Ms F Habib v Dave Whelan Sports Ltd T/a DW Fitness First: 3200137/2017 and 3200953/2017
| Judgment Date | 19 October 2020 |
| Citation | 3200137/2017 and 3200953/2017 |
| Published date | 27 October 2020 |
| Court | Employment Tribunal |
| Subject Matter | Age Discrimination |
Case Numbers: 3200137/2017
3200953/2017
1
EMPLOYMENT TRIBUNALS
Claimant: Ms F Habib
Respondent: Dave Whelan Sports Limited T/a DW Fitness First
Heard at: East London Hearing Centre
On: 3 – 6, 10 – 13 and 17 & 18 March 2020
and in Chambers on 14 July 2020
Before: Employment Judge C Lewis
Members: Mr J Webb
Mr L O’Callaghan
Representation
Claimant: Mr C Davey (Counsel)
Respondent: Mr G Self (Counsel)
RESERVED JUDGMENT
The unanimous judgment of the Tribunal is that:-
1. The Claimant’s complaints in case number 3200137/2017 of
(i) direct discrimination because of age, sex, and religion or belief;
(ii) harassment related to age and sex;
(iii) victimisation; and
(iv) less favourable treatment as a part-time worker fail and are
dismissed.
2. The Claimant’s complaints brought in case number 3200953/2017 of
victimisation also fail and are dismissed.
Case Numbers: 3200137/2017
3200953/2017
2
REASONS FOR RESERVED DECISION
1 The Claimant brought two claims against the Respondent which have been heard
together. Of the claims arising in the first claim the complaints of direct discrimination
because of age, sex, and religion or belief, harassment related to age and sex ,
victimisation and less favourable treatment as a part-time worker fall to be determined by
this Tribunal. The claims of race discrimination and for equal pay were withdrawn by the
Claimant on 10 August 2017 and 31 October 2019 respectively. At a Preliminary Hearing
held on 10 August 2017 Employment Judge Brown found that the Claimants’ complaints
relating to events before 18 November 2014 and her complaint of direct discrimination
because of religion in relation to the acts of Claire Woolley in March 2015 were out of time
and it was not just and equitable to extend time, the Tribunal therefore does not have
jurisdiction to hear those complaints. In her second claim the Claimant brought complaints
of victimisation, relying on the issuing of her first claim as a protected act under s 27(1) of
the Equality act 2010.
List of Issues
2 At the start of the hearing the Respondent had provided copies of the list of issues
that had been agreed following a Preliminary Hearing before Employment Judge Jones.
However, the Claimant disputed this was the agreed version and wished to rely on
another version of the list of issues: the version Ms Habib wished to rely on did not have
any numbering and included some claims that had been withdrawn before Employment
Judge Jones but in other respects the issues the issues were set out using identical
wording. Mr Self for the Respondent explained that the list of issues that he had prepared
had been based upon the issues as drafted by the Claimant, Ms Habib having indicated
she was only prepared to agree to it if it was worded as she had expressed - the wording
used in the List of Issues was therefore Claimant’s. W e compared the two Lists of Issues
and were satisfied that where the issues were still live (i.e had not been withdrawn by the
Claimant or dismissed) the wording used in the version prepared by the Respondent was
identical to that in the List presented by the Claimant. The difference between the two
versions being that some issues were referred to in the Claimant’s which had clearly been
withdrawn, including her equal pay claim.
3 The Tribunal referred to Mr Self’s version of the List of Issues: this contained
sequential paragraph numbers and did not include issues in respect of the claims that had
been dismissed before this final hearing.
4 The List contained 49 issues relating to her first claim (numbered 1-49) and 9
issues related to her second claim (numbered 50 to 57). The allegation contained in issue
16 was withdrawn as it pre-dated the protected acts; the allegations set out in issues 18,
34, 39 and 48 were all withdrawn by Claimant’s Counsel at the end of Mr Lusandisa’s
evidence. The allegation of direct discrimination because of religion or belief in respect of
the appeal process contained in issue 35 was also withdrawn during the course of the
hearing. The allegation at issue 56 that Mr Sumner victimised the Claimant in his handling
of the matters alleged at paragraph 8 of the second ET1 was not put to Mr Sumner and
was withdrawn at the end of his evidence on day 9 of the hearing.
Case Numbers: 3200137/2017
3200953/2017
3
5 Rather than list each of the 57 issues here and again when each issues is
addressed in the body of the decision below, the description of the issue and the claims it
gives rise to have been set out below as headings above the findings relevant to that
issue.
Case management and timetabling
Bundles
6 The Respondent had prepared a bundle contained in two lever arch files, which
were the documents to be referred to at the hearing. The Claimant was not happy with
the contents of those bundles and her Counsel indicated that she had brought with her
copies of further documents, which ran to five lever arch files, which she had photocopied
to provide copies for the Tribunal and the Respondent. The Employment Judge indicated
that the Tribunal would not be looking at two competing sets of bundles. The bundle
prepared by the Respondent had been prepared from an agreed disclosure list.
7 Mr Davey told the Tribunal that he had been instructed the week prior to the
commencement of the hearing and had not yet had time to go through all of the pages in
the Claimant’s bundles so was unable to say which were relevant but there appeared to
be large amounts of duplication. The Tribunal indicated that we would be working from
the Respondent’s bundle but that if there were particular pages that were not in the bundle
that the Claimant wished to refer to in her evidence then she could do so if the Tribunal
were satisfied they were relevant. The Claimant stated that she needed to have each
email in its full email trail in order to be able to orientate herself in the document. The
Tribunal indicated that the Claimant could be taken to the email and given its context if
necessary and if she was unable to understand the email then she would need to let the
Tribunal know. The Claimant had also included in her bundles documents which she said
were necessary to rebut the Respondent’s assertion that she was not up to her job. The
Employment Judge pointed out that this had not been suggested by the Respondent that
she was not up to her job and Mr Self confirmed that it was not any part of the
Respondent’s case. When asked, the Claimant indicated the documents related to 2014.
8 The Claimant had provided a witness statement which did not contain any detail in
respect of most of the allegations. She was allowed to put in a further statement which
was drafted with the assistance of Counsel. Mr Davey requested, and was given, more
time to take instructions and in the event the evidence did not get underway until the
morning of day 3 when the Claimant was called to give evidence.
9 Before hearing the evidence the Tribunal went through the list of issues with the
parties, discussed housekeeping matters and heard the Claimant’s application to have Ms
O’Reilly act as an intermediary.
The Claimant’s supporter/ assistance provided
10 The Claimant attended with a supporter, Ms R O’Reilly, who had been providing
some assistance to the Claimant in preparing herself for the hearing prior to the instruction
of Mr Davey. Ms O’Reilly informed the Tribunal through Mr Davey that she was registered
as an appropriate adult and attended court and other legal proceedings in that capacity
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