Ms C Van Vliet v Footlaffs Ltd (formerly known as Time to be Me Ltd) (struck off) and others: 1401617/2024 Ms C Van Vliet v Footlaffs Ltd (formerly known as Time to be Me Ltd) (struck off) and others: 1401617/2024
EMPLOYMENT TRIBUNALS
Case No 1401617/2024
Between
Ms C Van VlietClaimant(1) no appearance (2) in person (3) no appearance (4) in personRespondent
Before
Employment Judge Mr J S BurnsDate 30 July 2026
JUDGMENT
[1]The claims of(i) wrongful dismissal (notice pay)(ii) unauthorized deduction from wages(iii) detriment contrary to section 47E ERA 1996(iv) discrimination arising from disability(v) failing to make reasonable adjustments for disability and(vi) victimization succeed, against the Second and Fourth Respondents.[2]The claims of(i) automatic unfair dismissal contrary to section 104C ERA 1996 and(ii) direct discrimination contrary to section 13 EA 2010 fail and are dismissed.[3]The total award is £32237.30[4]The Second and Fourth Respondents jointly and severally must pay the Claimant the sum of £20160.55 by 13/8/2026 and the appropriate balance of the total award (if any) immediately after the requirements of the recoupment provisions have been complied with. (See paragraph 74 of the Reasons)
REASONS
[1]The claims and issues were set out in the Schedule to EJ Bax’s CMO dated 3/4/2025. The claims are about the termination of the Claimant’s employment by the First Respondent in May 2024.[2]On 4/9/2024 the First Respondent was wound up and no longer exists.[3]On 26 June 2026 the Third Respondent was placed in voluntary liquidation. In the case of voluntary liquidation, the liquidator has to make an application under section 112 Insolvency Act 1986 to stay proceedings otherwise they can continue. No such application has been made so the proceedings can continue against the Third Respondent. However, as that company was neither involved in the Claimant’s dismissal nor a relevant TUPE transferee it cannot be liable for the claims.[4]The Claimant relied on menopausal symptoms as a disabling impairment. On 13/6/2025 the Respondents (who then did not include the Fourth Respondent) filed Amended Grounds of Response in which it was admitted in paragraph 36 that the Claimant was disabled at the relevant time. This was repeated in an email dated 29/7/25 from Peninsular (then the Respondent’s representatives). The Fourth Respondent was joined as Respondent in or about September 2025 by EJ Midgley. The Fourth Respondent was not directed to nor did he file separate Grounds of Resistance, but relied on the same defences as R2 and R3 and he did not indicate that he took any different view as to the Claimant’s disability. Peninsular continued to represent the Second, Third and Fourth Respondents until a few weeks ago when they came off the record. The Fourth Respondent failed to deal with the disability issue at all in his witness statement. I regard him as bound by or estopped from denying that he is bound by the concession of disability contained in the other Respondent’s pleadings, which he has been willing to treat and has been allowed to rely on as his own. If I am wrong in so doing, in any event I would have found for purposes of the claim against him (and on the basis of the Claimants oral and witness evidence) that the Claimant was indeed disabled as she claims at the relevant time. 5. in March 2026 the Claimant and the Fourth Respondent served witness statements for the final hearing. No witness statement was produced by the Second Respondent.[6]On 27/7/2026 EJ Livesey refused the Second Respondent’s application to postpone the final hearing. She renewed her application today - having sent yesterday to the Tribunal (but not to the Claimant) a message stating that she is suffering anxiety and PTSD, and is receiving treatment, that she has not really worked in the business of the Third Respondent this year, and that she was never asked by her previous legal advisors to prepare a witness statement, and she wishes to have more time to prepare one.[7]I decided not to postpone or adjourn, as the application was made late. No medical or psychiatrist report has been produced to say that the Claimant cannot participate in a hearing. Even if she could not, there was no prognosis as to when she would be able to, so I saw little to be gained by waiting. The Tribunal gave a clear direction that witness statements must be prepared and exchanged months ago, (with a warning about negative consequences if there was no compliance) and the Fourth Respondent, (her husband and co-director) was clearly aware of this requirement because he served a witness statement for himself. Even if the Second Respondent was ill, it is likely that she could have prepared a witness statement and served it, in which case I could have read it, even if she was unwilling to appear to be cross-examined. The Claimant was dismissed on 31/5/24 so the claims are already stale and it was not in the interests of justice to delay the final hearing which has been listed for over a year.1[8]The parties had prepared a 400-page (paper) bundle. Each