Miss L Thorn v Mr A Fish T/a Sound Service Property: 1401454/2024
EMPLOYMENT TRIBUNALS
Case No 1401454/2024
Between
Miss L ThornClaimantMr A Fish T/a Sound Service PropertyRespondent
Before
Employment Judge MidgleyDate 20 January 2026
JUDGMENT
[1]The claims of age discrimination are not well founded and are dismissed.[2]The claims of unauthorised deduction of wages are not well founded and are dismissed. JUDGMENT having been handed down on 4 December 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:
REASONS
[1]By a claim form presented on 15 June 2024, the Claimant brought claims of discrimination on the grounds of age, unlawful deduction from wages and accrued but unpaid annual leave.[2]By a response presented on 23 September 2024 the Respondent resisted the claims.[3]The issues to be determined at a final hearing were discussed and agreed at a case management hearing before Judge Bowen on 24 February 2025. The claim for holiday pay was dismissed on 13 October 2025 following its withdrawal by the Claimant.[4]Further changes to the issues were made by agreement at the outset of the hearing. They are detailed in the ‘Issues’ section below. Procedure, Hearing and Evidence[5]The parties had agreed a bundle of documents (261 pages), and had prepared witness statements for the following witnesses: 5.1. For the Claimant: Miss Thorn (11 pages) 5.2. For the Respondent: Mrs Pauline Sibbit; Mrs Bea Janes; Mr Peter Fish, Mr Anthony Fish.[6]At the outset of the hearing the Judge discussed the claims and allegations with the Claimant and her father, explaining the nature of each and the legal requirements to succeed. The Judge asked the Claimant to identify the comparators she relied upon (where it was not possible to identify them from the claim or case management order). The Judge further invited the Respondent to set out which of the factual allegations was disputed and to provide a list of any non-discriminatory reasons for the conduct complained of which it relied upon, so that the Claimant could understand whether she sought to challenge the reason and/or to better evaluate the merits of her claims and allegations. The Judge invited the Claimant to consider whether, following that review, she wished to withdraw any of the allegations before the hearing began.[7]The Tribunal permitted the parties an adjournment (whilst it read the statements and documents referred to) to conduct those tasks. The parties undertook the tasks allocated to them.[8]Mrs Ovnik had produced a document containing a table settling out the Respondent’s case on each issue.[9]Mr Thorn confirmed that having considered the Judge’s explanations and the Respondent’s table the Claimant was withdrawing the allegations recorded at issues 2.2.2., 2.2.5, 2.2.7 and 2.2.10. Furthermore, he confirmed that her claim in respect of issue 2.2.11 was limited to her complaint about arrears of pay only, not holiday pay. Mr Thorn then listed the comparators relied upon in relation to each remaining allegation.[10]The Judge then clarified the age group with which Miss Thorn identified and that which she compared her treatment too.[11]Each of the witnesses (with the exception of Mr Anthony Fish, whose evidence the Claimant did not seek to challenge) gave evidence and answered questions from the Claimant and Mrs Ovnik and the Tribunal as appropriate. During the claimant’s evidence she withdrew the allegation detailed in the list of issues at 2.2.8(ii) relating to a complaint about the smell of cannabis emanating from the flat of a tenant above the Respondent’s premises.[12]At the conclusion of the evidence, each of the parties produced helpful written arguments which they expanded upon in short oral submissions. We are grateful to each of them for the careful way in which they presented their respective claims.
Factual Background
[13]We make the following findings of fact on the balances of probabilities in light of the evidence we heard and the documents presented.[14]The Respondent is one partner (with his wife, the other partner) who has carried on business trading as “Sound Property Services.” The operation is a small family run business operating from premises in Witney, Oxford and Ventnor on the Isle of Wight, working as a residential property lettings company.[15]At the time of the events which form the subject of this claim, the Respondent’s wife had retired from the business and the Respondent himself had little day to day involvement given that he was and is the primary carer for his wife who has a significant health condition. The Respondent’s role in the business was therefore, in his own words, largely strategic; he had passed the day to day running of the business to his son, Peter Fish, and to Pauline Sibbit who was employed as the Officer Manager.[16]In 2023, the Respondent’s staff in Ventnor consisted for Mr Fish (senior), and the following: 16.1. Mr Peter Fish, whose role was limited to overseeing the management of the office and who attended on a fortnightly basis on average. He had worked in the business for 15 years. He did not have a key to the Ventnor office. 16.2. Mrs Pauline Sibbit, the Office Manager. She had been employed by the Respondent for 28 years and her career had progressed from the role of cleaner to Office Manager during that time. She had keys for the office. She was then in her early 60s. She had responsibility for recruitment to the office. 16.3. Mr Graeme Palmer, a manager. He was 50 and had keys for the office. 16.4. Mrs Beatrice Janes, a part-time bookkeeper. She worked 3 days a week on a variable basis. She was responsible for payroll and recording holiday entitlement as well as general book-keeping for the Respondent’s business.[17]The Respondent also employed a Maintenance Officer; he was not given an office key.[18]The Respondent’s practice was for its staff to prepare and file possession (and other applications relating to residential property) in the County Court, it did not instruct solicitors or counsel to do so. The Claimant’s appointment[19]In approximately May 2023 the Respondent, acting through Mrs Sibbit, advertised a vacancy for a part-time Office Administrator working 8.30am to 4:30pm. The advertisement stated that the role would focus on administrative tasks, communication with tenants and contractors. The advertised hourly rate was £11.00 to £12.00.[20]The Claimant and Mrs Turton, who was then 47, applied for the role. Mrs Turton’s CV, which she submitted with her application, detailed 19 years of experience in administrative roles. Additionally, part of that period of experience included 19 years working for HMCTS through which experience Mrs Turton had, we find accepting Mrs Sibbit’s evidence, daily exposure to the regulations and court forms and applications relevant to the role, including possession claims and warrant applications.[21]The Claimant’s application was submitted on 23 July 2023. She attached a covering letter. She completed an online assessment on 24 July 2023.[22]The Respondent invited both Mrs Turton and the Claimant to an interview on 26 or 27 July. The Claimant was unable to attend on either day. Mrs Sibbit conducted an interview with Mrs Turton following which she offered her the role. Mrs Turton accepted it on 27 July and confirmed a start date of 15 August 2023. Her agreed hourly rate was £11.75. Mrs Turton’s primary responsibilities were to assist with the Respondent’s work relating to residential tenants, inspections and property maintenance, compliance (such as researching the changing statutory regime and the Respondent’s obligations). She was provided with an office key on the commencement of her employment.