Mrs N Aabe v Happy Care Limited and 2 others — 2022

The tribunal found that Mrs N Aabe was an employee of Happy Care Limited during the relevant period, despite being a director and shareholder, because she was subject to the company's control, had to do the work personally, was integrated into the business, and was paid regularly for her work. It also held that the claims were in time, treating the events from 26 April 2020 to the ET1 as a course of conduct and, if necessary, extending time where it was just and equitable to do so.

On credibility, the tribunal preferred the claimant and her witnesses over the respondents. It found R2 and R3 inconsistent and evasive in parts of their evidence, and it questioned the provenance of several respondent documents because metadata was not produced. The tribunal concluded that some documents were likely created after the event in an attempt to support the respondents' case.

The tribunal accepted the claimant's account of a series of June 2020 incidents involving R2 and R3. It found that R2 made inappropriate phone calls and meeting-related advances, that R3 pressed the claimant to spend private time with R2 and called her 'stupid' and a 'bitch', and that R2 monitored her emails and undermined her status with staff. On those findings, the tribunal held that R2 and R3 sexually harassed her, and that R1 was vicariously liable. It also found direct sex discrimination in the refusal or failure to make her a signatory on the company bank mandate.

The tribunal found that the claimant made protected disclosures to the CQC, the BCC safeguarding team and the police in July 2020 about interference with her role and concerns about service-user safety. It held that the respondents knew she was in contact with external bodies and that the subsequent suspension, removal as a director, disciplinary action, dismissal, and attempts to remove her shareholding and alter her CQC registration were detriments because of those disclosures. It further found that the principal reason for her summary dismissal on 3 August 2020 was the protected disclosures, not the allegation that she had discriminated against J and her partner.

The tribunal also upheld direct religion discrimination, finding that listing the disciplinary hearing for 10pm on 3 August 2020, the last day of Eid al-Adha, was less favourable treatment of the claimant as a Muslim. The indirect religion discrimination claim was dismissed because the alleged PCP had no general application, victimisation was dismissed because the pleaded protected act was not proved, and the claimant also succeeded on breach of contract in relation to notice pay, unlawful deduction from wages, failure to provide a compliant s.1 ERA statement, and the respondents' failure to comply with the ACAS Code. The separate breach-of-contract claim about the disciplinary procedure and the holiday pay claim were withdrawn, and the matter was listed for a remedy hearing on 20 January 2023.