had a copy but neither had uploaded an electronic version to the Tribunal, nor could they send it to me electronically. Mr Hunter had posted a paper copy to the Southampton Tribunal hearing venue but the hearing was being held remotely and I was not there, even if the bundle was. However, both Mr Hunter and the Respondents confirmed that they needed to refer during the FMH to only one document from the bundle, namely the flexible working request dated 20/5/24 (which was able to be sent to me separately). Having discussed with the parties the issues 1 After I refused the adjournment, the Second Respondent attended the final hearing and participated in crossexamining the Claimant and in making her own final submissions with some skill and at length. (which in my view were unlikely to be ventilated much by the contents of the bundle as they were described to me), and so as to avoid an adjournment, I decided to proceed without it and to decide the case on the basis of the evidence before me. After hearing all the evidence and before receiving final submissions I gave the parties an opportunity to email me any particular documents they wished me to examine which I had not seen during the hearing. Both sides said they did not need or wish to do so.[9]I heard evidence from the Fourth Respondent based on his short witness statement dated 8/2/2026. He said he had little to do with the relevant decisions about the Claimant’s employment and its termination. I then heard from the Claimant based on her undated witness statement of 40 pages. I also received a written opening/skeleton argument from Mr Hunter and a key-persons list and counter-schedule from the Second and Fourth Respondents. I received oral final submissions from the Claimant and then from the Second and Fourth Respondents.
Findings of fact
[10]The Claimant was employed by the First Respondent as a Senior Aesthetic Therapist from June 2022 until 31 May 2024 in business premises in Petersfield in Hampshire.[11]She worked in a specialist role involving advanced aesthetic treatments and expensive equipment.[12]The Claimant was aged 48 years at the time of dismissal and was a single parent with a 12-year-old son.[13]From 2022 onwards she experienced significant perimenopausal/menopausal symptoms including migraines, hot flushes and recurrent urinary tract infections, which worsened through 2023 and early 2024.[14]She discussed her menopausal symptoms directly with the Second Respondent in April 2024 and had discussions concerning HRT.[15]On 10 May 2024 she went off sick for one day because she could not cope with her symptoms.[16]On 20 May 2024 she sent an email to her line manager at the First Respondent (copied also to the Second Respondent) which was entitled “STATUTORY REQUEST FOR FLEXIBLE WORKING”. Relevant parts of it read as follows: “I would like to ask for this request to get a better work and family balance. I have also recently started going through the menopause which has really affected me, especially working the later shifts…I would like to change my current working arrangements by varying my current hours as follows: (she then set out her existing shift pattern and her proposed new shift pattern)…I would be happy to agree a three month trial period from 1st June ..”[17]On 22/5/2024 the Claimants line manager replied “thanks for your email. I will discuss with Karen and be in touch” but the Claimant heard nothing more about this request.[18]On 30/5/24 the Claimant received an email from a manager “Hi Chantelle, I’ve taken you off the rota tomorrow as you have no clients”. This was untrue as the Claimant did have clients that day.[19]On 31 May 2024, all the First Respondents staff were dismissed for redundancy. A large majority of the staff (including all the other therapists doing the aesthetics work), were offered new contracts so their employment could continue seamlessly with a phoenix business run by the Second and Fourth Respondents under the name “Time To Be Me”. and which, a month or so later, was incorporated as the Third Respondent.[20]The Claimant and a few other former members of staff were not offered re-employment[21]The Claimant was told by the Second Respondent simply that she was dismissed by reason of redundancy. No explanation was given at the time why she (the Claimant) had not been offered re-employment.[22]On 5/9/25 EJ Midgley determined that “1. There was a transfer of an undertaking pursuant to Regulation 3(1)(a) of The Transfer of Undertakings (Protection of Employment) Regulations 1996 from the First Respondent on 31 May 2024 to Mr Dodds and the Second Respondent Trading as ‘Time to Be Me’ 2. The Claimant was employed immediately before the transfer and was assigned to the organised grouping of employees that were subject to the relevant transfer. 3. The Claimant’s employment was preserved pursuant to Regulation 4(1). 4. The sole or principal reason for the Claimant’s dismissal was the transfer so that the Claimant should be treated as being employed immediately before the Transfer pursuant to Regulation 7(1).”
