Facts

Ms Crabb began work at the Thanet Road Surgery as a receptionist/secretary on a part time basis in January 2015. She was employed on a fixed one-year contract because Dr Timeyin, who was the sole GP practitioner at the surgery, had concerns that she had been dismissed from a previous job due to poor attendance.

Ms Crabb was offered a contract for another year in January 2016 and then again in January 2017. Ms Crabb did not sign the 2017 contract, but continued to work for Dr Timeyin.

After a few unexplained absences, Dr Timeyin wrote a “Warning Letter” to Ms Crabb in October 2017. He stated that “any further deviation from the agreed days and hours will be followed by disciplinary action and this may include a dismissal.”

On 6 November 2017, Ms Crabb’s daughter became ill. Ms Crabb did not attend work the following day as she believed that she should not return to a healthcare setting after caring for someone with an illness. Dr Timeyin invited Ms Crabb to a disciplinary meeting. Ms Crabb then returned to work and was told by her manager that there was a patient chasing for a response in relation to an insurance form which was left on Ms Crabb’s desk. Ms Crabb completed the form, signed and initialled it, and sent it back to the patient.

The disciplinary meeting took place in mid-November. Dr Timeyin raised both the absence on 6 to 7 November, and Ms Crabb’s completion of an insurance form. On 17 November Dr Timeyin wrote to Ms Crabb and dismissed her with immediate effect. The reason for the dismissal was stated to be the continued absence, and gross misconduct by “signing a medico-legal document which you are not supposed to sign”.  

Ms Crabb brought Employment Tribunal (ET) claims and argued that the decision to dismiss her was direct age discrimination. She claimed that the real reason for her dismissal was because she was of “childbearing” age.  She also claimed that this was the reason she was employed under the series of fixed term contracts rather than given permanent employment,

Decision

Ms Crabb pointed to three acts that she believed were discriminatory:  

1. Dr Timeyin’s raising of the issue of Ms Crabb taking time off work to look after her daughter as a disciplinary issue

2. Dr Timeyin’s use of Ms Crabb signing an insurance form as a reason for dismissal

3. Dr Timeyin’s decision to offer her a series of fixed-term contracts rather than permanent employment

The ET did not accept that Ms Crabb’s colleagues could be used as comparators. There were material differences between them and Ms Crabb. The ET considered hypothetical comparators in relation to each detriment:

1. A hypothetical employee who was older than Ms Crabb – and who would have also had absences – would have been treated the same way. Any detriment suffered by Ms Crabb was therefore not related to age.

2. In relation to the insurance form issue, the ET concluded that a suitable comparator would have to be someone who filled in an insurance form which should not have been filled in. There is no evidence to suggest that Dr Timeyin would have been any more lenient to an older hypothetical employee.

3. In relation to the series of fixed term contracts, a suitable comparator would have to be an individual who Dr Timeyin believed had lost their previous job because of poor attendance. The ET again concluded that Dr Timeyin would have treated such a person in the same way. He would not have offered a permanent contract to a hypothetical comparator regardless of their age. The ET said that a lack of tolerance of the unreliability that is sometimes caused by caring for children cannot be directly equated with a lack of tolerance of an age group. The ET went on to state that Ms Crabb might have been able to argue that the treatment was indirect discrimination, but it did not consider it appropriate to re-formulate the case for Ms Crabb.

The ET therefore said that there was no link between the age of Ms Crabb and the detriments suffered, and so Dr Timeyin had been able to discharge the burden of proof. The claims of age discrimination were dismissed. 

Ms Crabb had also brought claims of unfair and wrongful dismissal, which were upheld.

The judgment is available here.

Miss C Crabb v Dr Ebenezer Timeyin T/a Thanet Road Surgery: 2300616/2018