Ms K David-Ogundele v Alternative Futures Group Ltd and others: 2401723/2019
| Jurisdiction | England & Wales |
| Judgment Date | 13 May 2022 |
| Date | 13 May 2022 |
| Published date | 16 June 2021 |
| Court | Employment Tribunal |
| Citation | 2401723/2019 |
| Subject Matter | Race Discrimination |
RESERVED
Case Number: 2401723/2019
1
EMPLOYMENT TRIBUNALS
Claimant:
Ms K David-Ogundele
Respondent 1:
Respondent 2:
Respondent 3:
Respondent 4:
Alternative Futures Group Limited
Lilian Dim
Aimee Fox
Sandra Murray
HELD AT:
Liverpool (by CVP)
ON:
15, 16, 17,18, 19, 22
March 2021 & 26
March 2021 (in
chambers)
BEFORE:
Members:
Employment Judge Shotter
Mrs H Fletcher
Mr J Ostrowski
REPRESENTATION:
Claimant:
Respondent 1, 2, 3 & 4:
Mr HB O’Odusanya, solicitor
Ms S Johnson, counsel
RESERVED JUDGMENT
The unanimous judgment of the Tribunal is that:
1. The claimant was not treated less favourably because of her protected characteristic
of race by the first, second respondent, third and fourth respondent, and her claims
of direct discrimination brought under Section 13 of the Equality Act 2010 are
dismissed against all respondents.
2. The first, second, third and fourth respondent did not engage in unwanted conduct
related to the protected characteristic of race and the claimant’s claim of harassment
brought under section 26 of the Equality Act 2010 is dismissed against all
respondents.
RESERVED
Case Number: 2401723/2019
2
3. The claimant was not subjected to a detriment for raising a protected act and her claim
for victimisation brought under section 27 of the Equality Act is dismissed against all
respondents.
4. The first respondent did not unfairly dismiss the claimant and her claim for unfair
dismissal is not well-founded and is dismissed against the first respondent.
5. The race discrimination complaint relating to the WhatsApp group Christmas 2017
was 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 complaint is out of
time and in all the circumstances of the case, it is not just and equitable to extend the
time limits. The Tribunal has no jurisdiction to consider the complaint, which is
dismissed.
6. The race discrimination complaints relating to the disciplinary process starting from
the reports made by the second, third and fourth respondent on the 16 June 2018,
18 June 2018 and 2 July 2018 through to dismissal on 28 September 2018 formed
part of a continuing act, and in the alternative, in all the circumstances of the case it
was just and equitable to extend the time limit and the Tribunal has the jurisdiction to
consider the complaints.
REASONS
Preamble
The hearing
1. This has been a remote hearing by video which has been consented to by the parties.
The form of remote hearing was Kinley CVP fully remote. A face to face hearing was not
held because it was not practicable and all issues could be determined in a remote hearing.
2. The documents that the Tribunal was referred to are in a main bundle of 584 pages,
together with number of documents submitted in evidence during the final hearing, the
claimant’s witness statement signed and dated 10 December 2019, witness statement of
Blesson Oni signed and dated 10 November 2019, Alvine Andres, unsigned and undated,
Amy Fox signed and dated 5 February 2010, Andrea Roach signed and dated 9 December
2019, Jayne Prichard signed and dated 30 January 2010, Ngozi Lilian Dim signed and dated
21 November 2019, Sandra Murray signed and dated 4 February 2020 and Shaunna
Thompson signed and dated 29 January 2020. In addition, the Tribunal has considered the
written submission made on behalf of the parties, for which it is grateful and the case law to
which it was referred to.
3. At the outset of the hearing an issue arose concerning Amy Fox, who is adversely
affected by depression and anxiety, a condition she has suffered from a young age as
recorded by the Tribunal in its findings of facts below. Ms Johnson made an application for
special measures, in other words reasonable adjustments supported by medical report. The
measure requested was simply that the claimant switched off her camera when Amy Fox
was giving her oral evidence. Mr Oumuamua objected to the application.
RESERVED
Case Number: 2401723/2019
3
4. The Tribunal heard oral submissions from both representatives which it took into
account, after giving Mr Oumuamua sufficient time to take instructions and referring the
parties to the updated Equal Treatment Benchbook, requiring cogent argument why the
adjustment could not be made and any adverse effect on the claimant’s final hearing.
5. The medical report dated 8 March 2021 from Dr Catherine Harris confirmed Amy Fox
had suffered from anxiety and depression since the age of fourteen with “symptoms
becoming increasingly worse over the last 2 years. You feel anxious on a daily basis with a
feeling of panic and a racing heart. You have fluctuating moods and you are currently taking
medication to deal with these symptoms.”
6. Ms Johnson submitted Amy Fox experienced feelings of fear and intimidation by the
claimant and would have difficulties giving evidence when the claimant’s camera was
switched on, and there would be an adverse effect on her ability to take part in this trial. Ms
Johnson argued the claimant’s Article 6 rights would not be affected, as the claimant could
see and hear all of Amy Fox’s evidence. Mr Oumuamua objected to the application on the
basis that he did not accept Amy Fox was intimidated by the claimant. He questioned
whether Amy Fox got anxious every time she saw a “black woman” in an attempt to divert
the Tribunal from the key issue which was access to justice as there was no suggestion by
Amy Fox that she was nervous in the presence of black women per se as opposed to a
specific individual i.e. the claimant.
7. Mr Oumuamua referred the Tribunal to case law which he did not produce, confirming
there was no need for case law to be looked at as it dealt with just one issue, namely Amy
Fox’s medical condition, submitting the Tribunal should examine Amy Fox to discover the
alleged causes of her disability and ascertain whether they are genuine. The Tribunal took
the view that examining the cause of what appeared to be a long-standing medical condition
would not assist the parties and refused to do so. However, it understood the gist of Mr
Oumuamua’s objections to be the application was “a cheap scoring exercise…she wants to
milk the fact. The claimant is trying to fight for her liberty and the police are waiting.”
8. The Tribunal took into account oral submissions and ordered the claimant’s cameral
would be turned off when Amy Fox was giving oral evidence accepting she had a long-
standing medical condition and in contrast with Mr Oumuamua’s submission, it was satisfied
the medical report was sufficient for the Tribunal to make a reasonable adjustment bearing
in mind it did not impact of the claimant’s access to justice, but did impact of Aimee Fox who
is the third respondent, taking into account the provisions set out in the updated Equal
Treatment Benchbook at paragraphs 31 and 45 onwards. The Tribunal make it clear to the
parties that ordering the reasonable adjustment it is not making any findings of fact that the
claimant at any stage during the relevant period of this case, made Amy Fox fearful or
intimidated and this is an issue which can only be decided after the Tribunal has heard oral
evidence and considered the contemporaneous documentation which the Tribunal is yet to
hear and consider. In short, it is satisfied the reasonable adjustment in no way impacts upon
the evidence the Tribunal is yet to hear and the findings it will be making. Finally, at the time
when the Tribunal heard this application it indicated when giving its oral decision whether or
not the police were waiting the outcome of this case or not was irrelevant to its deliberations.
As it transpired, there was no issue with the police waiting for any outcome, and nor was the
claimant’s liberty at stake despite Mr Oumuamua’s submission to the contrary. The
application made on behalf of the claimant and the respondent’s objections took from
approximately 10.15 to 12.10 am to resolve in a case listed for 4-days when it was a matter
that could have reasonably been resolved with agreement given the fact that the Tribunal
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