[23]Nevertheless, Mrs Sibbit believed that the Respondent could engage the services of a second Office Administrator, primarily with a focus on project work, because the Respondent’s projects had not been actioned or developed since the incidence of the Covid 19 pandemic. Consequently, she asked the Claimant to provide a copy of her CV in August 2023, which she duly did.[24]The Claimant’s CV disclosed that she had an NVQ in Business Administration which she had undertaken September 2016 – 2017, with work experience at a Primary School, and had further administrative experience working as a temporary HR Support Assistance in 2015-2016. Since 2017 the Claimant had worked as a personal shopper for Tesco and as a cleaner (described as a ‘Holiday Operations Administrator’) preparing National Trust holiday properties for use.[25]We are satisfied that there was a material gulf in the comparative administrative experience of Mrs Turton and the Claimant; the former had nearly 19 years’ experience, the Claimant two years; Mrs Turton’s experience was within the last three years, the Claimant’s was not. Additionally, we accept Mrs Sibbit’s evidence that Mrs Turton had experience of the mechanism and devices of possession proceedings in the County Court. Specifically, she was familiar with the relevant forms used to apply for warrants for possession and similar applications.[26]Mrs Sibbit interviewed the Claimant on 16 August 2023. During the interview the Claimant explained that she continued to work on Fridays for the National Trust. She was offered a role as an Office Administrator working Tuesday to Thursday, 8.30am to 4:30pm at an hourly rate of £11.00. That rate of pay was discussed by Mrs Sibbit and the Claimant, the latter pushing for a higher starting salary, but Mrs Sibbit was not satisfied that the Claimant had sufficient experience of residential lettings or general administrative work to justify a higher salary. She proposed that the Claimant could trial the work for two days in September, to see whether she liked it, before taking some pre-booked holiday for two weeks, and could then return if she wished, when she could begin project work. She proposed a pay review after three months when the Respondent would have some idea of the Claimant’s performance and aptitude for the role.[27]On 29 August 2023, Mrs Sibbit wrote to the Claimant confirming her appointment, stating the rate of pay of £11 an hour and that there would be a pay review in three months and adding, “The role will include dealing with all aspects of the letting side of the business along with some of the ongoing projects.”[28]Mrs Sibbit suggested that the Claimant should learn the ropes of the general administration from working with and assisting Mrs Turton and that she would be given additional project work. The contracts of employment and the Respondent’s policies[29]The Respondent’s standard form contract, through which the Claimant and Mrs Turton were employed, provided for the following: 29.1. Clause 14 Notice: 1 week until the employee had over two years’ continuous employment; and 29.2. Clause 21: a grievance procedure, which required an employee to raise grievances in the first instance with Mrs Sibbit but referred to the Respondent’s written grievance procedure.[30]The written procedure provided for an informal grievance process, involving an informal discussion with an individual appointed by the Office Manager (Mrs Sibbit), and a formal process following the presentation of a written grievance with three stages as follows: 30.1. A written grievance presented to the employee’s immediate supervisor; 30.2. A written grievance presented to Mrs Sibbit; 30.3. A written grievance presented to Mr Fish (senior), which permitted the appointment of director to investigate the grievance.[31]The first two stages had mandatory timescales of five days for the management to provide an outcome, the final stage proposed a seven-day period from the receipt of the grievance to provide the outcome. The Claimant’s work in 2023[32]The Claimant began working on 6 September. However, she had prebooked annual leave which Mrs Sibbit had agreed to honour with the result that the Claimant did not work between the 7 September and 26 September. She took further holiday on 24 to 26 October 2023 and for the working days of 19 – 21 and 26 to 28 December. The consequence was that the Claimant was at work for just 31 days in the first three months of her employment.[33]The Claimant was not provided with a key to the office. The keyholders at the point of the Claimant’s commencement were Mrs Janes, Mr Palmer and Mrs Turton.[34]The Respondent placed a good deal of trust in the Claimant; on only her third day of work (27 September) Mr Fish authorised the Claimant to use the Respondent’s credit card to make purchases and offered to provide her with his company credit card if the Claimant could not locate the office card. The House in Multiple Occupation (“HMO”) residence.[35]One of the Respondent’s main residential properties was an HMO which housed council tenants for the Isle of Wight council. It contained 31 separate flats and housed 31 individual residents. The Respondent was obligated to carry out regular maintenance inspections to ensure the flats were maintained to a fit and proper standard, checking (amongst other matters) alarms, gas and electricity fixtures and fire safety devices and routes of passage. If the Respondent did not comply with the applicable regulatory inspections and standards, with the result that the HMO were to be deemed to be unfit for habitation, the terms of the Respondent’s contract with the Council required the Respondent to provide alternative accommodation for all the residents. That would have a very significant cost for the Respondent.[36]One of the HMO residents was a young female with mental health conditions; she experienced severe anxiety when meeting people, particularly if they were unknown to her, which caused her to become ill. Consequently, on several occasions when the Respondent had scheduled inspections of her flat, she had experienced anxiety so acute that she had become ill and had had to cancel the appointment.[37]The Respondent conducted weekly meetings in the Ventnor office to discuss the various residential properties, maintenance schedules, works and other issues. The meetings were attended by Mrs Sibbit, Mr Palmer, Mrs Janes, Mrs Turton and the Claimant. Minutes and action points with designated employees to complete them were produced following each meeting. The minutes from October to December demonstrate that whilst the Claimant and Mrs Turton held responsibility for administrative actions, where there were compliance issues (such as Gas Safety inspections) and contractual issues (such as contracts with third party contractors used for maintenance), Mrs Turton was responsible for their completion. Such work on the HMO therefore fell within Mrs Turton’s duties.[38]Mrs Sibbit gave the Claimant some project work in October. She did not specify a time frame for completion, but neither did the Claimant ask when it needed to be completed or what precisely the Respondent required her to do in respect of it (if she was uncertain as to both or either of those matters).