Ms E Tilli v Fresh & Wild Ltd T/a Whole Market Foods: 2204611/2019
| Jurisdiction | England & Wales |
| Judgment Date | 24 March 2022 |
| Date | 24 March 2022 |
| Citation | 2204611/2019 |
| Court | Employment Tribunal |
| Published date | 19 April 2022 |
| Subject Matter | Breach of Contract |
Case Number: 2204611/2019
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EMPLOYMENT TRIBUNALS
BETWEEN
Claimant AND Respondent
Ms E Tilli Fresh & Wild Limited (t/a Whole Market Foods)
Heard at: London Central On: 1, 2, 3, 4 and 15 March 2022
Before: Employment Judge H Stout
Tribunal Member S Aslett
Tribunal Member J Marshall
Representations
For the claimant: In person
For the respondent: Lydia Banerjee (counsel)
LIABILITY JUDGMENT
(Reissued 9 May 2022 under Rule 69 with minor corrections)
The unanimous judgment of the Tribunal is that:
a. The Claimant’s claim of constructive unfair dismissal under Part X of
the Employment Rights Act 1996 (ERA 1996) is well-founded. That
claim is upheld.
b. The Respondent contravened ss 20 and 39 of the Equality Act 2010
(EA 2010) by failing to make reasonable adjustments for the
Claimant when it scheduled her for late shifts on Monday 20 May,
Saturday 25 May, Tuesday 28 May, and Thursday 30 May 2019.
That claim is upheld in those respects, but otherwise dismissed.
c. The Respondent did not contravene EA 2010, ss 13 and 39 of the
EA 2010 by directly discriminating against the Claimant because of
her disability. That claim is dismissed.
Case Number: 2204611/2019
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d. The Respondent did not contravene EA 2010, ss 26 and 39 of the
EA 2010 by harassing the Claimant for a reason related to her
disability. That claim is dismissed.
e. The Respondent contravened ss 15 and 39 of the Equality Act 2010
(EA 2010) when it scheduled the Claimant for late shifts on Monday
20 May, Saturday 25 May, Tuesday 28 May, and Thursday 30 May
2019. That claim is upheld in those respects, but otherwise
dismissed.
f. The Respondent did not contravene EA 2010, ss 15 and 39 of the
EA 2010 by discriminating against the Claimant because of her
something arising in consequence of her disability. That claim is
dismissed.
g. The Respondent did not contravene EA 2010, ss 27 and 39 of the
EA 2010 by victimising the Claimant. That claim is dismissed.
REASONS
1. Ms E Tilli (the Claimant) was employed by Fresh & Wild Limited (the
Respondent) from 7 June 2010 until 9 June 2019 when she resigned with
immediate effect in circumstances which she contends amounted to
constructive unfair dismissal under Part X of the Employment Rights Act 1996
(ERA 1996). In these proceedings she also brings claims under the Equality
Act 2010 (EA 2010) for direct disability discrimination, failure to make
reasonable adjustments, discrimination arising from disability, harassment
and victimisation.
The type of hearing
2. This has been an in-person hearing that was open to members of the public.
Rule 50
3. On Day 4 of the hearing, on the Claimant’s application in a closed part of the
hearing, we made an order under Rule 50 in respect of the Claimant’s home
address, email address, telephone number and date of birth. This was
because a member of the public had been approaching the Claimant both in
the Tribunal room and in the waiting room, giving her cause for concern. This
had affected her to such an extent emotionally that we considered her rights
under Article 8 of the European Convention on Human Rights (ECHR) were
engaged. We also considered that her right under Article 6 of the EHCR was
engaged as the situation was also affecting her ability to continue
representing herself at the hearing as competently as she had done up to
that point. We gave due weight to the principle of open justice, but concluded
that the Claimant’s contact details added little to the public interest in open
Case Number: 2204611/2019
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justice and the balance weighed in favour of protecting the Claimant’s Article
8 and Article 6 rights.
4. The Claimant also asked us to make an anonymity order for her in respect of
the proceedings. However, balancing the same considerations as indicated
above, we concluded that in that respect the principle of open justice
outweighed the concerns raised by the Claimant. This was because in our
judgment the Claimant’s name was more important to the principle of open
justice than her contact details, she had brought the claim knowing it would
be in public and had been in a public hearing for three days before she made
an application. There was therefore an element of seeking to close the door
on a bolted horse. However, most importantly, we considered that the Rule
50 Order we made did provide the Claimant sufficient protection for her Article
6 and Article 8 rights, and should give her the confidence to continue with the
hearing without undue personal discomfort.
5. Having made the Rule 50 Order, we arranged for the contact details to be
redacted from the public copy of the bundle. We explained the Order in open
Tribunal, making clear that any member of the public who had previously
made a note of her contact details was to destroy that and not make any
further use of it. The remainder of the hearing passed without incident and
the Claimant continued to represent herself well.
The issues
6. The issues to be determined were identified in the Case Management Order
of Employment Judge J S Burns following a hearing on 12 March 2020 as
follows:-
The Claimant (Cl claims disability discrimination
C claims arthritis affecting her hips, spine and shoulders as the impairment
and claims it causes chronic pain.
C claims direct discrimination contrary to section 13 Equality Act 2010.
The claimed less favourable treatment is:
(i) the comments relied on as harassment below;
(ii) the investigation started on 11/6/2019; and
(iii) the fact that her grievance was not properly dealt with and then
dismissed
C claims failure to make reasonable adjustments contrary to section 20 and
21 EA 2010.
The reasonable adjustments which she claims should have been provided
were:
(i) assigning her on the rota to work middle shifts only on Friday
Saturday and Sundays only (which Patel had agreed to do on
8/5/2019) but which he failed to do - he assigned the Claimant to
shifts on 13/5; 14/5,15/5 20/5; 23/5; 25/5 (late shift); 28/5 (late shift);
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