Conclusions
[23]The 3/4/2025 list of issues identified the claimed less favourable/unfavourable treatment/detriment for purposes of the section 13, 15 and 27 Equality Act 2010 claims as the Claimant’s dismissal. In fact, the cause of the dismissal was the TUPE transfer (per the EJ Midgley judgment) and not any of the protected characteristics relied on under section 13, nor by something arising from the Claimant’s disability under the section 15 claim, nor by a protected disclosure in the victimisation claim. However, the matter does not end there. All staff were dismissed in the ordinary (non TUPE) sense of the word but the Claimant’s dismissal became permanent because of the omission (hereafter referred to as “the relevant omission”) to offer the Claimant a renewed contract with the emerging Third Respondent. I do not think it causes any forensic prejudice to the Respondents to amend the list of issues to the extent necessary so as to identify that omission as the less favourable/unfavourable treatment/detriment claimed under those sections, so that is what I have done. Automatically unfair Dismissal (Employment Rights Act s. 104C)[24]According to EJ Midgley’s TUPE judgment the sole or principal reason for the Claimant’s dismissal was the transfer. Hence the sole or principal reason cannot have been the making of any application for flexible working within the meaning of section 80F of the Employment Rights Act 1996. Furthermore, all the First Respondents staff (including all the others who had not made any flexible working requests) were dismissed by the First Respondent at the same time as the Claimant. The mischief done to the Claimant was the relevant omission, which is not suitable subject matter for any unfair dismissal claim. Hence the requirements of this claim are not made out and it fails. Detriment (Employment Rights Act 1996 section 47E)[25]The Claimant made an application for flexible working within the meaning of section 80F of the Employment Rights Act 1996. Her email of 20/5/2024 complied with the minimum requirements of the section at that time.[26]The facts set out above create a prima facie case that the application caused the relevant omission, which was a detriment for the Claimant.[27]Section 48(2) ERA 1996 provides that in a complaint about detrimental treatment it is for the employer to show the ground on which any act or deliberate failure to act was done.[28]The Second Respondent, who made the operative decisions, failed to give evidence and there is no or very little evidence before me to prove any alternative explanation other than the making of the application.[29]Bare assertions about redundancy have been made but no detail of this or of any other financial, operational or other non-discriminatory reasons for the relevant omission have been placed before me. Even if there was a redundancy situation, which is not proved, it is not shown by the Respondents that there was a lawful reason for the Claimant’s (rather than the other aesthetic therapists’) selection.[30]This claim succeeds. Direct age, disability or sex discrimination (Equality Act 2010 section 13)[31]Section 13 EA provides that a person discriminates against another if because of a protected characteristic, he treats another less favourably than he treats or would treat others.[32]The reason for the relevant omission was the making of the flexible working request and not the Claimant’s age, disability or sex, per se. This claim fails. Discrimination arising from disability (Equality Act 2010 section 15)[33]Section 15 Equality Act 2010 provides that a person discriminates against a disabled person if A treats B unfavourably because of something arising in consequence of Bs disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.[34]The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.”[35]An employer has a defence to a claim under s. 15(2) EqA if it did not know, or could not reasonably be expected to know, that the employee had a disability.[36]The flexible working request arose at least in material part from the Claimant’s disability, which is referred to in terms in the request.[37]Section 136 Equality Act 2010 provides that it there are facts from which a court could decide, in the absence of any other explanation that a person has contravened a provision under the EA, the court must hold that the contravention occurred, unless the person shows that he did not contravene the provision.[38]The Claimant has adduced facts (set out above) which pass the burden of proof to the Respondents (as contemplated by this section) of proving that the making of the request was not a significant reason for the relevant omission.[39]The Respondents have failed to discharge that burden.[40]The Respondents had at least constructive knowledge of the fact that the Claimant had her disability.[41]This claim succeeds. Reasonable Adjustments (Equality Act 2010 ss. 20 & 21)[42]Section 20(1)(3) provides that where a provision criterion or practice (PCP) of A’s puts the disabled person concerned at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, it is the duty of A to take such steps as it is reasonable to have to take to avoid the disadvantage.