Ms K Cooper v ELO Touch Solutions UK Ltd and M Bais: 3322611/2019
| Judgment Date | 02 June 2021 |
| Citation | 3322611/2019 |
| Date | 02 June 2021 |
| Published date | 10 June 2021 |
| Court | Employment Tribunal |
| Subject Matter | Race Discrimination |
Case Number: 3322611/2019 (V)
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EMPLOYMENT TRIBUNALS
Claimant Respondent
Ms K Cooper
(1) ELO Touch Solutions UK
Limited
(2) Maarten Bais
Heard at: Watford by CVP On: 22 March 2021 – 7 April 2021
(6 and 7 April 2021 in chambers)
Before: Employment Judge Manley
Members: Ms S Laurence-Doig
Mr B McSweeney
Appearances
For the Claimant: Ms S Aly, Counsel
For the Respondent: Ms C McCann, Counsel
RESERVED JUDGMENT
1. The claimant’s husband, Mr Cooper, was a disabled person and the
respondents knew of that disability at the material time.
2. The conversation in the car on 8 May 2019 was not act of harassment
related to sex, race or Mr Cooper’s disability.
3. The claimant’s dismissal was not an act of less favourable treatment
because of sex, race or Mr Cooper’s disability.
4. The claimant’s email of 9 May 2019 was not a protected act for the
purposes of the victimisation claim.
5. The claimant’s solicitor’s email of 24 May 2019 was a protected act and
the claimant did not make a false allegation of discrimination in bad faith.
Case Number: 3322611/2019 (V)
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6. The claimant was not subjected to any detrimental treatment because she
had done that protected act or the respondents believed that she might do
such a protected act.
7. The reason for the claimant’s dismissal was that she was redundant.
8. That dismissal was not unfair. Even if there had been procedural defects
such as to render the dismissal unfair, the claimant would have been fairly
dismissed by the end of May 2019.
9. The remedy hearing which was pencilled in for 14 and 15 July 2021 is
vacated.
REASONS
Introduction and Issues
1. By a claim form presented on 20 September 2019, with accompanying
particulars of claim, the claimant brought claims of unfair dismissal, race
and sex discrimination and associative disability discrimination. The
particulars of claim indicated that the claimant was bringing claims of direct
discrimination on the grounds of sex and/or race; direct (associative
discrimination) on the grounds of disability, harassment related to the
same protected characteristics, unfair dismissal and victimisation.
2. Those particulars describe the claimant as a female of ‘Indian/Asian’
descent and sets out what the claimant says could be inferences from the
treatment of four people, two of Iranian decent, one of Moroccan decent
and one of Indian/Asian descent. It was also said that the tribunal could
draw inferences from there being ‘no applicable equality and diversity
policy’. The particulars of claim include a claim that direct disability
discrimination arose from aspects of Mr Cooper’s health.
3. The claimant referred to the process for her redundancy, arguing in the
particulars of claim, that a conversation in the car on 8 May 2019 violated
her dignity and created an intimidating, hostile, degrading or offensive
environment under section 26 of the Equality Act 2010 (EQA).
4. For the victimisation claim under section 27 EQA, it was claimed that there
were two protected acts, one was an e-mail from the claimant of 9 May
2019. The other was her solicitor’s letter of appeal against the dismissal of
24 May 2019. That letter also included an assertion that the treatment was
‘tainted by her race, sex and/or the need to take compassionate leave as a
consequence of her husband’s disability’. In that letter, the redundancy
and the appeal were argued to be a sham and the particulars of alleged
breaches of EQA were provided.
5. Following the response to the employment tribunal claim from the
respondents, and an application to strike-out or make a deposit order with
respect to the discrimination allegations, the claimant provided further
particulars on 5 June 2020. Some of those included particulars of the
Case Number: 3322611/2019 (V)
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alleged disability, with others being facts and matters relied upon for the
purposes of drawing inferences. These were said to be ‘based on matters
currently known to her’.
6. Set out there were 28 matters the claimant relied upon; some of those
were arguably included in the particulars of claim as they related to the
dismissal but many of them appeared to be new allegations. They are not
allegations of additional acts of discrimination or harassment but were
referred to for the purposes of suggesting the tribunal could draw
inferences for those discrimination complaints already raised.
7. The parties agreed a final list of issues after a preliminary hearing on 7
October 2020. These appear in the bundle at page 151 – 156 and read as
follows:
Mr Cooper’s Disability
1. The Claimant relies upon her husband (“Mr Cooper”)’s Meningioma and the
associated brain tumour/lesions for the purposes of her associative disability
discrimination claim:-
i. The Respondents concede that Mr Cooper was a disabled person at the material
time (i.e. May 2019) in that:
(a) He suffered from a physical and/or mental impairment(s), namely a brain
tumour surgically removed on 20 November 2018 and/or the physiological,
cognitive and/or psychological effects caused by the tumour and/or its
removal and/or the medication taken by Mr Cooper in relation to such
tumour;
(b) Those impairment(s) had a substantial adverse effect on his ability to carry
out normal day-to-day activities; and
(c) The impairment(s) was/were such that, as at May 2019, their effects were
“likely” to be long-term, in that this “could well happen” (Boyle v SCA
Packaging).
ii. Did the Respondents know that Mr Cooper was a disabled person at the
material time?
Harassment
2. The Claimant alleges that the conversation in the car on 8 May 2019 in the manner
described at [22]-[24] ET1 constituted an act of harassment contrary to s26 EqA
2010:-
i. Is her account of the conversation well-founded?
ii. Did the incident constitute unwanted conduct?
iii.Did the incident have the purpose or effect of violating her dignity and/or
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