Ms Nicola Docherty v Scottish Ministers: 4100805/2017
| Judgment Date | 23 February 2018 |
| Date | 23 February 2018 |
| Citation | 4100805/2017 |
| Published date | 20 February 2019 |
| Court | Employment Tribunal |
| Subject Matter | Maternity and Pregnancy Rights |
E.T Z4 (WR)
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4100805/2017 Held at Glasgow on 29 and 30 January 2018
Employment Judge Shona MacLean
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Ms Nicola Docherty Claimant
In Person
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Scottish Ministers Respondent
Represented by:
Ms E Smith
Solicitor
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JUDGMENT OF THE EMPLOYMENT TRIBUNAL
The Judgment of the Employment Tribunal is that under Section 120 of the
Equality Act 2010 the Tribunal does not have jurisdiction to hear the claimant’s
complaint of discrimination, which is dismissed.
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REASONS
Introduction
1. The claimant sent a claim form to the Tribunal’s office on 23 May 2017. She
stated that she was a contract worker in terms of Section 41 of the Equality
Act 2010 (the EqA). The claimant said she was engaged in providing
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services to the respondent for Pink Lotus Limited (Pink), a company of
which she is a director. She complained that the respondent discriminated
against her under Section 18 of the EqA when her engagement was
terminated because of her pregnancy.
2. In the response the respondent stated that around 2015 it contracted with
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Parity Professionals Limited (Parity) for Parity to supply temporary workers
to the respondent. Around August 2016 the respondent placed an order with
Parity to provide a Project Management Office (PMO) Analyst. The
respondent accepted the offer from Parity to provide a Project Management
4100805/17 Page 2
Office (PMO) Analyst by Pink. Pink utilised the claimant to fulfil the order.
The respondent denied that the engagement was terminated because of the
claimant’s protected characteristic of pregnancy.
3. At a case management preliminary hearing this preliminary hearing was
arranged to determine if the Tribunal has jurisdiction to hear the complaint in
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terms of Section 120 of the EqA.
4. The issues that the Tribunal had to determine were as follow:
a. Was the claimant employed by Pink, or any other person for the
purposes of Section 41(5) and Section 83(2)(a) of the EqA?
b. Has the claimant satisfied all the conditions required to bring a claim
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under section 41 of the EqA?
5. At the Preliminary Hearing the claimant appeared and gave evidence on her
own account. The parties each produced a set of productions to which the
Tribunal was referred.
6. In relation to the issues that had to be determined the Tribunal found that
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the following facts had been established or agreed.
Findings in Fact
7. On 11 June 2008 Pink Lotus Productions Limited was incorporated. It
changed its name to Pink Lotus Limited (Pink) on 24 April 2012.
8. The claimant is the sole director and sole shareholder of Pink. The company
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documents place no restriction on her powers as director or shareholder.
The claimant is not subordinate to Pink. There is no organ of the Pink that
exercises control over her.
9. There is no written employment contract between the claimant and Pink.
Pink has not provided the claimant with a written statement of particulars of
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employment under Section 1(1) of the Employment Rights Act 1996. There
was no written memorandum or minutes of a director’s meeting setting out
the terms of the contract between the claimant and Pink. There was no
company documentation referring to the claimant as an employee of Pink.
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