[39]At a staff meeting on 6 December 2023, the Claimant asked whether she might have a set of keys for the front door. It was agreed that Mrs Sibbits or Mr Palmer would investigate whether that would be possible. The December pay review[40]The Respondent’s usual practice is to review salaries at the end of each financial year or when a job role is changed. However, as we have detailed above, following the discussion between the Claimant and Mrs Sibbit when the Claimant was appointed, it had been agreed that the Respondent would review the Claimant’s pay after three months, when it was hoped there would have been a clearer picture of how the Claimant was adapting and how the new project role was progressing. That was consistent with Mrs Sibbit’s general practice of reviewing performance with staff who had limited relevant experience, but who had been appointed on the basis of their potential.[41]Consequently, Mrs Sibbit met with Mr Palmer (who was to take over her role of Office Manager following her impending retirement) to discuss the Claimant’s performance and suitability. Both agreed that as the Claimant had only worked 30 days and had not progressed the project work, there was insufficient basis on which fairly or accurately to assess either matter. They identified a specific project they wished her to take on and develop.[42]Mrs Sibbit and Mr Palmer met with the Claimant on 7 December to discuss those matters with her. They explained the matters above and discussed the new project with the Claimant, asking her to familiarise herself with it. The Claimant repeated her request for a set of keys during the meeting.[43]After the meeting, Mrs Sibbit and Mr Palmer agreed that the Claimant needed more time to demonstrate her competency in the Respondent’s specific sector before they could justify a pay increase, and that it would be appropriate to schedule a further review in three months at the end of February. Mrs Sibbit informed the Claimant of that decision; the Claimant understood from that discussion that ‘she needed to learn the business first’ and demonstrate competency in it before she could expect a pay rise. The Respondent did not set specific targets or dates for completion but told the Claimant that she needed to progress the project work that had been given to her.[44]In the event, Mr Fish (senior) called to speak to the Claimant to discuss the project work, specifically the Respondent’s premises in West Street, Newport which were then unoccupied. He provided the Claimant with the background and history to a number of similar properties owned by the Respondent to assist her research. Mr Fish did not have similar discussions with Mrs Turton. The Claimant’s request for office keys[45]The Respondent has always had a limited number of sets of office keys. That is a decision of Mr Fish (senior). He was and remains particularly of the view that as the Respondent is custodian to keys to numerous residential properties which are held in the Respondent’s offices, the Respondent is under a particular duty to maintain the security of those keys and to minimise the risk of them being taken by those who had no right to them. In consequence, Mr Fish’s practice has always been(a) to limit the number of keys in circulation to the lowest possible number,(b) to provide keys to employees only where there is a legitimate business need to do so, and (c), as a function of (b), where two employees work the same days and hours, only to give keys to one of them, and (d) as an function of (c), to provide the keys to the first appointed of such employees.[46]Thus, although Peter Fish attended the Ventnor office regularly, and was a director by title of the business, he did not have keys to the office. Mrs Janes did because she worked variable days and hours, Mrs Sibbit did in her capacity as Office Manager and, following her retirement, Mr Palmer did in the same capacity but, prior to his succession to Office Manager, Mr Palmer had keys because he and Mrs Sibbit had responsibility for out of hour enquiries which might necessitate access to the resident’s keys.[47]Mrs Turton was provided with keys because she was the first appointed Office Administrator and if she worked when Mrs Sibbit or Mrs Janes did not, she required access to the property.[48]Mrs Sibbit therefore considered the Claimant’s request for keys but rejected it. The Claimant asserts that the reason she was not provided with keys was because of her age. The Respondent relies upon the non-discriminatory reasons detailed above. We resolve that dispute in our conclusions below. The Christmas Party[49]The Respondent’s practice was to hold its Christmas party on the last working day before Christmas, closing the office from 12pm and notifying the tenants that the office would be closed. In 2023, the last working day was 21 December. In the event, the Claimant could not attend because she had prebooked annual leave, Mr Peter Fish could not attend, and Mr Anthony Fish could not attend. That was despite it being Mrs Sibbit’s retirement after 28 years’ of service.[50]In these proceedings, the Claimant complained that the Respondent’s decision to schedule the meeting on 21 December was done deliberately to prevent her attending, and further the reason for that decision was her age. Although the Claimant withdrew that allegation on the morning of the second day of the hearing, we note that it was wholly without basis and unhesitatingly find that the reason for the party being scheduled on 21 December was solely because it was the Respondent’s practice to schedule it on the last working day before Christmas and in the afternoon, so as to provide clarity to its tenants. The Claimant’s allegation was both baseless and without merit.[51]It is further worthy of note that(a) the Claimant never made a request for the day of the Christmas party to be changed(b) Mrs Sibbit permitted the Claimant to leave work early on her last day of work before Christmas to have a drink with Mrs Turton, and(c) the Claimant was later given a Christmas gift from Mr Fish by Mrs Janes, as she had not been present when gifts were given to the other staff by him.[52]On 3 January 2024, Mr Palmer spoke with the Claimant and asked her to focus on the properties and maintenance as a priority over the project work for the time then being. The HMO inspection invitation[53]On 23 February 2024, Peter Fish emailed the Respondent’s Ventnor office in relation to a forthcoming inspection of the HMO property on 15 March 2024. He wrote, “If either Graeme or Katrena haven’t been on an inspection I think it would be worth one of them coming with me so you get used to the main issues which arise on these inspections and get to hear how the council thinks about the issues and how we field issues in the most logical way.”[54]The 15 March was a Friday and not therefore a working day for either the Claimant or Mrs Turton.[55]The Claimant’s asserts that the decision not to extend the invitation to her (but to invite Mrs Turton and Mr Palmer) was direct discrimination because of her age. The Respondent disputes that and seeks to rely upon non-discriminatory reasons for the choice. We identify those reasons and resolve the dispute in our conclusions below.[56]On the same day the Claimant applied for the role of Holiday Let Housekeeper with Silver Arch Property Solutions.[57]On 27 February 2024 Mr Palmer resigned giving notice until 4 March 2024.