Claimant v Dragon Cat Limited t/a Dragon Cat Cafe
Outcome
Individual claims
The tribunal upheld the complaint of constructive unfair dismissal against the first respondent. The tribunal confirmed this finding on reconsideration.
The claimant failed to persuade the tribunal of the facts that were said to underpin the allegations of direct race discrimination on the balance of probabilities. The tribunal did not make findings of fact that would cause the burden to shift to the respondents to explain their conduct, therefore the claim automatically failed.
The tribunal upheld the claim of wrongful dismissal against the first respondent for the reasons given previously and confirmed on reconsideration.
The claim of not allowing the claimant to be accompanied contrary to s.10 Employment Rights Act 1999 failed because the claimant did not ask to be accompanied at the disciplinary meeting on 1 July 2023. The right under s.10 ERA 1999 only arises where the employee requests to be accompanied, which the claimant did not do.
Facts
The claimant worked at Dragon Cat Cafe and brought claims of constructive unfair dismissal, direct race discrimination, wrongful dismissal, and failure to allow her to be accompanied at a disciplinary meeting on 1 July 2023. She was not informed of her right to be accompanied and did not ask to be accompanied. The claimant applied for reconsideration of the liability judgment on four grounds.
Decision
On reconsideration, the tribunal upheld its previous findings that the constructive unfair dismissal and wrongful dismissal claims succeeded against the first respondent. The race discrimination claim failed because the claimant did not establish the facts on the balance of probabilities. The s.10 ERA 1999 claim failed because the claimant did not request to be accompanied.
Practical note
A claim under s.10 Employment Relations Act 1999 for the right to be accompanied requires the employee to have actually requested to be accompanied; the right does not arise automatically even where the employer failed to inform the employee of the right.
Legal authorities cited
Statutes
Case details
- Case number
- 2216707/2023
- Decision date
- 17 February 2025
- Hearing type
- reconsideration
- Hearing days
- 1
- Classification
- procedural
Respondent
- Sector
- hospitality
- Represented
- No
Claimant representation
- Represented
- No