Miss S Beasley v Hozelock Ltd: 1301307/2021
JUDGMENT
[2]The respondent subjected the claimant to pregnancy and maternity discrimination (but not in relation to furloughing her).[3]The respondent shall pay to the claimant compensation for injury to feelings of £22500. The respondent shall pay the claimant interest on the above in the sum of £2539.73 (calculated at 8% from 9 March 2021 to 5 August 2022). The total sum to be paid to the claimant by the respondent for injury to feelings inclusive of interest is £25039.73. The recoupment provisions do not apply to this award.[4]As to the claimant’s financial losses the Tribunal has decided as follows:4.1 There was no percentage chance that the claimant could have been fairly dismissed.4.2 Had she not been dismissed the claimant would have remained on furlough until the end of the furlough scheme in September 2021.4.3 Had she not been dismissed the claimant would have remained working 5 days per week.4.4 The claimant should reach the same level of earnings to that which she enjoyed with the respondent within 3 years of 5 August 2022. 1 of 2 Case number: 1301307/21[5]The parties are going to seek to agree the claimant’s financial losses based on the above decisions, failing which a remedy hearing may be required. Directions about this will be issued separately. Employment Judge Meichen 9 August 2022 Reasons for the judgement having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. 2 of 2 REMEDY JUDGMENT[1]Following the Tribunal’s liability judgment dated 9 August 2022 in which the Tribunal also made decisions relevant to the claimant’s losses the parties were unable to agree the claimant’s financial losses. A further hearing therefore took place and the Tribunal further decided as follows:1.1 The claimant would have been awarded a 2.33% pay rise in 2022.1.2 The claimant should not be compensated for working an additional hour each week now, or for loss of holiday entitlement.1.3 The claimant would not have been paid a bonus in 2022.1.4 The method of calculation for the claimant’s bonus in 2023 and 2024 should be based on a coefficient of 107%.1.5 The ACAS code did not apply to the claimant’s dismissal.[2]In light of these decisions the parties agreed that the claimant’s financial losses should be compensated as follows. The respondent shall pay the claimant:2.1 A basic award of £7,263.2.2 Compensation for lost earnings to date of judgment 05 August 2022 - £2,351.79.2.3 Loss of Bonus – December 2021 - £3,483.12.2.4 Loss of Benefits - £718.802.5 Pension Loss - £1,859.52 1 of 2 Case number: 1301307/212.6 Loss of Statutory Employment Rights - £5002.7 Loss of Earnings 6 August 2022 to 5 August 2025 - £16,152.47.2.8 Loss of Bonus Payment for December 2022, 2023, 2024 - £5,3472.9 Loss of Benefits to 5 August 2025 - £2,156.402.10 Pension Loss to 5 August 2025 - £4,789.44[3]The respondent shall further pay the claimant interest on past financial losses of £573.48 (calculated at 8% on total past losses of £8413.23 from the midpoint between 9 March 2021 and today’s date).[4]It was agreed that the redundancy payment received by the claimant (£7263) should be deducted from the compensatory award. This gives a total compensatory award of £30,669.02 (£573.48 + £2,351.79 + £3,483.12 + £718.80 + £1,859.52 + £16,152.47 + £5,347 + £500 + £2,156.40 + £4,789.44 = £37,358.54 - £7,263).[5]The respondent has already paid to the claimant an injury to feelings award of £22,500 plus interest of £2,539.73 = £25039.73. By consent, 75% of the award should be apportioned to pre-termination discrimination and 25% in connection with the termination of employment.[6]The total amount ordered to be paid by the respondent to the claimant is £62971.75. The claimant will have to pay tax on the award as it exceeds £30000. A grossing up calculation has therefore been performed which results in a total of £78952.82. This means that the total outstanding to be paid by the respondent to the claimant is £53913.09 (78952.82 – 25039.73).[7]The respondent acted unreasonably in the way that part of the proceedings were conducted. It is appropriate to make a preparation time order for 5 hours of the claimant’s time. This makes a total of £205 (5 x £41). The respondent is ordered to pay the claimant that sum too.REASONS
[1]In a remedy judgment dated 21 November 2022 the tribunal awarded the claimant £62971.75. A grossing up calculation was undertaken by the tribunal which resulted in a total award of £78952.82.[2]On 5 December 2022 the respondent applied for a reconsideration of the remedy judgment. The basis of the reconsideration application was that the grossing up calculation carried out by the tribunal was incorrect. The respondent had performed its own calculation and submitted that the total award after grossing up should amount to £71185.05.[3]The tribunal wrote to the parties on 8 December 2022 to give the claimant an opportunity to respond to the application and also to say whether they thought a hearing was required. The claimant responded on 13 December 2022. She said that she trusted in the tribunal’s calculations and would be guided by the judge. Neither party suggested a hearing was required.[4]It was appropriate to reconsider the remedy judgement but a hearing was not necessary in the interests of justice as neither party suggested it was, the 1 of 2 Case number: 1301307/2021 reconsideration was about one error of calculation only and the parties did not disagree on the approach to be taken because the claimant was content to leave the matter in the tribunal’s hands.[5]The tribunal and the respondent’s calculations were checked. The salient point is that in the remedy judgment the tribunal ordered that 75% of the injury to feelings award should be apportioned to pre-termination discrimination and 25% in connection with the termination of employment. The respondent’s calculations excluded the pre termination element from the sum to be grossed up whereas the tribunal’s did not. The tribunal was in error here. This is because injury to feelings awards in respect of pre-termination discrimination are not subject to tax and should therefore not be grossed up. When the tribunal’s calculation was reperformed to take account of the error the same figure was arrived at as the respondent - £71185.05.[6]It therefore seems clear that it is necessary in the interests of justice to reconsider and vary the remedy judgement. This is because the error identified above should be corrected so as to prevent the claimant being overcompensated. It is important to note that this gives effect to the tribunal’s intention as to how the claimant should be compensated and she has not lost out through the reconsideration as she should not be taxed on 75% of the injury to feelings award as it related to pre termination discrimination. ____________