Member EA Farrell Tribunal Member E Borowski Mrs S Smith v Represented by Mr D McCusker Solicitor Karen Cullen and Rhonda Reid t/a Craigend Out of School Care — 2019

The claimant, who had been diagnosed with cancer in April or May 2018, brought discrimination complaints arising from events in June to October 2018. At the start of the hearing she confirmed that only the section 19 indirect discrimination and section 26 harassment claims were being pursued; the section 13 direct discrimination complaint and the unpaid wages complaint were treated as withdrawn and dismissed. The respondent accepted that the claimant had the protected characteristic of disability and knew of it from May or June 2018. The main factual dispute concerned a face-to-face conversation at Stepps on 28 June 2018 and the later handling of sick lines and SSP payments.

For the section 26 harassment claim, the tribunal accepted that the claim was out of time but allowed it to proceed because it was just and equitable to do so, taking account of the claimant’s health and the absence of prejudice to the respondent’s defence. The claim failed on the facts, however, because the tribunal did not find that Karen Cullen said words to the effect that the claimant could resign or that she would be paid off. It placed weight on the difference between the claimant’s ET1 and her oral evidence, the fact that the issue was not raised with the respondent until the ET1 was presented, and the claimant’s subsequent conduct in continuing to work for the respondent after 28 June 2018. The tribunal said that even if such words had been spoken, it would not have found that they had the effect of violating the claimant’s dignity.

On the section 19 indirect discrimination claim, the pleaded PCP was described as the managerial administration of payments, including lack of communication and erratic payments of wages and SSP. The tribunal found that the respondent’s normal practice was to pay wages between the 25th and the end of the month, with exceptions for particular reasons, and did not accept that there was a PCP of erratic payments or a PCP of lack of communication. It accepted that there were delayed SSP payments in July and September 2018, but found that these arose from issues about sick lines and that the claimant received the sums due to her. The tribunal also found no evidence that disabled employees as a group were placed at the particular disadvantage argued for on the pleaded basis.

The tribunal noted that the respondent’s handling of the claimant’s absence was not ideal: there were no formal meetings, weekly calls did not take place, and sick lines were sometimes misplaced. It also observed that the claimant had not raised the alleged 28 June conversation with the respondent before lodging the ET1 and that she continued to work on 3 and 10 July 2018. No financial award was made because all live claims failed and the withdrawn complaints attracted no remedy.