IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

Miss Eleanor Mahoney

CLAIMANT

 

AND

 

 

Mr Mark Jones

 

JTC Group

RESPONDENT (1)

 

RESPONDENT (2)

 


 

TRIBUNAL JUDGMENT


 

 

Reference: [2017]TRE124 & [2017]TRD030

 

Hearing Date: 16 October 2017

 

 

Before: Mrs Hilary Griffin, Chairman                               

 

Appearance:

For the Claimant:           In person

For the Respondent:     Mr Mark Jones

                                    Ms Carol Graham, Group Head of HR

 

 

Introduction

 

1.       I sat alone on 16 October 2017 in what was listed for a Case Management Meeting.  The Respondent had issued a strike out application and I sat to determine that application, with the intention of issuing directions for the future conduct of this matter, depending upon the outcome.  As will be seen, there was no need to issue such directions.

 

2.       The Respondent employed the Claimant as a Receptionist between 5 June 2017 and 20 July 2017, when she was dismissed.  The Claimant submitted claims for:

 

a)       Automatic unfair dismissal; and

b)      discrimination based on the protected characteristic of sex. The Claimant submitted that she suffered indirect discrimination, but I also considered whether the Claimant’s claim of discrimination fell within the scope of any other types of discrimination as set out in the Discrimination (Jersey) Law 2013 (“Discrimination Law”).

 

3.       The Respondent submitted that the Claimant’s discrimination claim should be struck out on the grounds that the Respondent was unable to understand the grounds for the claim.  The Respondent was not legally represented, but it was clear to me that this application was made on the basis that the Respondent did not believe that the Claimant had a reasonable prospect of success in her discrimination claim.

 

4.       If the discrimination claim were struck out, the Claimant would no longer be able to pursue her unfair dismissal claim due to her lack of continuous employment.

 

The Claims

 

5.       The Claimant explained that she believed that she suffered less favourable treatment because:

 

a)       the First Respondent commented at her probationary meeting that he did not consider her attire to be sufficiently smart for the working environment (the “Comment”); 

b)      the Comment was upsetting because the Claimant did not like being compared to the other female receptionist;

c)       the Comment was unfair because the Claimant had worn the same outfit at her interview when she was offered the position;

d)      there was no formal dress code and it was unfair that she should be criticised for her attire;

e)      the Comment was made because the Claimant is a ‘plus size’ woman; and

f)         the cause of her subsequent dismissal was rooted in the fact that she is a ‘plus size’ woman.

 

 

6.       The Respondents explained that there was a dress code in force which required all employees to wear ‘smart business dress’.  The Respondents stated that the Claimant was aware of this dress code throughout her employment and that it applied equally to both men and to women. 

 

7.       The First Respondent explained that the meeting in question was to discuss the Claimant’s probationary period and that the Claimant’s attire was one of a number of points which he raised at the meeting.  The Respondents said that they did not dispute that the outfit which the Claimant wore on that particular day (and also at her interview) was appropriate ‘business dress’.  However the Claimant did not always wear that outfit and was not consistently smart.  The Respondent believed it to be reasonable to raise this concern at a probationary meeting and did not consider it to be discriminatory in any way.

 

 

The Law

 

 

8.       Under Article 24(1) of the Procedure Order, the Tribunal may strike out all or part of a claim or response, either on its own initiative or on the application of a party.  For the purposes of this matter, I considered the grounds specified in Article 24(1)(a) which states that the Tribunal has the power to strike out the Applicant’s complaint if it is ‘scandalous or vexatious or has no reasonable prospects of success’.  I focused on the Respondents’ submission that the Complaints had ‘no reasonable prospects of success’. 

 

9.       A complaint will have ‘no reasonable prospects of success’ if a prima facie case cannot be established by a claimant.  In order for a claimant to establish a prima facie case, the claim must on the face of it show that sufficient evidence appears to exist to support that claim. 

 

10.   In reaching my decision in this matter, I considered whether striking out the Claimant’s claim was a necessary, proportionate and appropriate course of action based on the information provided in this case (Bisson v Gifford & Kirton JET0507-D-16/16; Weir Valves and Controls (UK) Limited v Armitage [2004] ICR 371 EAT).  I also kept in mind that a Tribunal will not strike out a complaint of discrimination unless it is very clear that it has no reasonable prospects of success (Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391; Jiad v Byford and Others 2003 IRLR 232).

 

 

THE DECISION

 

 

11.   I carefully considered the matters before her and assessed both parties’ submissions.

 

12.   The Claimant submitted that the Comment regarding her attire and her subsequent dismissal amounted to less favourable treatment which was discriminatory in nature. In order to fall within the scope of the Discrimination Law, the Claimant has to be able to show that any less favourable treatment is because of a protected characteristic as identified in Schedule 1 of the Discrimination Law.  If the reason for the less favourable treatment is not because of one of those protected characteristics, then the less favourable treatment will not be discriminatory for the purposes of the Discrimination Law.

 

13.   I asked the Claimant on a number of occasions whether she believed her treatment was because of sex.  Her responses were muddled and inconsistent in this regard, and it was clear to me that the Claimant’s own belief was that the Comment and her subsequent dismissal some weeks later were due to her being ‘plus size’.  The Claimant considered her treatment by the Respondents to be unfair and hurtful and she strongly objected to the First Respondent comparing her to the other female receptionist (who was not ‘plus size’).

 

14.   Despite being questioned on the point, the Claimant made no suggestion that she, as a woman (or indeed as a ‘plus size’ woman), was treated less favourably in the workplace then a man (or a ‘plus size’ man).  She did not submit that the dress code itself was discriminatory and there was no suggestion that the dress code was in any way inappropriate for the working environment.  Quite simply, the Claimant believed that she had been discriminated against because of her size and she was unable to provide any details supporting the claim that the less favourable treatment was because of sex.

 

15.   It was clear, therefore, that the alleged less favourable treatment was not based on any protected characteristic contained in the Discrimination Law.  The Discrimination Law does not protect individuals from less favourable treatment due to their size or weight.  Simply being treated unfairly does not, of itself, amount to discriminatory behaviour. 

 

16.   In view of the above, I concluded that the Claimant’s discrimination claim had no reasonable prospect of success, and therefore struck it out under the provisions of Article 24(1)(a) of the Procedure Order.  Furthermore, in the absence of the discrimination claim, the Claimant could no longer rely on Article 70A of the Employment (Jersey) Law and claim automatic unfair dismissal.  The Tribunal therefore does not have jurisdiction to hear her unfair dismissal claim because the Claimant did not have sufficient continuous service to file an unfair dismissal claim unless it was ‘automatically unfair’. The Claimant’s claim of unfair dismissal was also therefore struck out.

 

 

 

 

 

Mrs Hilary Griffin, Chairman                                            Date:

…………………………………………………

 

Sent to the parties on:

…………………………………………………

 

 


Page Last Updated: 11 Jan 2018