Mrs G Simmonds v Magic (UK) Limited Heard — 2022

Mrs Simmonds brought claims arising out of her employment as CEO of Magic (UK) Ltd, including constructive unfair dismissal, disability discrimination, harassment, failure to make reasonable adjustments, notice pay, holiday pay and unauthorised deductions from wages. She had also pleaded sex discrimination and discrimination on grounds of marital status, but withdrew those claims before the hearing. The Tribunal's findings were shaped by the parties' disputes about salary, governance, disciplinary allegations and the grievance process that followed concerns raised by the Trustees.

On unfair dismissal, the Tribunal held that the Claimant had not been constructively dismissed. It found there was friction between Mrs Simmonds and Paul Thomas, but that the evidence showed she resisted his wish for a more structured and financially controlled approach to the organisation. The matters relied on did not amount to a fundamental breach of contract or a breach of the implied term of trust and confidence, so the unfair dismissal claim was dismissed.

On disability, the Respondent conceded that the Claimant was disabled by reason of physical mobility impairments said to be caused by thrombosis and edema leading to back pain, and the Tribunal also found that stress and depression met the statutory definition of disability. However, direct disability discrimination failed because the communications during sickness, instructions to staff not to contact her, and the decision not to let her return to work while she remained suspended were found to be explained by the grievance and disciplinary process, not by disability. The harassment claim failed because the Tribunal was not satisfied that the conduct was related to disability.

The reasonable adjustments claim was found to be out of time, with the Tribunal holding it had no jurisdiction to consider it. In any event, the Tribunal said there was no sufficient basis to find that the Respondent knew, or ought reasonably to have known, of a relevant substantial disadvantage, and it was not persuaded that the claimant had proved the PCPs alleged or that the proposed adjustments were shown to be reasonable. The Tribunal also noted that the Claimant herself provided a specialist chair for her back pain.

The remaining money claims also failed. The Tribunal found that Mrs Simmonds had not proved an entitlement to enhanced contractual sick pay, so the unlawful deductions claim failed and only statutory sick pay was due and paid. For holiday pay, the Tribunal found the leave year was the calendar year and that the contractual holiday entitlement was 29 days per year pro rata to a three-day week, giving 17.4 days per year; it calculated 4.4 days accrued untaken leave at termination but found 4.5 days had already been paid in her final salary payment. It did not rely on the written contract the Claimant relied on, finding she had fabricated and backdated it for Ofsted purposes, and it declined to enforce the higher salary basis she advanced. The notice pay claim failed because the Claimant resigned with immediate effect and was not dismissed, and no remedy was awarded.