Ms E Ellis v St Helens and Knowsley Teaching Hospitals NHS Trust: 2414688/2019
| Judgment Date | 12 May 2021 |
| Citation | 2414688/2019 |
| Published date | 21 May 2021 |
| Court | Employment Tribunal |
| Subject Matter | Flexible Working |
Case No. 2414688/2019
Code V
1
T
EMPLOYMENT TRIBUNALS
Claimant:
Ms E Ellis
Respondent:
St Helens and Knowsley Teaching Hospitals NHS Trust
Heard at:
Manchester (by CVP)
On: 15-19 February
2021 (in chambers on 19
February 2021)
Before:
Employment Judge McDonald
Ms S Howarth
Ms A Berkeley-Hill
REPRESENTATION:
Claimant: Ms J Ferrario (Counsel)
Respondent: Mr A Williams (Counsel)
RESERVED JUDGMENT
The judgment of the Tribunal is that:
1. The claimant’s claim that she was unfairly dismissed succeeds. The dismissal
was an “ordinary” unfair dismissal in breach of s.94 of the Employment Rights
Act 1996 (“the ERA”).
2. The claimant’s claim that that dismissal was automatically unfair contrary to
s.104C fails.
3. The claimant’s claim that the respondent failed to deal with her application for
flexible working under s.80F ERA in a reasonable manner as required by
s.80G(1)(a) fails.
4. The claimant’s claim that the respondent made its decision on her application
for flexible working under s.80F ERA on incorrect facts in breach of
s.80H(1)(b) ERA fails.
5. The claimant’s claim that the respondent indirectly discriminated against her
because of sex in breach of s.19 of the Equality Act 2010 succeeds.
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6. The respondent did unreasonably fail to comply with the ACAS Code of
Practice on Disciplinary and Grievance Procedures.
REASONS
Introduction
1. By a claim form received by the Tribunal on the 19 November 2019 the
claimant claims that she was constructively dismissed and that that dismissal was
unfair either under “ordinary” unfair dismissal principles or because the reason or
principal reason for the dismissal was that she had made a request for flexible
working under section 80F of the Employment Rights Act 1996 (“ERA”). She also
claims that the respondent failed to comply with its obligations in relation to that
flexible working request, and that she was indirectly discriminated against because
of sex contrary to sections 19 and 39 of the Equality Act 2010 (“the 2010 Act”).
2. The “Code V” at the start of this Judgment indicates that this hearing was held
by remote video link using the CVP platform. All parties and the Tribunal members
attended remotely.
Preliminary Matters
3. We heard evidence from the claimant and from Angela Cunliffe (“Ms
Cunliffe”), her trade union representative from the Royal College of Nursing. For the
respondent we heard evidence from Oonagh McGugan (Ms McGugan”), the
claimant's line manager from August 2018; from Sue Redfern (“Mrs Redfern”), the
respondent’s Director of Nursing, Midwifery and Governance and Director of
Infection Prevention and Control; and from Mike Babbs (“Mr Babbs”), a matron in the
respondent’s Cardiology and Respiratory Medical Care Group who heard the
claimant's grievance in 2019. Each witness had provided a written witness
statement and was cross examined and answered questions from the Tribunal.
4. The hearing bundle consisted of pages numbered 1-444 (“the Bundle”). In
electronic pdf format it consisted of 497 pages due to the insertion of some additional
pages. At the start of the hearing we added one further document, which was an
email string between the respondent HR team and Ms Cunliffe’s office dated
between 8 and 16 August 2019. That document was inserted as pages 275a-275g
of the Bundle. References in this Judgment to page numbers are to the page
numbers appearing in the bottom right-hand corner of documents in the Bundle
rather than the page number in the pdf of the Bundle.
5. In addition to the Bundle we had a helpful chronology and cast list which were
agreed by the parties.
6. After a brief discussion with the parties we took the morning of the first day to
read the witness statements and the pages in the Bundle referred to in those
statements. We heard evidence from the claimant on the afternoon of the first day
and the morning of the second day. We then heard evidence from Ms Cunliffe on
the second day and from Ms McGugan on the afternoon of the second day and the
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morning of the third day. On the afternoon of the third day we heard evidence from
Mrs Redfern. We heard Mr Babbs’s evidence on the morning of the fourth day.
7. Both counsel provided written closing submissions. After an extended break
at lunchtime on the fourth day to allow the Tribunal to read those submissions and to
allow counsel to finalise their oral submissions we heard those oral submissions.
8. The Tribunal sat in chambers on 19 February 2021 to deliberate on its
decision. At the end of the fourth day’s hearing we told the parties that we would
email them at 12.30 p.m. on the chambers day to indicate whether we would be able
to deliver our judgment orally. The number of issues we needed to decide meant we
were not able to do so and the Tribunal emailed the parties at lunchtime on the fifth
day to confirm that it would reserve its decision. The Employment Judge apologises
for the delay in finalising these written reasons.
9. The parties had been asked to provide their dates to avoid for a remedy
hearing (should one be necessary) to be listed for one day in the period April-
October 2021. As the parties would no longer be attending the Tribunal on 19
February 2021 to hear oral judgment the parties were instead asked to provide their
dates to avoid in writing to the Tribunal by Friday 26 February 2021.
10. A remedy hearing is required and the parties will be sent a notice of hearing in
due course.
The Issues
11. The parties and the Tribunal had agreed a List of Issues at the preliminary
hearing held by Employment Judge Benson on 25 February 2020. That List of
Issues was attached to the Case Management Orders sent to the parties on 2 March
2020 (pages 49-56). It is attached as an Annex to this Judgment.
Findings of Fact
12. Before we set out our findings of fact we deal with two matters relevant to
those findings. The first is the relative credibility of the claimant and Ms McGugan
and the reliability of their evidence. The second is the status and relevance of
contemporaneous file notes made by Ms McGugan of meetings between her and the
claimant.
Credibility of witnesses and reliability of their evidence
13. There were a number of occasion in this case where the claimant and Ms
McGugan disagreed about what was said or done at various meetings and how
things were said. We set out here our general findings about their relative credibility
and the reliability of their evidence.
14. We found the claimant to be a credible witness in the sense that she sincerely
believed the truth of what she was telling us. She did at times admit that events had
taken place a long time ago and so it was difficult to remember. Ms McGugan on a
number of occasions in her cross-examination evidence suggested the claimant
“fabricated” evidence. We do not accept that she did so. However, we did not find
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