Ms L Monaghan v Represented by: Mr W McParland - Solicitor ASA International Ltd t/a ASA Recruitment — 2020

At the preliminary hearing on 10 August 2020, the tribunal found that Ms Monaghan was disabled within section 6 of the Equality Act 2010 at the relevant time, the physical impairment being endometriosis. It accepted that she had long-standing endometriosis before her hysterectomy in November 2017 and that, despite the operation, pain and bleeding continued into 2019. The tribunal noted the medical evidence, including Dr Yousef’s December 2018 letter saying the pain could be due to endometriosis, and relied on the claimant’s evidence that the symptoms continued after the operation.

The tribunal held that those continuing symptoms had a substantial and long-term adverse effect on normal day-to-day activities. It found that the claimant’s pain, bleeding, low mood and irritability affected her relationships, socialising, ability to leave the house, travel, personal care, and ability to work, and it noted the emergency hospital attendance on 2 June 2019 for extensive bleeding. On that basis, the disability discrimination claim was allowed to proceed, although the tribunal did not decide the substantive discrimination issues at this hearing.

The tribunal dismissed the constructive unfair dismissal claim because it found that Ms Monaghan was not an employee of ASA International Ltd t/a ASA Recruitment within section 230 ERA 1996. Although she worked a regular 4-on, 4-off pattern for about 3.5 years, the tribunal concluded that the relationship was an agency-worker arrangement rather than a contract of service. It relied in particular on the absence of sufficient mutuality of obligation and control: the claimant could refuse work, the respondents were not obliged to offer work, and day-to-day supervision and allocation of duties were carried out by ERC. The tribunal also treated the written terms for agency workers as relevant but not decisive, and held that the ERA dismissal claim could not proceed.