Ms E Bar-On v London Underground Ltd and others: 2204949/2020 and others
| Jurisdiction | England & Wales |
| Judgment Date | 01 September 2023 |
| Date | 01 September 2023 |
| Court | Employment Tribunal |
| Published date | 03 October 2023 |
| Subject Matter | Disability Discrimination |
Case No:2204949/2020, 3200460/2021 and 3201880/2021
EMPLOYMENT TRIBUNALS
Claimant Respondent
v
Ms Eli Bar-On London Underground Limited(1)
Mr Darren Burrows (2)
Mr Zahir Khan (3)
Heard at: London Central Employment Tribunal (via CVP)
On: 13, 14, 15 (am only), 19-21 June 2023
22-24 June (In Chambers)
Before: EJ Webster
Ms S Campbell
Ms S Plummer
Appearances
For the Claimant: Ms Aly (Counsel)
For the Respondent: Mr Liberadzki (Counsel)
JUDGMENT
1. The Claimant’s claims for direct disability discrimination are not upheld.
2. The Claimant’s claims for indirect disability discrimination are not upheld.
3. The Claimant’s claims for victimisation pursuant to s27 Equality Act 2010 are
not upheld.
4. The Claimant’s claims for disability-related harassment are not upheld.
5. The Claimant’s claim for failure to make reasonable adjustments are not
upheld.
6. The Claimant’s claims for unauthorised deduction from wages are not upheld.
RESERVED WRITTEN REASONS
The Hearing
7. The hearing was listed for 7 days. Due to a listing error the Tribunal was not
able to sit on 15 and 16 June as the parties had originally been informed.
Case No:2204949/2020, 3200460/2021 and 3201880/2021
Unfortunately, one of the witnesses was not available during the week of 19
June. To accommodate this situation, the parties and the Tribunal agreed to sit
early on 15 June to hear his evidence. The Tribunal is grateful to all involved
for their flexibility in ensuring this was done.
8. The parties had agreed a bundle numbering 1125 pages. An additional bundle
was served by the respondent in the afternoon of the first day of the hearing
and this was agreed to by the Claimant. She was allowed to give some
additional evidence in chief regarding those documents.
9. The hearing was beset by technical difficulties throughout both on part of the
Tribunal and the parties. The Tribunal was grateful to everyone for their
patience in dealing with those issues.
10. The list of issues had been agreed in advance between the parties. For the
purposes of this Tribunal the issues have been slightly rearranged below in that
they are grouped by type of claim as opposed to when the claims were brought.
It was agreed at the outset of the hearing that the PCPs relied upon for the
purposes of the indirection discrimination claim and the failure to make
reasonable adjustments claim were not the existence of the job description but
the requirement to carry out the activities within the job description as specified
below.
11. The Tribunal heard oral evidence from the following individuals who also
provided witness statements:
a. The Claimant
b. Mr Darren Burrows (R2)
c. Mr Zahir Khan (R3)
d. Mr Brian Liddle
12. The Respondent also provided a witness statement for Ms Anne Marie
Costigan. On the first day of the hearing the Respondent filed a doctor’s note
stating that Ms Costigan had a condition that was causing her acute pain and
hearing loss. Subsequently they served a fit note stating that the witness had
an ear infection and she was not fit for work. It did not expressly cover whether
she was fit to attend the Tribunal hearing or give evidence.
13. We accept that it had been Ms Costigan’s intention to give evidence and that
she prevented from doing so due to genuine ill health. We have read her
witness statement and considered it but not given it as much weight as we
would had the Claimant been able to challenge her evidence.
14. The Claimant had prepared for the case whilst unrepresented and only
instructed Ms Aly for the purposes of this hearing. Her witness statement had
been prepared without legal assistance. This meant that it was very long,
numbering 95 pages. There was some discussion about reducing the witness
statement but this could not be agreed upon and the Tribunal endeavoured to
read the statement in its entirety though it was clear that roughly the first 1/3 of
the statement was relevant to historical matters that were background
Case No:2204949/2020, 3200460/2021 and 3201880/2021
information only. Ms Aly agreed that this was less relevant to the Claimant’s
current claims but was important background information. Respondent’s
counsel did not cross examine the Claimant in respect of the background
information due to the need to get through the relevant evidence however the
Tribunal noted that this did not mean that they accepted it as a correct.
List of Issues
15. Jurisdiction – time limits
a. First Claim- ACAS conciliation commenced on 28 April 2020 and
concluded on 28 May 2020. The claim was received on 15 August 2020.
Any complaint prior to 16 April 2020 is therefore potentially out of time
b. Third Claim - ACAS conciliation commenced on 24 February 2021 and
concluded on 11 March 2021. The claim was received on 11 April 2021.
Any complaint prior to 25 November 2020 is therefore potentially out of
time.
c. If any proven discrimination complaint is out of time, did it form part of
conduct extending over a period, such that it is in time?
d. If not, is it just and equitable to extend the time limit?
Wages claim (Claim 3)
e. Did it form part of a series of deductions ending in time?
f. Was it not reasonably practicable to bring the claim in time, and has it
been brought within such further period as was reasonable (wages
claims)?
16. Disability status
It is accepted that the Claimant was at all material times (from 11 April 2019 to 11
October 2020 for first claim and 29 January 2021 for second claim and 18
November to 16 December 2020 for third claim) a disabled person by reason of
Ehlers-Danlos syndrome, fibromyalgia, psoriatic arthritis and a compromised
immune system caused by methotrexate (medication for arthritis).
17. Direct disability discrimination – s.13 Equality Act 2010
a. Did the First Respondent treat the Claimant less favourably than they
treated or would treat others because of her disability in declining to
investigate the Claimant’s complaint of harassment and bullying dated
15 September 2019? (First Claim)
b. Did the First and/or Second Respondents treat the Claimant less
favourably than they treated or would treat others because of her
disability in the decisions to remove her from her CSA1 grade and
demote her to CSA2 grade, allegedly made and/or reiterated on the
following dates: 11 April, 1 May, 31 October, 7 November and 11
November 2019; 17 May and 11 October 2020. (First Claim)
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