Ms S Patel v Deloitte MCS Ltd: 2208595/2022
| Jurisdiction | England & Wales |
| Judgment Date | 10 January 2024 |
| Date | 10 January 2024 |
| Citation | 2208595/2022 |
| Court | Employment Tribunal |
| Published date | 31 January 2024 |
| Subject Matter | Sex Discrimination |
Case Number: 2208595/2022
1
EMPLOYMENT TRIBUNALS
Claimant: Ms S Patel
Respondent: Deloitte MCS Limited
Heard at: London Central
On: 19, 20, 21, 24 and 25 July and 26 and
27 September 2023
Before: Employment Judge Joffe
Mr P Secher
Ms L Jones
Appearances
For the claimant: Represented herself
For the respondent: Mr J Davies, counsel
JUDGMENT
1. The claimant’s claim for constructive unfair dismissal is not upheld and is
dismissed.
2. The claimant’s claims of direct sex discrimination contrary to section 13
Equality Act 2010 are not upheld and are dismissed.
3. The claimant’s claims of direct race discrimination contrary to section 13
Equality Act 2010 are not upheld and are dismissed.
4. The claimant’s claims of harassment related to sex contrary to section 26
Equality Act 2010 are not upheld and are dismissed.
5. The claimant’s claims of harassment related to race contrary to section 26
Equality Act 2010 are not upheld and are dismissed.
Case Number: 2208595/2022
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6. The claimant’s claim for breach of an equality clause incorporated into her
contract by virtue of section 66 Equality Act 2010 is not upheld and is
dismissed.
REASONS
Claims and issues
1. Although the list of issues had previously been settled at a case management
preliminary hearing in front of Employment Judge Connolly on 20 March 2023,
the claimant wished to amend the list at the outset of the hearing. She had
failed to respond to an invitation in the case management orders to contest
the list as set out at the case management hearing. This was an oversight by
the claimant.
2. We spent some time dealing with that and other case management issues
such as issues about disclosure. There were ultimately a fairly narrow range
of points in dispute as to the content of the list of issues and the respondent
pragmatically agreed that it would not oppose amendments to the list of
issues where it had witnesses available to deal with the points.
3. The claimant had made a claim that she was directly discriminated against
due to sex in being paid less than two male comparators. As a matter of law,
this was a claim for equal pay not a direct sex discrimination claim, and the
parties did not object to the Tribunal considering it in that way.
Law on lists of issues
4. Where a list of issues is agreed, that will generally limit the issues to be
considered at a substantive hearing to those issues. The Tribunal is not
required to stick slavishly to such a list where that would impair its duty to
hear and determine the case in accordance with the law and the evidence:
Parekh v London Borough of Brent 2012 EWCA Civ 1630, CA.
5. Where deviation from the list would require documents, evidence and
argument which the parties are not prepared for, a tribunal may refuse to
allow the list to be altered: Chalmers v Mentor Graphics (UK) Ltd EAT
0151/14 and see also Scicluna v Zippy Stitch Ltd and ors 2018 EWCA Civ
1320, CA.
6. Where a case involves a litigant in person, it is good practice for a tribunal to
consider at the outset of the hearing whether a list of issues drawn up at the
case management stage properly reflects the significant issues between the
parties. If it is clear that it does not, the tribunal should consider whether an
amendment of the list is necessary in the interests of justice: Mervyn v BW
Controls Ltd 2020 ICR 1364, CA and Moustache v Chelsea and Westminster
NHS Foundation Trust 2022 EAT 204.
Case Number: 2208595/2022
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Our conclusions on the list of issues
7. We did not allow the list of issues to be amended to add issues which were
not in the claim form. An amendment to the claim form at this late stage would
prejudice the respondent, which had not prepared to deal with the matters
sought to be raised by way of amendment. A postponement of the hearing to
allow the respondent to respond would have led to very significant additional
cost and inconvenience and a waste of Tribunal resource. None of the
matters which the claimant wished to add seemed to us to be central to her
case, which was reflected in the fact that they had not been included in the list
of issues drawn up at the case management hearing. Without an amendment,
she was able to pursue the many substantive issues which we ultimately
considered. There was nothing in the materials before us which suggested
that the issues she sought to add by way of amendment enjoyed better
prospects of success than those which were in front of us on the basis of the
claim form as drafted. It seemed to us that the balance of hardship was firmly
on the side of refusing this amendment.
8. We also did not allow the list of issues to be amended to add matters which,
whilst in the claim form, would require additional witnesses who were not
available. This was a small handful of matters. Again the prejudice to the
respondent in having to deal with issues in respect of which it had no witness
or bear the costs and inconvenience of a postponement was considerable.
The claimant had had the opportunity to amend the list of issues after the
case management preliminary hearing and had not done so. The list of
issues we considered is as set out in our Conclusions.
Findings
The hearing
9. There were extensive discussions about the claimant’s requests for specific
disclosure. Ultimately some further documents were produced by the
respondent and the claimant did not continue to pursue any application for
specific disclosure.
10. We were provided with bundles of documents running to 657 pages. Various
further documents which were produced later in the hearing were placed in a
supplemental bundle running to several hundred further pages.
11. We had a witness statement from the claimant and heard oral evidence from
her. She produced a witness statement from Ms L Dittmar, an employee of
the respondent who did not attend to give evidence.
12. For the respondent we received witness statements for and heard oral
evidence from:
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