Ms J Smith v Maryland Care Home Ltd (in voluntary liquidation) and others: 2402352/2021
| Jurisdiction | England & Wales |
| Judgment Date | 01 March 2023 |
| Citation | 2402352/2021 |
| Date | 01 March 2023 |
| Court | Employment Tribunal |
| Published date | 27 September 2022 |
| Subject Matter | Disability Discrimination |
Case Number: 2402352/2021
RESERVED
1
EMPLOYMENT TRIBUNALS
Claimant:
Ms J Smith
Respondents:
1. Maryland Care Home Limited (in voluntary liquidation)
2. Suraya Bacon
3. Kelvin Bacon
4. Savoy Care Home Limited
HELD AT:
Liverpool (by in person hearing
and CVP)
ON:
18, 19, 20 & 21 July
2022 & 9 August and
2 September 2022 (in
chambers)
BEFORE:
Members:
Employment Judge Shotter
Ms C Gallagher
Ms Ross-Sercombe
REPRESENTATION:
Claimant:
Respondents 1 & 4:
Respondent 2:
Respondent 3:
In person
Kelvin Bacon
In person
In person
RESERVED JUDGMENT
The unanimous judgment of the Tribunal is that:
1. The first and fourth respondent failed to consult with the claimant and the complaint
brought under regulation 15(1) of the Transfer of Undertakings (Protection of
Employment) Regulations 2006/246 is well-founded and adjourned to a remedy
hearing. The parties will be advised of the date in due course.
2. The claimant was not victimised and her claim of victimisation brought under section
26 of the Equality Act 2010 is dismissed against the respondents. .
Case Number: 2402352/2021
RESERVED
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3. The claimant’s claim of disability discrimination brought in relation to allegation 2.2.1,
and 2.2.2 were not presented to the Tribunal before the end of the period of 3 months
beginning when the act complained of was done (or is treated as done), the
complaints are out of time and in all the circumstances of the case it was not just and
equitable to extend time. The Tribunal does not have the jurisdiction to consider the
complains which are dismissed.
4. The claimant was not treated less favourably because of something arising in
consequence of her disability and her claims of discrimination arising from disability
brought under section 15 of the Equality Act 2020 fail and are dismissed.
5. The second and/or third respondent did not harass the claimant and the claimant’s
claim of harassment brought under section 26 of the Equality Act 2010 fails and is
dismissed.
REASONS
Preamble
The hearing
1. This has been an in-person hearing. The in chambers hearing on 9 August 2022 was
held partly in person and party by CVP due to a member self-isolating with Covid19. The
short in chambers hearing held on the 2 September 2022 was by CVP.
2. The documents that the Tribunal was referred to are in a bundle of 321 pages together
with additional documents produced by both parties marked C1 – C10 and R1 to R3, the
contents of which I have referred to where relevant below.
Witnesses
3. The Tribunal was provided with a bundle of witness statements consisting of written
statements prepared by the claimant signed and dated 15 June 2022. Giving evidence on
her behalf, we heard from Paula Laybourne, the claimant’s “close friend,” whose statement
was unsigned and undated, Soniel Smith, the claimant’s son, whose statement was signed
but not dated, Mubeen Willoughby, manager of Dapa coffee shop, whose statement was
signed but not dated, Summer Smith, the claimant’s daughter, whose statement was signed
but not dated and Colette Riley, an employee of the fourth respondent, whose statement
was unsigned and undated.
4. On behalf of the respondent the Tribunal had before it written statements produced
by Carol Allcut, pharmacist, signed and dated 23 January 2022, Dawn Ashcroft, carer and
employee of the fourth respondent, signed and dated 24 January 2022, Carol Major, carer
and employee of the fourth respondent, 2 statements signed and dated 10 January 2022
and 15 June 2022, India Bacon, daughter of the second and third respondent, signed and
dated 15 January 2022, Darcy Bacon, daughter of the second and third respondent signed
and dated 15 January 2022, Gilliam Louse Morris, carer employed by the fourth respondent,
3 statements signed and dated 23 January 2022, 15 June 2022 and 18 July 2022, Chloe
Anne Fisk, senior carer employed by the fourth respondent, 2 statements signed and dated
23 January 2022 and 15 June 2022, Kate Chover Leyland, carer employed by the fourth
Case Number: 2402352/2021
RESERVED
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respondent, signed and dated 23 January 2022, Nely Chover Leyland, carer employed by
fourth respondent, signed and dated 23 January 2022, D Aspinall, previous employee of first
respondent, signed and undated, Jonathan Jason Westaway, production manager at Ayrton
Saunders Limited, signed and dated 15 June 2022 together with 2 attachments, Joseph
Kelly, supply chain manager at Ayrton Saunders Limited, signed and dated 15 June 2022,
Pamela McGivern, carer employed by the fourth respondent, signed and dated 18 July 2022,
and Hilary Yearsley, senior carer, signed and dated 18 July 2022.
5. No witness statements were filed by the second and third respondent who
misunderstood the case management orders and did not appreciate they were required to
produce witness statements. With the agreement of the parties the position was resolved by
the second and third respondent adopting pleadings (see below)..
6. On behalf of the claimant the Tribunal heard oral evidence under oath from the
claimant, Paula Laybourne, Samuel Anthony Robert Smith, Mubeen Willoughby, Summer
Marie Hope Smith, and Colette Riley.
7. On behalf of the respondents the Tribunal heard oral evidence under oath from the
second and third respondent, Gilliam Morris, Chloe Fisk, India Bacon, Darcy Bacon,
Jonathan Westaway and Joseph Kelly.
8. The claimant was not found to be a credible witness whose evidence could be relied
upon, and on balance the Tribunal preferred the evidence given by the second and third
respondent. The conflicts in the evidence and how the Tribunal resolved them have been
explored below.
9. The Tribunal did not hear oral evidence from Carol Allcut, whose statement had no
relevant evidence, the respondent agreed that this was the case and no weight was given to
it.
10. Dawn Ashcroft, who did not give oral evidence, confirmed in her written statement
she was suffering from depression and taking sertraline having suffered from mental health
issues for around 18 years which she disclosed to the second respondent and found her to
be supportive and caring which included changing her shift pattern. The claimant did not
dispute that Dawn Ashcroft suffered with depression, her issue was that sertraline had been
referenced in the statement, which according to the claimant, must point to the second and/or
third respondent having breached confidentiality by informing Dawn Ashcroft that the
claimant also had depression and prescribed the same medication. The claimant had no
basis for reaching such an assumption, and the Tribunal on balance accepted Dawn Ashcroft
had not disclosed her medication to prove it was the same as that prescribed to the claimant,
preferring the second and third respondent’s evidence that the claimant’s personal
circumstances had not been disclosed which it found credible given there was no reference
to the claimant whatsoever in the statement and setline is a commonly prescribed drug for
depression. The claimant did not put forward a strong argument as to why the information
provided by Carol Allcut could not be relied upon, and the Tribunal took the view there was
no reason to disbelieve the second and third respondent’s evidence that it supported Dawn
Ashcroft in the knowledge she had mental health issues.
11. Carol Major in her first witness statement referred to various medical conditions that
affected her employment including severe anxiety and mental health problems before and
when she was absent on ill-health grounds from July 2020 to January 2021. Carol Major
described taking sertraline, and when she returned to work found the second and third
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