[58]On 28 February, Mrs Turton emailed Mr Fish indicating she would try to attend the HMO inspection and raising other matters regarding the Respondent’s inspection of the HMO which was scheduled for 6 March. That email is, we conclude, further evidence of Mrs Turton’s lead in compliance and property maintenance aspects of her Office Administrator role. The meeting of 5 March 2024 – the Claimant’s formal grievance[59]As Mr Fish (senior) had not previously met either Ms Turton or the Claimant in person, but had only spoken to them on the telephone, he invited them each to visit him at his home. The Claimant was able to attend on 5 March and was the first of the two Office Administrators to meet Mr Fish in person.[60]The two had a pleasant conversation about general matters and the Claimant’s work for the Respondent. The Claimant did not raise any specific concerns with Mr Fish but at the end of the meeting passed him an envelope marked “Private and Confidential.” In the envelope the Claimant had included a grievance letter in which she raised the following matters: 60.1. She was on a lower rate of pay to that Mrs Turton who was ‘older;’ 60.2. She had been promised a pay review in December, but it had been delayed until the end of February and then Mr Palmer had resigned with the result that the review had not taken place; 60.3. She had not been provided with a key to office; 60.4. The Claimant felt excluded because the office party had taken place on a day when she had pre-booked holiday; 60.5. In February a smell of drugs from the flat above the office had caused her to experience a headache; a similar complaint had been made 4 years prior, but Mr Palmer had taken no action in relation to her complaint. 60.6. On 2 November Mrs Sibbit had refused her request to leave early because of poor weather; 60.7. The Claimant had been excluded from the HMO inspection which was due to take place on 15 March; 60.8. The Claimant had not received any training in her role; and 60.9. Mr Palmer had criticised her for not progressing work quickly enough in her review on 7 December, but the Claimant did not have access to the same files as Mrs Turton and she had had to fix the printer as there was no independent IT support.[61]Mr Fish placed the envelope on his desk and did not open it until the following day. When he opened it and read it, he believed that the Claimant must have raised the matters within it with Peter Fish. He did not therefore raise the issue until he was informed that the Claimant had walked out of work on 7 March.[62]On 6 March the Claimant emailed Mr Fish (senior) complaining that there was again a smell of drugs coming from the flat above the office. The events of 6 and 7 March 2024[63]On 6 March 2024, the Claimant had attended the HMO property to conduct inspections with Mrs Turton and the maintenance officer.[64]At the end of that day, 6 March, the vulnerable HMO tenant emailed the Respondent to cancel the Respondent’s inspection on 7 March. That inspection had previously been arranged to be conducted by Mrs Turton and the Maintenance Officer alone to accommodate the tenant’s anxiety. The tenant telephoned early on the morning of 7 March to check that her email had been received and that the inspection had been cancelled. The Claimant answered the call and re-arranged the appointment, requesting and gaining the tenant’s consent for the Claimant to attend as a third person.[65]When Mrs Turton was informed of that change by the Claimant on 7 March, she was critical of her, telling her that she had put her interests above the welfare of the tenant and that she should have discussed the matter with her first, which would have enabled her to explain the tenant’s mental health conditions and their impact on such visits.[66]In the Claimant’s evidence to us, in response to questions from the Judge, she sought to suggest that that criticism was unjust and unfair as she been scheduled to attend the vulnerable tenant’s property on 6 March, together with Mrs Turton and the Maintenance Officer, but they had been unable to gain access. She stated that they spoke to the tenant at the door, and it was then agreed to reschedule the appointment for the following day, with only Mrs Turton and the Claimant attending. Therefore, she suggested that she and Mrs Turton knew from 6 March that the Claimant would attend the rescheduled inspection with the tenant’s consent.[67]The Judge pointed out that that account was so at odds with the account in the Claimant’s witness statement and that which she had given initially in answer to cross-examination as to be impossible to reconcile. Specifically, if the Claimant had agreed with the tenant on 6 March 2023 that she and Mrs Turton would attend on the 7 March there would have been no need for the Claimant to ask for permission for her to attend as a third person to the rescheduled meeting, and further, the proposal would have excluded the Maintenance Officer whose attendance was essential to the inspection.[68]The Judge asked the Claimant which account she relied upon for the purposes of the allegation. The Claimant invited the Tribunal to consider the account in her witness statement. She provided no explanation for why she had chosen to introduce an account in her responses to the Judge which was inconsistent with and contradictory of the account in her statement, or why one should be treated as the truth and the other ignored. It was a profoundly disturbing passage of evidence which led us to conclude that the Claimant could be willing to amend her evidence or worse, potentially to create an account to protect her actions from legitimate criticism and so to protect and advance her legal claims when she believed it necessary to do so. In the context of this case, it was unnecessary to make such a determination.[69]For the avoidance of doubt, we unhesitatingly prefer the evidence of Mrs Janes in relation to the events of the 6 and 7 March. We find Mrs Janes to be a truthful and honest witness to those events and more generally.[70]The Claimant was stung by Mrs Turton’s reprimand and criticisms, not only because she told the Claimant that she had placed her own interests above that of the tenant, which showed a lack of judgment, but also because she had demonstrated a lack of team work in failing to discuss her attendance with Mrs Turton before making such a proposal to the tenant. The Claimant therefore walked out of the office. She was upset and angry because she felt humiliated and flustered because she had been directly reprimanded. The Claimant denied that in her evidence, but we note that in her email to Peter Fish on 7 March she wrote that she found the incident ‘very upsetting’ and in the account she provided to Mr Fish for the purpose of his investigation she wrote: “I became upset and felt I needed to take myself away…. I returned to the room still clearly very hurt and upset… I was still too visibly upset to speak”[71]We reject that last suggestion (that she as too upset to speak), as the Claimant’s statement details how she complained to Mrs Janes that she was being bullied. We find that Mr Janes spoke to her, and the Claimant complained that she was being treated differently to others because of her age. She stated that the staff were ‘horrid’ to her and that Mrs Janes had been ‘very rude’ to her the previous week; Mrs Janes disputed that, asserting that it was the Claimant who had been rude because she had burst into Mrs Janes’ office, causing the door to slam open and had stood with her hands on her hips, stating “I have Graham on the phone and you have not paid him.”