Mrs Kerry Annable v The Honey Pots Day Nursery Ltd — 2022

Mrs Annable was employed by the respondent from 1 November 2017 and went off sick after a July 2019 accident. The tribunal accepted that by September 2020 the respondent had received fit notes and consultant reports showing a deteriorating condition and that, by then, it had actual or constructive knowledge of her disability. It also extended time for the harassment claim under s.123 EqA, finding the claim was only about two weeks out of time and that it was just and equitable to allow it.

On the Facebook posts of 17 September 2020, the tribunal found Sharon Redfern's own posts were a general comment about people being work shy and manipulating the system. They were not directed at the claimant and did not of themselves create the proscribed effect. By contrast, the tribunal found that posts by Scott Clacher and Tammy Friend were about the claimant and her circumstances, were unwanted, related to disability, and had the effect of violating her dignity and creating a degrading, humiliating and offensive environment.

The harassment claim nevertheless failed against the respondent because Mr Clacher was not an employee, Ms Friend's conduct was not advanced as being in the course of employment, and section 111 EqA was not relied on. The tribunal also found that Ms Redfern herself was not acting as the respondent's agent when posting on her private Facebook page, and that her posts were not the relevant cause of the later comments.

For constructive unfair dismissal, the claimant raised a grievance on 21 September 2020. The tribunal found that Ms Redfern dealt with her own grievance despite an obvious conflict, did not carry out a meaningful investigation, treated the matter as closed, failed to offer an appeal, and made unjustified allegations of bullying and harassment against the claimant. That amounted to a breach of the implied term of mutual trust and confidence, was repudiatory, and was an effective cause of the claimant's resignation on 19 October 2020. The tribunal awarded a basic award of £1,211.85, £500 for loss of statutory rights, and a 10% ACAS uplift of £50.