Case 1601782/2019 · Employment Tribunal
XY v Ludlow Street Healthcare Group — 2022
- Case reference
- 1601782/2019
- Decision date
- 27 May 2022
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Brace Non
- Venue
- Cardiff and
- Panel members
- Mrs A Fine, Mr M Pearson
Parties
2 namedClaimant
XY
Respondent
Key findings
Tribunal's reasoningXY worked for Ludlow Street Healthcare Limited as a support worker from June 2016 until dismissal in July 2019 after disciplinary proceedings arising from an incident on 29 May 2019. The tribunal accepted that she was a disabled person by reason of HIV, and that she was black African, but it found that management did not know of her HIV status until the appeal hearing in July 2019.
The disability harassment allegation, based on an assertion that staff told agency staff to be mindful of the claimant because she was sick, was not proved. The direct disability discrimination claim also failed: the tribunal found that the 2018 investigation and final written warning, the 2019 disciplinary hearing and the dismissal were all driven by conduct findings, not by disability, and that the treatment was not less favourable treatment because of HIV.
The tribunal found it more likely than not that Enias Chawana made the alleged sexual comment on 5 February 2019 and that David Robinson made the race-related comment on or around 5 February 2019. However, the sexual harassment claim and the race harassment and direct race discrimination claims were held to be out of time and time was not extended; in any event, the tribunal was not satisfied that the statutory tests for harassment or direct discrimination were made out on the evidence.
On unfair dismissal, the tribunal accepted that the respondent had a potentially fair reason of misconduct and that the investigation, disciplinary hearing and appeal were reasonable. It found that the claimant had admitted using rude and abusive language towards Enias Chawana in front of a service user, had already been on a final written warning, and that dismissal fell within the range of reasonable responses. All claims were dismissed and no remedy was awarded.
Claims and outcomes
6 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Harassment | The allegation that staff told agency staff to be mindful of the claimant because she was sick, on or around August 2018 and thereafter, was not proved. The tribunal found no facts from which disability-related harassment could be inferred. | Dismissed | Disability | — |
| Disability discrimination | The tribunal found that the October 2018 investigation, the July 2019 disciplinary process and the dismissal were driven by conduct findings, not by HIV status. It also found that management did not know the claimant was HIV positive until the appeal hearing in July 2019. | Dismissed | Disability | — |
| Harassment | The tribunal found it more likely than not that the race-related comment attributed to David Robinson on or around 5 February 2019 was made, but held the claim out of time and refused to extend time. The reasons also state that the complaint would not have succeeded on the merits in any event. | Dismissed | Race | — |
| Race discrimination | The tribunal found it more likely than not that the race-related comment attributed to David Robinson on or around 5 February 2019 was made, but held the direct race discrimination claim out of time and refused to extend time. The tribunal was not persuaded that the comment established less favourable treatment because of race. | Dismissed | Race | — |
| Harassment | The tribunal found it more likely than not that Enias Chawana made the alleged sexual comment on 5 February 2019, but held the complaint out of time and refused to extend time. It also said the claim would not have succeeded on the merits because the claimant did not establish the required unwanted effect or purpose. |
Legal tests applied
9 references- s.98(4) ERA 1996
- Burchell test
- Taylor v OCS Group Ltd
- Iceland Frozen Foods band of reasonable responses
- Polkey v AE Dayton Services
- Richmond Pharmacology v Dhaliwal
- Shamoon comparator test
- Robertson v Bexley Community Centre just and equitable test
- British Coal Corporation v Keeble
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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