Claimant v The Chestnuts Surgery (a partnership)
Outcome
Individual claims
The tribunal found that the respondent was not liable for the discriminatory act. The less favourable treatment (withdrawal of the job offer) was done by Medway Maritime Hospital (MMH), not by the respondent. Under s.13(1) EqA, 'person A' who treats the claimant less favourably was MMH, not the respondent. The respondent cannot be held liable for MMH's decision. Furthermore, the respondent/Mr Potter actually attempted to assist the claimant after the job offer was withdrawn, calling MMH and offering to provide a personal reference.
The tribunal found that the claimant resigned voluntarily on 21 July 2022. Her resignation email was express and unequivocal, stating 'I today give notice of my resignation'. There was no ambiguity. The claimant was not dismissed by the respondent under s.95(1)(a) ERA 1996. The resignation was prompted by workplace incidents on 20 July 2022, not by any action of the employer terminating her contract. Therefore, there was no dismissal and the unfair dismissal claim fails.
The claimant withdrew her claim for holiday pay at the outset of the hearing.
Facts
The claimant, a 66-year-old Healthcare Assistant, worked for the respondent GP surgery from October 2018 to August 2022. After returning from furlough in 2021, she discussed drawing her NHS pension and potentially retiring, though her plans fluctuated. In July 2022, she applied for and received a conditional job offer from Medway Maritime Hospital (MMH). Following workplace incidents on 20 July 2022, she resigned by email on 21 July 2022, stating she was 'unhappy' and giving 'notice of my resignation'. The practice manager agreed a termination date of 18 August 2022 with pay in lieu of notice. MMH requested a reference from the respondent. The reference contained errors, including stating the claimant was under investigation (incorrect) and that the respondent would not re-employ her because she was 'looking to retire from the surgery before Christmas time'. MMH withdrew the job offer, citing the investigation comment as the reason.
Decision
The tribunal found that the claimant resigned voluntarily and unequivocally on 21 July 2022; she was not dismissed by the respondent, so the unfair dismissal claim failed. The age discrimination claim also failed because the less favourable treatment (withdrawal of the job offer) was carried out by MMH, not by the respondent. Under s.13 EqA 2010, 'person A' who discriminated was MMH, and the respondent cannot be held liable for a third party's discriminatory decision. The respondent actually tried to assist the claimant after the offer was withdrawn.
Practical note
An employer cannot be liable under the Equality Act for discriminatory treatment carried out by a third party (such as a prospective employer acting on a reference), even if the reference contributed to that treatment.
Legal authorities cited
Statutes
Case details
- Case number
- 2304031/2022
- Decision date
- 10 May 2024
- Hearing type
- full merits
- Hearing days
- 4
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Health Care Assistant
- Service
- 4 years
Claimant representation
- Represented
- Yes
- Rep type
- lay rep