Case 2302973/2020 · Employment Tribunal
Miss Carolina Arias Gayon v 1) Ms Sharon Kaye & 2) Sun Rose Care Ltd — 2023
- Case reference
- 2302973/2020
- Decision date
- 5 January 2023
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Tsamados
- Panel members
- Mr J Hutchings, Mr S Khan
Parties
2 namedClaimant
Miss Carolina Arias Gayon
Respondent
Key findings
Tribunal's reasoningThe tribunal found that Miss Carolina Arias Gayon worked for Sun Rose Care Ltd from 3 February to 24 July 2020 as a Care Co-ordinator / Supervisor and then as Care Co-ordinator. It accepted that, at interview, she had made clear that she needed to leave by 5.30 pm because of childcare responsibilities, and it found that the real issue on 3 February 2020 was the requirement to work outside her agreed hours. Applying the childcare disparity, the tribunal held that a PCP requiring a part-time employee to work outside contractual hours put women at a particular disadvantage, and that the Respondents had not shown that the PCP was a proportionate means of achieving a legitimate aim. The tribunal therefore upheld indirect sex discrimination under section 19 EQA 2010. The later-added disability discrimination and harassment allegations were not determined as separate issues at the hearing.
The tribunal also upheld victimisation in part. It found that the Claimant had done a protected act when she queried the rota decision on 3 February 2020, and that the First Respondent thereafter victimised her by reducing her salary, demoting her, making insulting personal comments about her appearance, withdrawing permission to work from home and retrieving her equipment without warning, and ridiculing and humiliating her in front of other employees. It rejected other alleged detriments, including claims about additional hours pay, the timing of the final salary payment, mileage, text messages, and social-media allegations. It then found that the Claimant resigned because of the discriminatory and victimising course of conduct, and that the resignation on or about 24 July 2020 amounted to a constructive dismissal within section 39 EQA 2010.
On remedy, the tribunal awarded joint and several liability against both Respondents for the discrimination damages. It awarded past loss of earnings of £4,666.88 plus £507.45 interest, and injury to feelings of £3,000 plus £656.70 interest, making £5,174.13 and £3,656.70 respectively. Separately, it upheld the unlawful deduction from wages claim for holiday pay of £519.18, wages of £173.06 and SSP of £63.90, and awarded breach of contract damages of £114.48 for mileage and £58 for the DBS fee. The total award was £9,759.45.
Claims and outcomes
5 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Sex discrimination | Indirect sex discrimination under s.19 EQA 2010. The tribunal found that the First Respondent applied a PCP requiring a part-time employee to work outside agreed hours and responsibilities; it accepted that women with childcare responsibilities were put at a particular disadvantage and held that no proportionality defence was made out. | Upheld | Sex | — |
| Victimisation | The protected act was the Claimant's query on 3 February 2020 about the rota / working-hours decision. The tribunal upheld victimisation only for some detriments: reducing salary, demoting the Claimant, making insulting comments about her appearance, withdrawing permission to work from home and retrieving equipment, and ridiculing / humiliating her in front of other employees. It rejected the allegations about withholding payment for additional hours, withholding the final salary, mileage payments, text messages, and social-media allegations. | Upheld | — | — |
| Constructive dismissal | The tribunal found that the Claimant resigned on or about 24 July 2020 because of the course of discriminatory and victimising conduct by the First Respondent, with the visit to her home while she was off sick treated as the final straw. It held that the Claimant had been constructively dismissed within s.39(7) EQA. | Upheld | — | — |
| Unlawful deduction from wages | The tribunal awarded holiday pay of £519.18 gross, wages of £173.06 gross, and SSP of £63.90 gross. It rejected the separate claim for care days in lieu. | Upheld | — | £756 |
| Breach of contract |
Remedy
Monetary award- Total award
- £9,759
- across all upheld claims
- Compensatory award
- £4,667
- compensatory remedy recorded
Legal tests applied
10 references- s.19 Equality Act 2010
- s.27 Equality Act 2010
- s.39 Equality Act 2010
- s.13 ERA 1996
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- Western Excavating (ECC) Ltd v Sharp
- Vento v Chief Constable of West Yorkshire Police (No 2)
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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