of that / those PCP(s),
and for the respondent’s representative to consider their position in respect of
whether or not they accepted that any PCP relied upon by the claimant was
in place, and their position on any legitimate aim in respect of such PCP.
There were short adjournments on the morning of 28 May for the purposes of
15 both representatives’ consideration of these points, and for their agreement on the
issues for determination by this Tribunal.
6. In respect of the claim for disability discrimination under section 26 of the Equality
Act (harassment), it was confirmed in preliminary discussions that the claimant relies only
upon a discussion between herself and Karen Cullen 20 on or around 27 or 28 June 2018,
as set out at .2 of the claimant’s further and better particulars included within the joint
inventory of productions (at page 51), as follows:-
“In or around the 27 or 28 June 2018. Ms Cullen suggested that the
claimant resign from her employment because of the claimant’s cancer
25 diagnosis. Ms Cullen offered to pay the claimant some money for her
resignation.”
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