[72]The Claimant became even more angry and walked out of the office at 10:30am. She did not return to work. The investigation of the Claimant’s grievance[73]On 7 March Peter Fish was told that the Claimant had walked out and left the office that day; he was at that time on holiday in Spain. He therefore called the Claimant, and they spoke on two occasions. The Claimant told him she had given a grievance letter to his father on 5 March. Mr Fish said he would investigate the Claimant’s complaints but asked her to send him a copy of the letter, which she did at 17:16 that day.[74]On 8 March the Claimant sent Mr Fish a further email, confirming that she was pleased he would be investigating her complaints but stating that there were further incidents involving Mrs Janes and Mrs Turton that she wished to complain about. She proposed to produce a list over the weekend (9 and 10 March). She sent the list at 17:20 on 10 March (the Sunday). The list detailed some specific dates and events but also consisted of generalised allegations which did not have the necessary detail to enable a response to anything more than the broad allegation or to permit relevant documents (such as emails) to be located and considered as part of any investigation.[75]The 12 March was Mrs Turton and Mrs Janes’ first working day following 7 March. Mr Fish returned from Spain on 12 or 13 March. Neither Mrs Janes nor Mrs Turton worked on 15 March which was a Friday.[76]The Claimant resigned on 16 March with immediate effect. She complained that she had not received an acknowledgment or an outcome to her grievance.[77]Mrs Turton resigned on 20 March 2024, giving a weeks’ notice. Mr Fish was therefore in the position of trying to run the business in circumstances where the Office Manager and both Office Administrators had resigned given a weeks’ notice in the space of less than a month.[78]On 28 March Mrs Janes sent the Claimant her P45. She had incorrectly included the date of termination as 28 February, which reflected the date of the Claimant’s last pay, and had made an error in spelling the Claimant’s address. The Claimant emailed on 2 April complaining about those matters and requesting pay for 5, 6, 7 and 12, 13, and 14 March.[79]On 4 April Mr Fish wrote to the Claimant explaining that he was seeking to respond to the grievance but indicating that he would need some more time to respond and would be helped if the Claimant could number her complaints and identify which were the most serious so that he could address them first; he asked whether she wished to pursue the complaints in relation to Mrs Sibbit and Mr Palmer given they had each left the Respondent’s employment. He explained that his time had primarily been occupied with trying to ensure the Respondent continued to operate given the Claimant’s sudden departure.[80]Mrs Janes made the corrections and sent the corrected P45 to the Claimant on 5 April. She wrote to the Claimant to confirm that payment would be made for 5, 6, and 7 March, but only for the hours she had worked on 7 March and that no payment would be made for 12 – 14 March.[81]The Claimant had initially claimed that Mrs Janes had deliberately made the errors in the P45 because of the Claimant’s age but withdrew that allegation during the hearing.[82]She maintains the allegation that the Respondent’s decision not to pay her for her full hours on 7 March or for the 12-14 March was direct discrimination on the grounds of her age.[83]On 6 April the Claimant emailed Mr Fish, refusing to provide any further clarification of her complaints in the form requested.[84]The Claimant initiated ACAS conciliation on 28 April 2024 and a certificate was issued on 9 June 2024. She presented the claim on 15 June 2024.
The Issues
[85]The issues remain detailed in the case management order of Judge Bowen dated 24 February 2024, subject to the withdrawal of the claims for holiday pay and the discrete allegations of direct age discrimination detailed above.
The Relevant Law
[86]The Claimant brings under the Equality Act 2010 of direct discrimination (s.13 Equality Act 2010 (“EQA”).[87]The relevant law is contained in sections 13, 23 and 19 EQA 2010 which provide respectively (in so far as is relevant) as follows: 39 – Employees and applicants (2) An employer(a) (A) must not discriminate against an employee of A’s (B)— (a) as to B’s terms of employment; (d) by subjecting B to any other detriment. 13. Direct discrimination (1) A person (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 23. Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case. Section 13[88]The basic question in every direct discrimination case is why the complainant was subjected to less favourable treatment (Amnesty International v Ahmed [2009] IRLR 884, per Underhill P, para. 32).[89]Once it is established that the treatment is because of a protected characteristic, unlawful discrimination is established and the Respondent’s motive or intention is irrelevant (Nagarajan v London Regional Transport [1999] IRLR 572 HL).[90]The protected characteristic does not need to be the only reason for the less favourable treatment, or even the main reason, so long as it was an ‘effective cause’ of the treatment: O’Neill v Governors of St Thomas More Roman Catholic Voluntarily Aided Upper School and anor [1996] IRLR 372, EAT. The reverse burden of proof[91]The statutory test in section 13 EqA is subject to the reverse burden of proof in section 136 EQA 2010 which provides: (2) If there are facts on which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.[92]The correct approach to the reverse burden of proof provisions in discrimination claims has been the subject of extensive judicial consideration. In every case the Tribunal has to determine the “reason why” the Claimant was treated as he was (per Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 HL). This is “the crucial question.”[93]It is for the Claimant to prove the facts from which the Tribunal could conclude that there has been an unlawful act of discrimination (Igen Ltd and Ors v Wong [2005] IRLR 258 CA), i.e., that the alleged discriminator has treated the Claimant less favourably or unfavourably and that the reason why it did so was on the grounds of (or related to if the claim is under s.26) the protected characteristic. That requires the Tribunal to consider the mental processes of the alleged discriminator (Advance Security UK Ltd v Musa [2008] UKEAT/0611/07).[94]In Igen the court proposed a two-stage approach to the burden of proof provisions. The first stage requires the Claimant to prove primary facts from which a Tribunal properly directing itself could reasonably conclude that the reason for the treatment complained of was the protected characteristic. The Claimant may do so both by their own evidence and by reliance on the evidence of the Respondent (but not by reliance on any explanation offered by the Respondent, which can only be considered at the second stage).[95]If the Claimant does so, the second stage requires the Respondent to demonstrate that the protected characteristic was in no sense whatsoever connected to the treatment in question. That requires the Tribunal to assess not merely whether the Respondent has proven an explanation, but that it is adequate to discharge the burden of proof on the balance of probabilities that the protected characteristic was not a ground for the treatment in question. If it cannot do so, then the claim succeeds. However, if the Respondent shows that the unfavourable or less favourable treatment did not occur or that the reason for the treatment was not the protected characteristic the claim will fail.