Ms A Nicholl v WM Morrison Supermarkets Ltd: 4102908/2022
| Jurisdiction | England & Wales |
| Judgment Date | 12 December 2022 |
| Date | 12 December 2022 |
| Published date | 22 December 2022 |
| Court | Employment Tribunal |
| Citation | 4102908/2022 |
| Subject Matter | Breach of Contract |
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4102908/2022
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Held in Glasgow on 28-30 November 2022
Employment Judge L Murphy
Tribunal Member J Lindsay
Tribunal Member S Singh
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Ms A Nicholl Claimant
In Person
Wm Morrison Supermarkets Ltd Respondent
Represented by:
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Mr J Davies -
Counsel
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
The unanimous judgment of the Tribunal is that:
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(i) It is just and equitable to extend the time limit in which to lodge the claim
of victimisation contrary to section 27 of the Equality Act 2010 (EA).
(ii) The claimant’s victimisation is not well founded and is dismissed.
(iii) The claimant’s complaint of constructive unfair dismissal contrary to
section 94 of the Employment Rights Act 1996 is not well founded and is
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dismissed.
(iv) Having no entitlement to damages for any breach of contract by the
respondent, the claimant’s complaint of breach of contract (wrongful
constructive dismissal) is dismissed.
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REASONS
4102908/2022 Page 2
Introduction
1. The claimant lodged an ET1 on 26 May 2022 in which she identified complaints
of breach of contract in terms (notice pay) and constructive unfair dismissal.
When she lodged the ET1, she was unrepresented. In her original ET1 she
complained about requests to change her hours of work given personal caring
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commitments she had including for her brother, who, she said, she took to
disability clubs.
2. On 28 July 2022, the claimant sent further particulars of her claim (“FBP1). She
was still representing herself at that time. FBP1 identified complaints of “unfair
constructive dismissal and victimisation”. The respondent sent amended
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Grounds of Resistance on 9 August 2022 (the Amended GOR1”).
3. On 16 August 2022, the respondent’s representative emailed the Tribunal and
raised the fact that the ET1 did not include a claim of victimisation under section
27 of EA. On 21 August 2022, the claimant sent a document headed “leave to
amend ET1 claims request”, dated 19 August ’21. On 29 August 2022 a
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preliminary hearing (“PH”) on case management took place. The claimant was
represented by Ms Smith, a CAB advisor. Further to the discussion at the
hearing, EJ Hoey ordered the claimant by 13 September 2022 to provide
specification of the claims of harassment and victimisation which her
representative had, at the PH, advised she wished to progress. The
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respondent was ordered to provide any objection by 27 September 2022 and
to lodge its formal response to the further specification.
4. On 13 September, Ms Smith, by now on record as representing the claimant,
submitted a document called “Summary of Issues and Claims” (“FBP2”). FBP2
identified a complaint of victimisation contrary to section 27 EA and specified
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the protected acts relied upon and detriments asserted. Three of the detriments
were alleged to have taken place in February 2022 and were prima facie out
of time, even based upon the date of lodging of the original ET1. FBP2
confirmed that the claimant did not seek to progress a complaint of
harassment. In response, the respondent lodged a further amendment to its
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4102908/2022 Page 3
GOR (“Amended GOR 2”) on 27 September 2022. No objection to the
claimant’s application to amend was intimated as directed by EJ Hoey.
5. The claimant’s amendment application was extant when the final hearing
began on 28 November 2022. During the preliminaries, in the absence of any
objection from the respondent, we granted the claimant leave to amend in
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terms of FBP2 and accepted the respondent’s Amended GOR2. It was
explained that amendment was permitted subject to the issue of time bar which
had not been determined and would be reserved for determination after
hearing all evidence and submissions.
6. EJ Hoey sought, in his CMO, to list the issues for determination at the final
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hearing, insofar as he was able, in circumstances where the final iteration of
the claimant’s complaints and the respondent’s grounds of resistance were not
yet available. That list required to be updated in light of the clarifications
provided in FBP1 and FBP2 and the consequential amendments in Amended
GOR2.
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7. The updated issues for the Tribunal to determine so far as liability is concerned
are as follows:
Victimisation
(i) The claimant accepts that the victimisation complaint about
detriments alleged to take place on 11, 18 and 21 February 2022
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complaint was not lodged within the normal time limit in s.123 of EA
which, allowing for the EC extension, respectively expired on 12
May, 19 May and 22 May 2022. If the clock stops not on the date
the ET1 was lodged but on the date of the initial or subsequent
amendment application, then all victimisation acts complained of are
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prima facie out of time. The Tribunal will require to decide:
1. Was the claim made within a further period that the
Tribunal thinks is just and equitable? The Tribunal will
decide:
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