MISS HOPKINS (LAY REPRESENTATIVE) FOR THE v Respondent — 2022

The tribunal sat at Cardiff on 3, 4 and 5 May 2022 before Employment Judge S Povey, sitting with Mr M Pearson and Mr A Fryer. It unanimously dismissed the unfair dismissal and wrongful dismissal claims, rejected the age-based indirect discrimination and harassment claims, and struck out the unlawful deduction from wages and unpaid holiday pay claims for want of jurisdiction. The reasons record that the claimant had died on 24 September 2020, which brought the employment to an end by operation of law before the respondents sent their email of 29 September 2020.

On unfair dismissal, the tribunal held there was no dismissal within section 95 ERA 1996. It found the 29 September 2020 email could not in law extend the employment relationship and was, at most, a misunderstanding by the respondents, who believed the claimant had resigned or retired. For the same reason, the wrongful dismissal claim for notice pay failed because there was no employer termination of employment to trigger any notice obligation.

The indirect discrimination claim was treated as an age claim. The tribunal identified two PCPs: requiring the claimant to return from full furlough and requiring her to work under the respondents' Covid working arrangements. It found neither PCP placed her at a particular disadvantage compared with younger staff, noting the Covid adjustments made to the premises, that she was not shielding, that the risks identified by her age were addressed by the measures in place, and that she did not ask to remain on full furlough. The claim was therefore dismissed under section 19 EqA 2010.

The harassment claim was also treated as age-related. The tribunal considered allegations about the return-to-work conditions, the written warning, and alleged disregard of age-related vulnerability. It found the working arrangements were mandated by Covid regulations and were a reasonable response, that concerns were either not communicated or were reasonably addressed, that the written warning related to conduct rather than age, and that there was no evidence of deliberate antagonism or conduct meeting the harassment threshold under section 26 EqA 2010. The claim was dismissed.

The tribunal struck out the unlawful deduction from wages and unpaid holiday pay claims because, as a personal representative, Mrs Morgan could not bring those claims in the tribunal under section 206 ERA 1996. It expressly stated that no findings were made on the merits of those claims. No award was made.