[96]The explanation for the less favourable treatment advanced by the Respondent does not have to be a ‘reasonable’ one; it may be that the employer has treated the Claimant unreasonably. The mere fact that the Claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one (London Borough of Islington v Ladele [2009] IRLR 154).[97]Furthermore, it is not sufficient for the Claimant simply to prove that there was a difference in status i.e. that the comparator did not share the protected characteristic relied upon by the Claimant) and a difference in treatment. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the Respondent had committed an act of discrimination (see Madarassy v Nomura International Plc [2007] ICR 867 CA; Hewage v Grampian Health Board [2012] IRLR 870 SC and Royal Mail Group Ltd v Efobi [2019] EWCA Civ 18.)[98]The Tribunal does not have slavishly to follow the two-stage process in every case - in Laing v Manchester City Council and anor [2006] ICR 1519, EAT, Mr Justice Elias identified that ‘it might be sensible for a tribunal to go straight to the second stage… where the employee is seeking to compare his treatment with a hypothetical employee. In such cases the question whether there is such a comparator — whether there is a prima facie case — is in practice often inextricably linked to the issue of what is the explanation for the treatment.” That approach was endorsed by the Court of Appeal in Stockton on Tees Borough Council v Aylott [2010] ICR 1278.[99]It is for the Claimant to show that the hypothetical comparator in the same situation as the Claimant would have been treated more favourably. It is still a matter for the Claimant to ensure that the Tribunal is given the primary evidence from which the necessary inferences may be drawn (Balamoody v UK Central Council for Nursing Midwifery and Health Visiting [2002] IRLR 288).
Discussion and Conclusions
[100]We turn then to consider each allegation in turn, determining first whether the factual allegation is made out, then whether the Claimant has adduced any evidence from which we could conclude, properly directing ourselves, that the Claimant’s comparator was or would have been treated more favourably. 2.2.1. The Respondent paid the Claimant a lower hourly rate of pay (£11) than her older colleague (Katrina Turton)[101]The Respondent accepts that the Claimant was paid a lower hourly rate than Mrs Turton and that Mrs Turton was older than the Claimant.[102]The following matters provide the relevant background to our assessment of this allegation. 102.1. Firstly, we are satisfied that although identical in title (Office Administrator) the Claimant’s role and that of Mrs Turton were different roles. Mrs Turton was appointed to the initially advertised role, with the consequence that an additional role had to be created for the Claimant. 102.2. Secondly, Mrs Sibbit tailored the roles according to the skills and experience of the applicants: thus, Mrs Turton’s responsibilities included a greater degree of involvement and leadership for regulatory, contractual and compliance matters to reflect her experience in HMCTS and the process the County Court. The Claimant’s role was necessarily therefore more limited to assisting with general day to administration of the Respondent’s properties and project work. We accepted Mrs Sibbit’s evidence relating to the informal moratorium which had affected such project work following the Covid 19 pandemic in 2019-20.[103]The Respondent asserts that the reason for the differential in pay was its practice of determining starting salaries pay on the basis of experience; awarding a lower hourly rate where an employee showed potential but lacked relevant experience. The Claimant asserts that the reason for the differential was solely because of her age; she argues that the advert did not specify the need for experience and that the appropriate comparator is Mrs Turton. The Claimant asserts that Mrs Turton did not have specific sector experience and that the Respondent failed to give appropriate credit for her administrative experience at the National Trust.[104]We address each of those arguments in turn. First, the job advert does identify the relevance of experience; it states, “send us a copy of your CV and a covering letter highlighting why you feel your experience would be relevant to this position” (emphasis added). This is an entry level administrative role; it is clear from that wording that experience of administrative work is necessary.[105]Secondly, we reject the Claimant’s arguments as to the relative experience of Mrs Turton and the Claimant and the relevance of that experience. Mrs Turton did have specific relevant experience of possession proceedings which was of considerable application to the Respondent’s practice of issuing possession warrants and connected applications without instructing solicitors. Further, Mrs Turton had 19 years of general administrative experience. In contrast the Claimant’s CV showed 2 years of relevant administrative experience, which she had gained some years prior to her application and appointment. We do not accept that the Claimant’s CV demonstrates that the National Trust role involved any or any significant administrative duties; it does not highlight them, and the Claimant did not suggest that she had identified them in interview to Mrs Sibbit.[106]We accept the Respondent’s evidence both as to its practice of offering a pay range depending on experience, secondly of paying at the lower end of the range where a candidate had potential but limited experience, and lastly that it was the Claimant’s lack of experience which was the determinative and only factor in the level of her starting salary. We found Mrs Sibbit and Mr Fish to be credible and honest witnesses relating to those matters.[107]The Claimant has sought to suggest that that practice is potentially discriminatory on the grounds of age. That is misconceived in this sense, such a claim would necessarily have to be pursued as a claim of indirect discrimination arguing that the PCP placed those under 30 at a disadvantage because they had less time to accrue relevant experience. If were such a claim viable on the facts of this case, which it is not, it is not the pleaded claim of direct discrimination, which is the claim we must determine.[108]As we have made a positive finding of a non-discriminatory reason for the difference in pay, it is unnecessary to apply the reverse burden of proof. The claim fails.[109]For completeness, the Claimant has not persuaded us that her role and that of Mrs Turton were not materially different at the time her starting salary was set in August 2023, such that Mrs Turton is an appropriate comparator for her claim. Even if she were, the Claimant has identified no evidence from which we could have concluded, properly directing ourselves, that the burden of proof transferred to the Respondent, to show that the reason for the difference in salary was her age. The claims would have failed on that basis. 2.2.3 Failing to award the Claimant a pay increase following a pay review.[110]The Respondent accepts that it did not award the Claimant a pay increase, but argues that the reason that it did not do so following the review in December 2023 was because she had only worked 30 days at that point and had therefore had insufficient time to demonstrate competence in relation to the general administrative functions of her role and additionally had not completed project work which had been assigned to her.