Ms J Smith v Maryland Care Home Limited (in voluntary liquidation) and 3 others — 2022

The tribunal heard extensive oral and documentary evidence and found the claimant was not a credible witness on the disputed allegations, preferring the evidence of the second and third respondents and several other witnesses. It accepted that the claimant had breast cancer and that the respondents knew of that disability throughout the relevant period, but found they did not know of any mental health disability until the 1 March 2021 grievance/letter before action.

On the section 15 disability discrimination complaints, the tribunal held that the allegations said to have occurred on 28 August 2020 and in the first week of October 2020 were out of time under section 123 of the Equality Act 2010 and that it was not just and equitable to extend time. It further found that the alleged August and October 2020 conversations did not happen, and rejected the remaining allegations of monitoring, photographing, following, disclosure at a staff meeting, and the September 2021 coffee-shop incident as not proved.

The tribunal accepted that the third respondent's 7 March 2021 threat to tell the claimant's landlord could amount to unwanted conduct and could create an intimidating environment for the claimant, but it found the conduct was prompted by the dispute and the 1 March 2021 letter, not by disability. The harassment claim therefore failed, and the section 15 claim also failed on causation because the treatment complained of was not because of something arising in consequence of disability.

The victimisation claim under section 27 of the Equality Act 2010 failed. Although the claimant relied on the 1 March 2021 letter as a protected act, the tribunal found the allegations in that letter were knowingly false and made in bad faith, so the respondent did not contravene section 27. The tribunal also found the claimant's allegations of racism to third parties and the alleged private-detective photographs were not made out.

On TUPE, the tribunal found the first and fourth respondents failed to consult properly and that the claimant was under a misapprehension about the transfer date and employer identity because the communication was inaccurate. It found the employment transfer took place around 21 January 2022, not the earlier date stated in the correspondence, and adjourned the regulation 15(1) remedy to a later hearing with any award to be assessed under the TUPE compensation provisions.