Ms D Thomas v Sussex Health Care: 2300344/2019
| Jurisdiction | England & Wales |
| Judgment Date | 19 September 2021 |
| Date | 19 September 2021 |
| Citation | 2300344/2019 |
| Court | Employment Tribunal |
| Published date | 07 October 2021 |
| Subject Matter | Age Discrimination |
Case No: 2300344/2019V
1
EMPLOYMENT TRIBUNALS
JUDGMENT
BETWEEN
CLAIMANT RESPONDENT
MS D THOMAS
V SUSSEX HEALTH CARE
HELD AT: LONDON CENTRAL
ON:
29-31 MARCH, 1 & 6 APRIL 2021
EMPLOYMENT JUDGE: MR M EMERY
MEMBERS: MR KENDALL
MR BABER
REPRESENTATION:
FOR THE CLAIMANT Mr Henman (Consultant)
FOR THE RESPONDENT Mr Blitz (Counsel)
JUDGMENT
1. The claims of direct age discrimination, harassment and victimisation fail and
are dismissed.
2. The claim of unfair dismissal is well founded and succeeds.
3. The claim of wrongful dismissal is well founded and succeeds.
Case No: 2300344/2019V
2
RESERVED REASONS
The Issues
1. The claimant was employed for 18 years in the respondent’s home for the
elderly, latterly as the Activity Coordinator, until her resignation without notice
on 26 October 2018. She alleges age discrimination, harassment related to her
age, victimisation for having made a protected act, and that her resignation
amounts to an act of age discrimination / harassment. She alleges that she was
constructively unfairly dismissed, and that she is owed notice pay. The
respondent denies all allegations.
2. The claimant was permitted to amend her claim on two occasions, latterly at a
case management discussion on 29 June 2020 (pages 207.12-15); the
amended particulars of claim are at pages 207.17-27 and the amended
response at pages 207.31-32.
Time
3. Are any or all of the claims for age discrimination and / or victimisation out of
time?
4. If so, do the allegations amount to an act extending over a period of time so as
to bring the claims in time?
5. If any of the claims for age discrimination are out of time, would it be just and
equitable to extend the time limit for submitting such claims?
Constructive Unfair Dismissal
6. Did R fundamentally breach C’s contract of employment entitling her to resign?
7. The following are alleged to be (separately or cumulatively) breaches of trust
and confidence (paragraphs 48-50 Amended claim) entitling her to resign:
a. changing C’s responsibilities and reallocating her duties to another staff
member without consent or consultation
b. failure to pay a bonus
c. suspending C’s grievance
d. instead disciplining C
e. failing to deal with grievance fairly and impartially
8. Did C resign in response to that breach?
9. Did the Claimant resign without delay so as not to constitute affirmation or
acceptance of the breach of contract or otherwise affirm any breaches?
Case No: 2300344/2019V
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Wrongful dismissal
10. Did the Claimant resign or was she constructively dismissed?
11. What notice period was the Claimant entitled to?
Direct Discrimination
12. Did R treat C as follows (paragraph 51 amended Particulars of Claim)?
a. Allocating C’s duties to TJW without obtaining her consent or consulting
her;
b. Failing to pay her the bonus received by other colleagues;
c. Failing to consider her grievance impartially and fairly and in a timely
manner
d. Instead suspending the investigation whilst taking disciplinary action
against C, thereby further prejudicing the possibility of the grievance
being dealt with fairly;
e. Disciplining C and giving her a disciplinary warning without good
reason;
f. Advising C on 2 October 2018 that her working patterns would change
to include working in the evenings and over weekends;
g. Dismissing her.
13. If so, did R treat C less favourably than it treated or would treat a relevant
hypothetical comparator?
14. If so, was the less favourable treatment because of C’s age?
Harassment
15. Did R engage in unwanted conduct (paragraph 51 of the amended Particulars
of Claim)?
16. If so, was this unwanted conduct related to age for the purposes of the Equality
Act 2010?
17. If so, did the unwanted conduct have the purpose or effect of:
a. violating C 's dignity; or
b. creating an intimidating, hostile, degrading, humiliating or offensive
environment for C?
18. If so, having regard to all the circumstances of the case and the perception of
C, was it reasonable for the conduct to have that effect on her?
Victimisation
19. Was the Claimant’s grievance on 8 August 2018 a protected act?
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