Case 2411247/2021 · Employment Tribunal
Mr L Barker v Wirral University Teaching Hospital NHS Foundation Trust — 2023
- Case reference
- 2411247/2021
- Decision date
- 28 March 2023
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Sharkett
- Venue
- Liverpool
Parties
2 namedClaimant
Mr L Barker
Key findings
Tribunal's reasoningAt this preliminary hearing, the tribunal held that it had jurisdiction under regulation 30 of the Working Time Regulations 1998 to hear the Regulation 13(10) carry-over complaint. It rejected the respondent's contention that time started on 1 April 2021, holding instead that the relevant date was 19 April 2021, when the claimant was told his request was refused, and that the ET1 was then presented in time after early conciliation.
On the unlawful deduction of wages claim, the tribunal allowed allegations (i) to (iii) to proceed, covering the first shielding period from 27 March to 31 July 2020, the period 1 August to 4 November 2020, and the second shielding period from 5 November to 5 December 2020. It accepted that there was an arguable basis for the claimant's case that Covid-19 special leave and annual leave pay should have included enhancements, and that the Agenda for Change reference-period issue required evidence. It struck out allegations (iv) to (vi) under rule 37, holding that there was no contractual basis to claim full pay while the claimant was on occupational sick pay, statutory sick pay, or contractual sick pay.
The respondent's applications to strike out, or alternatively to order deposits for, the disability discrimination complaints under sections 15 and 21 of the Equality Act 2010 were refused. The tribunal treated the refusal to carry over annual leave, the alleged failure to identify suitable duties to work from home or in a non-clinical environment, and the phased return allegations as arguable matters that needed evidence. It also noted that some allegations pre-dated April 2021 and were not treated as 'sick leave' complaints, and left any remaining time-limit issue for the final hearing.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Working time regulations | Preliminary ruling only: the tribunal held it had jurisdiction under Regulation 30 of the Working Time Regulations 1998 to hear the Regulation 13(10) carry-over complaint, found time ran from 19 April 2021, and held the ET1 was in time after early conciliation. | Other | — | — |
| Unlawful deduction from wages | Partial strikeout decision: allegations (i) to (iii) were allowed to proceed, while allegations (iv) to (vi) were struck out under rule 37. The tribunal found an arguable contractual basis for pay/enhancements during shielding and annual leave, but no contractual basis for full pay during occupational sick pay, SSP, or contractual sick pay periods. | Other | — | — |
| Disability discrimination | The respondent's applications to strike out or obtain deposits under rules 37 and 39 were refused for the s15 and s21 disability complaints. The tribunal treated the annual leave carry-over, phased return, and related adjustment allegations as arguable and requiring evidence; any remaining time-limit issue was left for the final hearing. | Other | Disability | — |
Legal tests applied
13 references- Regulation 30 WTR 1998
- Regulation 13(10) WTR 1998
- s.13 ERA 1996
- s.23 ERA 1996
- rule 37 Employment Tribunals Rules of Procedure 2013
- rule 39 Employment Tribunals Rules of Procedure 2013
- Tayside Public Transport Co Ltd v Reilly
- Ezsias v North Glamorgan NHS Trust
- Lockey v East North East Homes Leeds
- Chandhok v Tirkey
- Madarassy v Nomura International plc
- s.15 Equality Act 2010
- s.21 Equality Act 2010
Official outcome judgment PDF
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Published on gov.uk under the Open Government Licence v3.0.
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