Ms S Bhatti v Cable New International Inc: 2204637/2018
| Jurisdiction | England & Wales |
| Judgment Date | 11 August 2023 |
| Date | 11 August 2023 |
| Citation | 2204637/2018 |
| Court | Employment Tribunal |
| Published date | 30 August 2023 |
| Subject Matter | Disability Discrimination |
Case Number: 2204637/2018
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EMPLOYMENT TRIBUNALS
Claimant Respondent
Ms SAIMA BHATTI CABLE NEWS INTERNATIONAL, INC.
Heard at: London Central (in public; by video)
On: 10, 11, 12 & 13 July 2023 and 14 July 2023 (in chambers)
Before: Employment Judge P Klimov (sitting alone)
Representation:
For the Claimant: Mr P Gorasia, of Counsel
For the Respondent: Mr P Nicholls KC, of Counsel
Reserved Judgment
1. The Tribunal has jurisdiction to consider the Claimant’s complaints of:
(i) unfair dismissal (ss.94, 98 of the Employment Rights Act 1996(“ERA”));
(ii) victimisation (s.27 of the Equality Act 2010(“EqA”));
(iii) discrimination arising from disability (s.15 EqA);
(iv) failure to make reasonable adjustments (ss. 20, 21 EqA), to the extent
arising from acts/failures to act on or after 1 March 2017;
(v) direct race discrimination (s.13 EqA) in relation to complaints of (i)
lower pay; and (ii) denial of broadcasting opportunities, both to the
extent arising from acts/failures to act on or after 1 March 2017;
(vi) direct sex discrimination (s.13 EqA) in relation to the complaint of lower
pay, to the extent arising from acts/failures to act on or after 1 March
2017;
(vii) equal pay (Chapter 3 EqA), to the extent arising from acts/failures to
act on or after 1 March 2017; and
Case Number: 2204637/2018
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(viii) holiday pay (s.13 ERA, and regulation 14 of the Working Time
Regulations 1998 (“WTR”)) with respect to the accrued but not taken
annual leave in the period from 1 March 2017 to 31 December 2017.
2. The Tribunal does not have jurisdiction to consider any other parts of the
Claimant’s claim.
Reasons
Background and issues
1. On 22 May 2018, the Claimant presented a claim in the Employment Tribunal
against the Respondent. It contained complaints of unfair dismissal, holiday
pay/unlawful deduction from wages, direct race and sex discrimination,
discrimination arising from disability, failure to make reasonable adjustments,
victimisation and equal pay.
2. On 20 September 2018, the Respondent entered a defence contesting the
Tribunal’s jurisdiction to consider the Claimant’s complaints (“the Jurisdiction
Issue”). The Respondent did not present a substantive response to the
Claimant’s complaints pending determination of the Jurisdiction Issue.
3. In parallel to this claim in the Employment Tribunal, the Claimant also brought
a claim against the Respondent in the High Court. On 31 October 2018, the
Claimant’s claim in the Employment Tribunal was stayed, pending
determination of the High Court proceedings between the parties. These were
settled in March 2020.
4. On 22 November 2022, a preliminary hearing for case management purposes
was held, at which this hearing was listed to determine the Jurisdiction Issue.
5. The Claimant was represented at the hearing by Mr Gorasia and the
Respondent by Mr Nicholls KC. I am grateful to both Counsel for their cogent
and thorough submissions and other assistance to the Tribunal.
6. There were two witnesses for the Claimant: the Claimant and Mr A David, and
two witnesses for the Respondent: Ms L M Yee and Mr B Rozier. The
Claimant also presented a witness statement of Mr K Penhaul. However, Mr
Penhaul lives in Spain and was unable to travel to this country to give his
evidence. Permission to take evidence from abroad was not received in time
for the hearing. I accepted Mr Penhaul’s witness statement (the Respondent
not having opposed it being submitted in evidence). However, recognising
that Mr Penhaul’s evidence had not been tested in cross-examination, I gave
much less weight to his evidence than to those of other witnesses.
Case Number: 2204637/2018
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Essentially, I accepted Mr Penhaul’s evidence in paragraphs 4 and 5 of his
witness statement as corroborating the evidence of the Claimant and Mr
David that the Claimant was often in the London Bureau when she happened
to be in London. I disregarded his other evidence. The Claimant presented a
supplemental witness statement responding to various points made by the
Respondent’s witnesses in their witness statements. Mr Nicholls confirmed
that the Respondent did not object to the Claimant’s supplemental statement
being admitted in evidence. I admitted the Claimant’s supplemental statement
in evidence.
7. I was referred to various documents in the 719-page bundle of documents
introduced by the parties in evidence. References in this judgment to the
relevant pages in the bundle are given in the format [p.xxx]. Each side
prepared a cast list and a chronology, and each submitted an opening
skeleton argument and closing submissions. There was also an agreed list of
issues. Both sides submitted their respective bundles of authorities. There
was some overlap between the authorities bundles. I refer to the relevant
authorities when dealing with the issues before me.
8. At the start of the hearing, I discussed with the parties the order, in which I
should consider the Jurisdiction Issue. It appeared to me that the first
question I needed to answer was whether the Claimant had any rights under
the Employment Rights Act 1996(“the ERA”), the Equality Act 2010(“the
EqA”) and the Working Time Regulations 1998 (“the WTR”) – (together “the
Acts”) to bring her complaints. In other words, I had first to determine
whether, on the facts of this case, the Claimant’s case fell within the “territorial
reach” of the Acts. Throughout this judgment, I will refer to this as “the
Territorial Reach Question”.
9. If the answer to this question was no, the matter would end there. If on the
facts the Claimant’s case did not fall within the territorial reach of the Acts, she
would naturally not enjoy their protection, nor have any enforceable rights or
remedies under the Acts. Accordingly, the question of the proper forum, in
which she should bring a complaint about the alleged violations of such non-
existent rights would be rendered otiose.
10. If, on the other hand, I were to determine that the Claimant’s case is within the
territorial reach of the Acts, the next question would be whether the Tribunal
was the correct forum to adjudicate on her claim, notwithstanding the fact that
the Respondent is domiciled in the United States. Throughout this judgment, I
will refer to this as “the International Jurisdiction Question”.
11. Whilst it is possible to approach the matter in the reverse order, and that was
how both parties presented their opening submissions, I find that it is more
logical to first decide on the existence or otherwise of a substantive right(s),
and then proceed to deal with the question whether an employment tribunal
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