Ms A Iunes v Marks and Spencer plc: 2201980/2018
| Judgment Date | 04 January 2019 |
| Citation | 2201980/2018 |
| Published date | 11 January 2019 |
| Court | Employment Tribunal |
| Subject Matter | Age Discrimination |
Case Number: 2201980/2018
1
THE EMPLOYMENT TRIBUNAL
SITTING AT: LONDON CENTRAL
BEFORE: EMPLOYMENT JUDGE ELLIOTT
MEMBERS: MR S SOSKIN
MS J GRIFFITHS
BETWEEN: Ms A Iunes
Claimant
AND
Marks and Spencer plc
Respondent
ON: 12, 13, 14, 18, 19 and 20 December 2018
IN CHAMBERS ON: 21 December 2018 and 3 and 4 January 2019
Appearances:
For the Claimant: Mr J Coutts, lay representative
For the Respondent: Ms R Thomas, counsel
RESERVED JUDGMENT
The unanimous Judgment of the Tribunal is that:
1. The claim for wrongful dismissal for notice pay is dismissed upon
withdrawal.
2. The claims for sex discrimination, religious discrimination, age
discrimination, disability harassment and discrimination arising from
disability fail and are dismissed.
3. The claim for unfair dismissal succeeds.
4. The claim for disability discrimination for failure to make reasonable
adjustments succeeds on one issue (the third reasonable adjustment
issue).
REASONS
1. By a claim form presented on 12 April 2018 the claimant Ms Angela Iunes
brought claims which from the ET1 were difficult to discern save that it was
clear that she claimed unfair dismissal. She was ordered to state whether
Case Number: 2201980/2018
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she brought a discrimination claim, if so what type and how this was
apparent from her claim form.
2. It was clarified that the claim was for discrimination on grounds of age, sex,
disability and religion.
3. The claimant worked for the respondent’s retail store from 5 December
2010 until her dismissal on 21 November 2017. From 4 July 2016 until her
dismissal she worked as a customer assistant in the Bureau de Change in
the respondent’s Fenchurch Street store.
The procedural background
4. The case has been the subject of two preliminary hearings for case
management, both before Employment Judge Snelson. The first was on 2
August 2018 and the second on 11 October 2018. At the first preliminary
hearing the claimant was represented by a solicitor acting under the ELIPS
scheme and at the second preliminary hearing, by counsel acting under the
ELIPS scheme. The claimant has otherwise acted in person.
5. At the first hearing Judge Snelson made orders that the claimant produce a
schedule identifying all the acts and omissions relied upon for her
discrimination claims other than for direct disability discrimination. She was
also to deliver a schedule setting out full particulars of her harassment
claims and a separate schedule setting out her disability discrimination
claims.
6. Orders were also made on 2 August 2018 for the claimant to disclose
medical records and a disability impact statement so that the respondent
could say whether or not disability remained in issue.
7. On 13 September 2018 the respondent admitted that “at this point in time”,
understood to mean in September 2018, they admitted that the claimant
had a disability within the meaning of section 6 of the Equality Act. The
respondent did not admit that the claimant was disabled at all material times
within these proceedings. They did not say which condition was admitted.
8. The respondent applied for the second preliminary hearing because it could
not fully understand the case it had to meet. Respondent said that the
claimant had not fully complied with the orders made at the first preliminary
hearing. Further orders were made at the preliminary hearing on 11 October
2018 requiring the claimant to produce schedules of her harassment and
direct discrimination claims and her disability discrimination claims. The
hearing was deliberately listed on a Thursday so that the claimant could
receive assistance under the ELIPS scheme.
9. It was ordered that the schedules to be produced would stand as joint
pleadings and there was no need for further amendment. This hearing is
confined to liability only.
Case Number: 2201980/2018
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The issues
Disability
10. Was the claimant a disabled person within the meaning of section 6 of the
Equality Act 2010 at all material times, with the condition of depression
which led to auto immune disease? The respondent said at the outset of
this hearing that it admits that as at September 2018 the claimant met the
definition of disability for depression but denies this in relation to the
material times. No admission is made in respect of auto immune disease.
The respondent disputes that the claimant’s condition of depression had a
substantial adverse effect on her ability to carry out normal day to day
activities.
11. The disability claims are for disability related harassment, discrimination
arising from disability and failure to make reasonable adjustments. There
are eight allegations relied upon in the claimant’s disability discrimination
schedule. From the schedule we identified the claims as being:
Failure to make reasonable adjustments – EqA sections 20 and 21
12. Did the respondent not know and could it not reasonably have been
expected to know the material time that the claimant was a disabled
person?
13. First reasonable adjustments issue: Did the respondent apply a provision,
criterion or practice (PCP) of having a manager make a call to an employee
on sick leave every week?
14. Did such PCP put the claimant at a substantial disadvantage in relation to
a relevant matter in comparison with persons who are not disabled in that it
worsened her depression? The period during which this is alleged to have
taken place is in May, June and July 2017.
15. If so did the respondent know could reasonably have been expected to
know that the claimant was likely to be placed at such disadvantage?
16. If so, were there steps that were not taken which could have been taken by
the respondent to avoid such disadvantage, the burden of proof does not
lie on the claimant but she contends that it would have been a reasonable
adjustment to allow her to call in on her own initiative.
17. Second reasonable adjustments issue: Did the respondent apply a
provision, criterion or practice (PCP) of requiring employees to work at till
points where they had to stand for prolonged periods?
18. Did such PCP put the claimant at a substantial disadvantage in relation to
a relevant matter in comparison with persons who are not disabled in that it
was physically difficult for her because of her autoimmune disease,
diagnosed in July 2017, in that it caused pain and swelling in her legs
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