Case 2200458/2022 · Employment Tribunal
Miss R Barker v Miracle Art and Inspired Sanity Ltd — 2021
- Case reference
- 2200458/2022
- Decision date
- 27 August 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Jeremy Burns
- Panel members
- Mr I McLaughlin, Mrs J Griffiths
Parties
2 namedClaimant
Miss R Barker
Respondent
Key findings
Tribunal's reasoningMiss R Barker carried out intermittent casual work for Miracle Art and Inspired Sanity Ltd from 2016 to 10 September 2021. The tribunal found that each spell of work was a separate agreement with no umbrella contract between assignments. During the periods she worked, she was a worker for the Employment Rights Act 1996 and Working Time Regulations 1998, and she was employed for Equality Act 2010 purposes when working, but she was not continuously employed for the two years needed for ordinary unfair dismissal protection. The tribunal accepted that she was disabled by autism/Asperger syndrome and that the respondent knew of her disability.
The unfair dismissal complaint under section 98 ERA 1996 was withdrawn on the second day of the hearing, and the application to amend the claim to add an automatically unfair dismissal complaint under section 100 was refused. The tribunal did not determine any dismissal remedy. It recorded that the claimant had not acquired two years' continuous employment, so ordinary unfair dismissal protection was not available in any event.
On the Equality Act claims, the tribunal rejected direct disability discrimination, discrimination arising from disability, and failure to make reasonable adjustments. It found that the admitted non-payment of holiday pay and sick pay was an arguable detriment, but that a hypothetical non-disabled casual worker would have been treated the same, so there was no less favourable treatment because of disability. The tribunal also rejected the alleged section 15 detriments, found no relevant PCP for the social media complaint, and held that the respondent did not know of any substantial disadvantage for the purposes of the reasonable adjustments duty.
The harassment and victimisation complaints were also dismissed. Most harassment allegations failed on the facts; the alleged December 2019 assault was not proved and was out of time, and the tribunal held that contacting the claimant's sister and sending the 16 October 2021 summary did not amount to harassment. Victimisation failed because the claimant's complaint was about workplace bullying rather than a protected act under the Equality Act. The only live money claim was holiday pay, which the tribunal adjourned for a further hearing and said should be capable of arithmetic calculation if it was not settled within 42 days.
Claims and outcomes
7 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Withdrawn on day two of the final hearing after the claimant conceded she did not have two years' continuous employment; the tribunal also refused an application to amend to add an automatically unfair dismissal complaint under section 100 ERA 1996. | Withdrawn | — | — |
| Disability discrimination | Direct disability discrimination under section 13 Equality Act 2010. The tribunal found the admitted non-payment of holiday pay and sick pay was an arguable detriment, but held that a hypothetical non-disabled casual worker would have been treated the same and that disability was not a material cause of the treatment. | Dismissed | Disability | — |
| Disability discrimination | Discrimination arising from disability under section 15 Equality Act 2010. The tribunal found no proved unfavourable treatment and rejected the asserted 'something arising' relied on by the claimant. | Dismissed | Disability | — |
| Disability discrimination | Failure to make reasonable adjustments under sections 20 and 21 Equality Act 2010. The tribunal accepted a limited PCP of working with Ms Polyviou only up to 26 August 2021, but found no substantial disadvantage, no relevant knowledge of disadvantage, and rejected the social media PCP as not made out. | Dismissed | Disability | — |
| Harassment | Harassment related to disability under section 26 Equality Act 2010. Most allegations failed on the facts; the alleged December 2019 assault was also out of time, and the tribunal held that contacting the claimant's sister and sending the 16 October 2021 summary did not amount to harassment. |
Legal tests applied
18 references- s230 ERA 1996 employee/worker definitions
- mutuality of obligation
- Carmichael v National Power
- Hall v Lorimer multifactor approach
- Byrne Brothers worker test
- Pimlico Plumbers v Smith
- s13 Equality Act direct discrimination
- Nagarajan material influence test
- s15 Equality Act discrimination arising from disability
- Pnaiser v NHS England
- s20 Equality Act reasonable adjustments
- Environment Agency v Rowan
- s26 Equality Act harassment
- Land Registry v Grant
- s27 Equality Act victimisation
- Chief Constable of West Yorkshire v Khan
- s136 Equality Act burden of proof
- s123 Equality Act time limit
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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