[111]The Claimant argues that she had been given no targets for her work and no tangible reasons for the refusal of a pay increase. That argument is factually inaccurate: the Claimant was given project work and was told both that she had not worked for a sufficiently long period to enable an assessment of her competence to be made in December but also that she had not completed the project work which had been assigned to her. Indeed, such evidence exists in the Claimant’s own evidence in that she made references to Mr Palmer’s comments to her about the project work in her grievance and the subsequent additional details of the grievance she sent to Mr Fish. To suggest that she was given no tangible reason for the refusal of a pay increase is therefore simply false.[112]We find that the Respondent has proven that the reason that the Claimant was not awarded a pay increase in December was precisely because of those matters; indeed the Claimant did not directly challenge the accuracy of either of them: she accepts she had only worked 30 days by December 2023, she further accepts that she was criticised for not completing the project work, but argues that criticism was unjust because of IT issues and printer failure, not that it was unjust because she had completed the project work.[113]That reason has nothing whatsoever to do with the Claimant’s age.[114]The claim in respect of December is not well founded and is dismissed.[115]The Claimant was told, which she accepts, that a further review would be conducted at the end of February 2024. In the event, given the retirement of Mrs Sibbit and the unexpected resignation of Mr Palmer on 27 February the review did not take place. Without a review there can be no pay increase.[116]Furthermore, the fact of a review is not, we find, any evidence from which we could conclude that a pay rise was probable, let alone certain. The Respondent’s evidence that none of the staff, including Mrs Turton, received a pay rise or a pay review in 2024 (which was not challenged by the Claimant) demonstrates both the falsity of the argument and the extent to which the claim is misconceived. The reason that there was no pay rise in February 2024 was because there was no pay review and that was caused solely by Mr Palmer’s resignation and had nothing whatsoever to do with the Claimant’s age. 2.2.4 The Claimant was not provided with an office key.[117]It is agreed that the Claimant was not provided with an office key. The Respondent has set out its non-discriminatory reason for that decision at length in the statements of its witnesses and in its argument.[118]We find on the facts that that reason is the true reason: Mrs Turton was the first appointed to the role of Office Administrator and for that reason she was provided with a key. We found each of Mr Fisher, Mrs Sibbit and Mrs Janes to be credible and honest witnesses on this point.[119]The Claimant sought to attack their explanations by driving at what we found to be the smallest and most insignificant of differences in the various explanations given. Critically, beyond the mere fact that the Claimant did not have a key and Mrs Turton did, the Claimant did not identify any evidence from which could have concluded, properly directing ourselves, that the reason for the difference in treatment might be the Claimant’s age such that the burden of proof would transfer to the Respondent. A mere difference in treatment and a difference in status (age) is not sufficient to transfer the burden.[120]We found Mrs Janes’ evidence that neither of the previous incumbents of Mrs Turton’s role, one of whom was in her 30s (Sophie) and one of whom was in her 40s, did not have a key (Tracey) to be honest and credible and evidence which rebutted any inference that age might be the reason that the Claimant was not provided with a key.[121]The claim is not well founded and is dismissed. 2.2.6 Mr. Peter Fish sent an email on 23 February 2024 that excluded the Claimant from attending a council inspection at Clarence Court which was to be held on 15 March 2024.[122]The Claimant relies on Mr Palmer and Mrs Turton as actual comparators.[123]The Respondent accepts the facts of the allegations.[124]The Respondent argued that the following factors were the nondiscriminatory reasons for Mr Fish’s decision to invite Mr Palmer and Mrs Turton to attend the inspection: 124.1. Mrs Turton had primary responsibility for administration of compliance, regulatory and contractual aspects of the property maintenance. 124.2. Mr Palmer was to take over the Office Manager role from Mrs Sibbit and therefore needed to have a good understanding of the nature, practice and issues at such inspections.[125]The Claimant asserted that the explanations were not cogent and that the Respondent was seeking to rely on an unevidenced distinction between the roles of Mrs Turton and the Claimant, when in reality each was conducting the same role, particularly if not more so when the Claimant had had her project work removed from her, which she argued gave further force to her point.[126]We have already found both that there was a valid and genuine distinction between the roles of Mrs Turton and the Claimant and their focus, one having been created after the other, and that there was evidence in the form of contemporaneous documents and minutes which supported the Respondent’s witnesses’ account of that distinction. We accept therefore that Mrs Turton had primary responsibility for administration of compliance, regulatory and contractual aspects of the property maintenance. The Claimant was primarily involved in day-to-day administration and had some project work. Consequently, we find the Respondent’s distinction between the roles to be both valid and evidenced.[127]Critically, however, first Mr Palmer was and is not an appropriate comparator; he was the Office Manager who had been in post for less than two months, the Claimant was an office administrator. The two roles are not comparable. Furthermore, the nature of Mr Palmer’s role points to the reason for the difference in treatment: it is obvious that if the manager did not have experience of the inspections, he would require it in his senior role. The Claimant has not sought to challenge that argument that with any force.[128]Secondly, we found Mr Fish’s evidence as to the reason why he selected Mrs Turton rather than the Claimant to be honest, candid and lacking in guile. In particular, during his evidence to us he made the points we have recorded above as to Mrs Turton’s compliance focus, but ultimately said that the reason he invited Mrs Turton and not the Claimant was because he knew that the inspection was on a Friday when the Claimant worked for the National Trust and he believed that she could not therefore have attended in all likelihood. We accept that as the genuine reason for his decision. It is not related to the Claimant’s age. We note also that Mr Thorn did not address this allegation at all with Mr Fish in cross examination, rather he veered away from suggesting that the reason for the decision was the Claimant’s age. This was not just a case where the Claimant’s pleaded case was not put with much force on this point in the hearing; it was not put at all.[129]The claim is not well founded and is dismissed. 2.2.8 The Respondent ignored the Claimant’s complaints which were submitted between 5 March and 6 April 2024.