A v B: 1801568/2016
| Judgment Date | 03 November 2021 |
| Subject Matter | Unfair Dismissal |
| Date | 03 November 2021 |
| Citation | 1801568/2016 |
| Published date | 10 June 2021 |
| Court | Employment Tribunal |
Case No: 1801568/2016
10.7 Judgment with reasons – rule 62
1
EMPLOYMENT TRIBUNALS
Claimant: A
Respondent: B
Heard: On: 19, 20, 21, 24, 25 & 26 July
5 October
22, 24, 27 and 28 November 2017
6, 7, 8 and 9 March 2018
12, 13 and 16 December 2019 (in
chambers)
4, 5, 6, 9, 10, 11 and 12 November 2020
23 March 2021
24, 25 and 26 March 2021 (in chambers)
Before: Employment Judge Brain
Members: Mrs M J Cairns
Mr D R Fields
Representation:
Claimant: A lay representative
Respondent: Ms K Nowell of Counsel
RESERVED JUDGMENT
The Judgment of the Employment Tribunal is that:
1. Upon the claimant’s complaints brought under the Equality Act 2010:
a. The complaint of direct sex discrimination brought under sections
13 and 39(2)(d) fails and stands dismissed.
b. The complaints referred to in paragraph 1(a) were presented to the
Employment Tribunal within the limitation period provided for by
section 123. In the alternative, it is just and equitable to extend
Case No: 1801568/2016
10.7 Judgment with reasons – rule 62
2
time to vest the Employment Tribunal with jurisdiction to consider
them.
c. The claimant’s complaint that she was subjected to harassment by
reason of unwanted conduct of a sexual nature (which complaint is
brought under sections 26(3) and 40) succeeds.
d. The claimant’s complaint in sub-paragraph (c) was brought outside
of the limitation period provided for by section 123. It is just and
equitable to extend time to vest the Tribunal with jurisdiction to
consider it.
e. The respondent’s reliance upon the statutory defence in section
109(4) fails and stands dismissed.
f. Upon the complaint referred to in sub-paragraph (c) the respondent
shall pay to the claimant the sum of £20,000 by way of injury to the
claimant’s feelings .
g. The respondent shall pay interest to the claimant upon the sum
awarded in sub paragraph (e) at the rate provided for by the
Employment Tribunal’s (Interest on Awards in Discrimination
Cases) Regulations 1996 from 15 July 2012 to 25 September 2021.
2. Upon the claimant’s complaint of unfair dismissal brought under the
Employment Rights Act 1996:
a. The respondent unfairly dismissed the claimant.
b. By way of remedy upon the unfair dismissal complaint:
Basic award
c. The respondent shall pay to the claimant the basic award
calculated in accordance with section 119. It is just and equitable
to reduce the amount of the basic award by 50% because of the
claimant’s conduct before the dismissal.
Compensatory award
d. The respondent would have fairly have dismissed the claimant by
the end of February 2018.
e. When calculating loss for the period between 14 June 2016 and
28 February 2018 the claimant shall bring into account by way of
mitigation the earnings which she received from her employment
with AAAA.
f. It is not just and equitable to reduce the compensatory award by
reason of the claimant’s conduct.
3. Upon the claimant’s complaint of wrongful dismissal:
a. The claimant’s complaint fails.
Case No: 1801568/2016
10.7 Judgment with reasons – rule 62
3
REASONS
Introduction
1 After hearing the evidence and receiving the parties’ helpful submissions
the Tribunal reserved judgment and deliberated in Chambers. We now set
out our reasons for the judgment that we have reached.
2 This is a long-running matter. The Employment Tribunal hearing was
adjourned for a period of around a year after 9 March 2018 because of the
claimant’s involvement in Crown Court proceedings which were related to
some of the issues with which were have been concerned. Delays were
also caused by illness impacting upon the claimant, the claimant’s
representative, one of the respondent’s witnesses, one of the members of
the Tribunal panel, a family member of one of the panel and the Covid-19
pandemic. The hearings in 2020 and 2021 were undertaken by CVP.
3 The case has benefited from a number of private preliminary hearings.
The first of these was held on 24 November 2016 and came before
Employment Judge Davies. The second was held on 11 January 2017
and came before the Employment Judge. There have been several after
11 January 2017 which need not concern us here.
4 Employment Judge Davies identified the issues in the case. We shall
consider these in more detail in due course. Suffice it to say at this stage
that the claimant complains of:
4.1 Unfair dismissal under the Employment Rights Act 1996.
4.2 Direct discrimination because of the protected characteristic of sex.
4.3 Harassment (by reason of unwanted conduct of a sexual nature).
4.4 Wrongful dismissal.
5 The wrongful dismissal claim is brought pursuant to the Employment
Tribunals Extension of Jurisdiction (England & Wales) Order 1994. The
complaints of direct sex discrimination and sexual harassment are brought
under the Equality Act 2010.
6 At the private preliminary hearing that came before the Employment Judge
on 11 January 2017 the Tribunal (acting pursuant to its powers under rule
50 of Schedule 1 to the Employment Tribunals (Constitution & Rules of
Procedure) Regulations 2013) made orders with a view to preventing or
restricting public disclosure of the identities of the parties to the
proceedings, the individuals referred to in paragraphs 6 and 9 of the
respondent’s amended grounds of resistance. It was also ordered that the
case be heard in private.
7 Accordingly, the respondent’s witnesses shall be referred to by letter.
The claimant and respondent shall be identified in those capacities. The
individual referred to in paragraph 6 of the amended grounds of resistance
we shall call S. The individual referred to in paragraph 9 we shall call R.
8 We shall firstly record our findings of fact. We shall then consider the
issues in the case in much more detail before going on to recite the
relevant law. We shall then record our conclusions.
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