Ms L Basiony and others v Mitie Care and Custody and Mitie Ltd: 2303791/2019 and others
| Judgment Date | 11 February 2022 |
| Citation | 2303791/2019 and others |
| Date | 11 February 2022 |
| Published date | 03 March 2022 |
| Court | Employment Tribunal |
Case No. 2303791/2019 &Others
EMPLOYMENT TRIBUNALS
Claimants: Ms L Basiony (1)
Ms H Jacob (2)
Ms K Pearce (3)
Ms B Crabbe (4)
Respondents: Mitie Care and Custody (1)
Mitie Limited (2)
Heard at: London South 31 August 2021- 2 September 2021 (Hearing)
27 October 2021 and 2 February 2022 (In
Chambers)
Before: Employment Judge Self
Mr N Shanks
Mr S Sheath
Appearances
For the Claimants: Mr O Isaacs - Counsel
For the Respondent: Mr J Crozier - Counsel
RESERVED JUDGMENT
1. The First Claimant’s claims of harassment on the grounds of sex and
victimisation against the First Respondent are dismissed upon withdrawal.
2. The Claimants’ application to amend their respective claims so as to add a
claim pursuant to section 45A of the Employment Rights Act 1996 (ERA) is
granted.
3. The section 44 ERA detriment claim is not well founded and is dismissed.
4. The section 45A ERA detriment claim is not well founded and is dismissed.
5. The Claimants do not work in an excluded sector as defined by Regulation 18
of the Working Time Regulations 1998.
Case No. 2303791/2019 &Others
6. The Respondent has not failed in their Regulation 24 obligation to allow the
Claimants to take an equivalent period of compensatory rest and that Claim is
rejected.
WRITTEN REASONS
1. The Claimants lodged claims with the Tribunal in September 2019 asserting
that they had been subjected to acts of sex discrimination (direct and / or
harassment), detriments on account of raising Health and Safety issues and
breach of the Working Time Regulations 1998 (WTR). In addition, the First
Claimant, Ms Basiony, asserted that she had been victimised.
2. Dates of each respective Claimant’s Early Conciliation and lodging of the
Claim Form is as follows:
a) Ms Basiony – ACAS EC 9 July 2019 to 9 August 2019. Claim lodged 9
September 2019;
b) Ms Crabbe – ACAS EC 5 September 2019 to 5 September 2019. Claim
lodged 9 September 2019;
c) Ms Jacob – ACAS EC 19 August 2019 to 5 September 2019. Claim lodged
26 September 2019;
d) Ms Pearce – As per Ms Jacob.
3. The Respondents lodged a Response in which they accepted that Ms
Basiony, Ms Crabbe and Ms Pearce were employees of Mitie Care and
Custody Limited and that Ms Jacob was employed by Mitie Limited. All claims
were denied.
4. The Claims came before EJ Hargrove on 18 March 2020. The allegations of
breach of WTR and Health and Safety Detriment were maintained but all
direct sex discrimination claims were withdrawn, and the harassment and the
victimisation claims were withdrawn by all Claimants save for Ms Basiony.
Those Equality Act claims were pursued to this hearing but were withdrawn
either, just before the hearing (harassment), or during the course of the
evidence being given (victimisation). For the avoidance of doubt there are no
Equality Act claims remaining for adjudication as they have all been dismissed
upon withdrawal.
5. Directions were given at the Preliminary Hearing listing this matter for four
days. Unfortunately, resources were only available for a three-day listing and
by the end of those three days all of the evidence had been heard. There
were discussions about how matters should proceed, and it was clear due to
Case No. 2303791/2019 &Others
the availability of key personnel the most prudent course was for closing
submissions to be submitted by the parties in writing and then for a further
right of reply to those submissions to be given. The parties consented to that
course. The Tribunal would then meet again for their deliberations and a
reserved Judgment sent out. Due to commitments across the Tribunal there
was a delay in the Tribunal meeting again and a further delay in writing up the
product of those discussions. During that writing up process it was considered
desirable for the Tribunal to meet again to discuss certain aspects of the
Claims further. This has caused further delay but was deemed essential.
6. Application to Amend Claim
On 27 August 2021 the Claimant made a written application to amend their
claim so as to add a claim pursuant to section 45A Employment Rights Act
(ERA) (Working Time Detriment). The application indicated that the
detriments relied upon would be the same as relied upon under the section 44
ERA Health and Safety Claims and that such a claim had been mooted as far
back as the disciplinary hearings at the end of October 2019 (640).
7. The application averred that the balance of prejudice favoured allowing the
amendment notwithstanding the lateness of it. The application was opposed
by the Respondent on the grounds that they would be prejudiced by the late
amendment, that the application had been made too late and that there would
not be enough time to hear the case if the application were permitted.
8. The application was heard prior to any evidence being given. The correct
approach to adopt when considering an application to amend was recently
considered and outlined by His Honour Judge Tayler in the EAT in the case of
Vaughan v Modality Partnership Limited (2020) UK EAT 0147/20. Within
that case the following messages were communicated, the first being that the
Tribunal has a broad discretion when considering applications to amend.
9. The key test for considering amendments has its origin in the decision of
Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 at 657BC: “In
deciding whether or not to exercise their discretion to allow an
amendment, the tribunal should in every case have regard to all the
circumstances of the case. In particular they should consider any
injustice or hardship which may be caused to any of the parties,
including those proposed to be added, if the proposed amendment were
allowed or, as the case may be, refused.”
10. In Selkent Bus Co Limited v Moore (1996) ICR 836 at 843D it was said
“Whenever the discretion to grant an amendment is invoked, the
tribunal should take into account all the circumstances and should
balance the injustice and hardship of allowing the amendment against
the injustice and hardship of refusing it.”
To continue reading
Request your trial