[130]There is a dispute as to whether the Respondent did in fact ‘ignore the complaints’ as alleged. Here the chronology we have detailed in our findings as to the history of the complaints and their investigation is telling. We do need to repeat it verbatim here, the reader is referred to it.[131]It is apparent however, that Mr Fish acknowledged the Claimant’s grievance verbally on 7 March, confirmed that he would investigate her concerns, and was told by the Claimant that she would provide some further details, which she did late in the day on 10 March. Mr Fish was then in Spain, and it was clear that there were four members of staff who needed to be spoken to ascertain their accounts concerning the complaints. Mr Fish returned to the country on 13 March but his efforts were then primarily required with the business of the Respondent to ensure that it could continue to operate. The Claimant resigned 3 days later, on 16 March 2024.[132]It is entirely unrealistic and unreasonable, in the Tribunal’s industrial experience, to expect or require that such an investigation, involving allegations of bullying and age discrimination which had been levelled at four employees, could or should reasonably have been completed within three days of the details being provided. Such an expectation, if genuinely held by the Claimant, is absurd. We are entirely sure that had the investigation been conducted in that time, the Claimant would then have complained that the Respondent had not engaged with the allegations, had not conducted any or any reasonable investigation, and that the outcome was a fait a compli. It is nothing to the Claimant’s credit that she argues that the Respondent ignored her complaints or did not conclude the investigation within three days, and that such a ‘failure’ was unreasonable.[133]The Claimant argues that the Respondent has produced no evidence of its investigation; but that is not the Claimant’s pleaded allegation (i.e. that the Respondent undertook no investigation), rather the Claimant alleges that the Respondent ignored the complaints. On the facts we unhesitatingly find that that factual allegation is not made out: Mr Fish acknowledged the complaints, said he would investigate, received further details, asked for sensible clarification from the Claimant as to which of them were the most serious and, again sensibly, whether the Claimant truly wished to pursue allegations in respect of Mr Palmer and Mrs Sibbit who had then left the Respondent’s employment.[134]The allegation fails factually, but even were the allegation that the Respondent had not provided an outcome to the grievance by 16 March, we would have found that the reason was the chronological events we have detailed above, and that the Claimant had adduced no evidence from which we could have concluded that the reason was the Claimant’s age. All of the available evidence identifies the very short period of time between the Claimant first raising the complaint, the Claimant’s expansion of the grounds of complaint, and her resignation, viewed in the context of the nature of the complaint itself, as the reason why there was no outcome reached within the period. None of those factors relate to or suggest any connection to the Claimant’s age. We are entirely satisfied that had an older employer made similar complaints in similar fashions at similar times, the result would have been identical.[135]This allegation is not well founded and is dismissed. 2.2.9 Mrs Turton and Mrs Janes were not supportive of the Claimant on 7 March 2024 in relation to her decision to attend an inspection at Clarence Court when it was rescheduled but were instead critical of her.[136]The Respondent does not dispute that the Mrs Janes and Mrs Turton were critical of the Claimant, but it does not accept the context relied upon by the Claimant in support of the allegation.[137]For the reasons we have given in our findings above, we do not find the Claimant’s account of the events of the 6 or 7 March honest, accurate or plausible in so far as that account was given in answer to questions. Rather we have found that the events occurred as we have recorded.[138]In those circumstances, we have concluded that the reason for Mrs Turton’s and Mrs Janes’ criticisms of the Claimant was her unilateral decision to include herself within the rescheduled inspection because of her desire to witness it, without due or appropriate regard for the tenant’s welfare, and her failure to discuss that decision with Mrs Turton before making it. Neither of those reasons relate to the Claimant’s age; we are entirely satisfied that had an employee in their 40s or 50s acted in that manner, Mrs Turton and Mrs Janes would have responded in precisely the same way.[139]The Claimant has adduced no evidence from which we could conclude, properly directing ourselves, that they would have reacted to an older hypothetical comparator in a more favourable way. The Claimant again relies upon her status as a young employee and makes the broad assertion without any evidential basis for it.[140]This allegation is not well founded and is dismissed. 2.2.11. The Respondent failed to pay the Claimant the correct amount of pay in her final payslip[141]The Respondent disputes that it underpaid the Claimant; it asserts that the Claimant was not entitled to additional pay for 7 March or and pay for periods after that. The Claimant asserts that she was.[142]The agreed facts are that the Claimant did not work after 10:30am on 7 March, did not obtain authorisation to leave work, and did not make herself available to work again prior to her resignation.[143]The Respondent asserts that the Claimant was not paid because of those matters. Their account is supported by the contemporaneous letter of Mrs Janes to the Claimant on 5 April 2024.[144]The Claimant appears to assert that because she had raised a grievance and was awaiting a response to it, she was exempted from the contractual obligation to make herself available to work to receive pay. She has identified no term of the contract whether express or implied which would create such an obligation on the Respondent or an exemption on the Claimant. She did not submit fit notes suggesting that she was unfit to work during that period.[145]Lastly the Claimant argues that we should draw an inference from the fact that she was (on her assertion) paid less than Mrs Turton on the grounds of her age, that this decision was also less favourable treatment on that ground. We have rejected that argument in relation to the earlier claim.[146]The Claimant has adduced no evidence from which we could conclude, properly directing ourselves, that the Respondent would have paid an older hypothetical comparator in those circumstances. The Claimant again relies upon her status as a young employee and makes the broad assertion without any evidential basis for it.[147]We accept that Respondent’s explanation for the non-payment as being the true one; it is not tainted by age.[148]The claim is not well founded and is dismissed. Unauthorised deduction of wages[149]The Claimant relies upon the same factual matrix for her claim for unpaid wages in relation to the period of 7, 12, 13 and 14 March 2024. The Respondent defends them on the same factual basis as detailed above.[150]For the reasons we have given above, the claims are not well founded and are dismissed.
Conclusion
[151]None of the claimant’s claims are well founded; they fail and are dismissed. Approved by