[43]Para 20(1) of Part 3 of Sch 8 provides that there is no duty to make adjustments if the employer does not know and could not reasonably be expected to know both that a disabled person has a disability and is liable to be placed at the disadvantage.[44]It is not necessary that the employer know the exact diagnosis or cause of the impairment or that each and every element of the definition of a disability is satisfied at the time. The point at which an employer will be found to have actual or constructive knowledge will depend on the particular facts including such matters as to the extent of any sickness absences, what the employee has told the employer, and what other pertinent information is within the knowledge of relevant managers or other relevant officers of the employer.[45]The Respondent had a PCP of requiring staff to work shifts as directed; which placed the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that she was unable to work the late shifts due to fatigue, confusion and brain fog. It would have been reasonable for the Respondents to allow the Claimant to change her shifts; as her request was modest and sensible, and to allow her to continue in employment so she could test out the new shifts as she had proposed. The Respondents had at least constructive knowledge of the Claimant’s disability and they breached the RA duty, so this claim succeeds. Victimisation (Equality Act 2010 s. 27)[46]Victimisation occurs where the victimiser subjects another to detriment because the other has done a protected act or the victimiser believes the other has done or may do a protected act. A protected act is defined to include bringing proceedings under the EA or giving evidence in such proceedings or doing anything in relation to the Act or alleging a breach of the Act. A detriment is an act or omission by the employer which would cause an employee to have a legitimate sense of injustice- in other words- treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment[47]The flexible working request was in substance a request for a reasonable adjustment for disability and so was a thing done in relation to the Equality Act 2010 which creates the RA duty. Hence the request was a protected act. The Respondents have failed to show that the relevant omission was not caused by the said act. This claim succeeds. Unauthorised deductions (Part II of the Employment Rights Act 1996)[48]The Claimant was owed and not paid wages for the period 26/4/24 to 31/5/24 in the sum of £3227.60. It is admitted that this sum is due. The claim succeeds in that amount. Notice pay[49]The Claimant was owed and not paid one week’s notice pay. I accept her evidence that her net pay was £2212.80 per month. That equates to £510.64 per week. The claim succeeds in that amount. Basis of liability[50]The Second and Fourth Respondents are liable for all the claims which have succeeded because of the fact that the said respondents were TUPE transferees and hence were the recipients of the liabilities of the First Respondent, by virtue of the effect of TUPE Regulations 4(1)(2) and (3) and 7(1). Remedy Financial losses caused by the detriment/discrimination
Remedy
[51]The Claimant has worked as a beauty and aesthetics therapist for over 20 years. Apart from a period of maternity leave in relation to the birth of her son many years ago, she has never experienced any period of unemployment and has found work easily in her chosen field with different employers both in and outside London.[52]Prior to her dismissal and while working for the First Respondent the Claimant was already doing some self-employed work for a few private clients near her home in Chichester.[53]After her dismissal she decided not to seek further employment with another employer similar to the First Respondent, or at all. Instead she decided to expand her self-employed business as she has done subsequently.[54]I accept the evidence of the Fourth Respondent that there are at least 3 other beauty/aesthetics businesses in Petersfield and a large number (perhaps 40) in Hampshire as a whole.[55]The Claimant was able to and did carry on working forthwith after her dismissal and, had she been so-minded, she easily would have found replacement work for at least the equivalent salary she had enjoyed with the First Respondent, by no later than 6 months after dismissal.[56]She chose to set up a self-employed business which has the potential to offer her a higher income and other advantages in comparison with employment in the medium term, although so far it has not done so, at least insofar as income is concerned.[57]In these circumstances I find that the damages for financial loss caused by the discrimination and detriment should be limited to the period of 6 months following dismissal, because the Claimant has failed to mitigate thereafter and has caused her own loss by her decision to develop a self-employed business at the expense of obtaining replacement salaried employment. .[58]I accept the Claimant’s calculations of her loss of salary in paragraph 39 of her witness statement. The total net loss of income during the months June to November 2024 inclusive amounts to £2451.50 + £1569.93 + £2196.20 +£1148.80 +£1818.32 + £1927.52 = £11112.27. To this must be added interest at 8% pa from the half way date namely 29/06/2025 to 29/7/26. The interest is £964.48 and the total amount under this head is £12076.75. Injury to Feelings[59]The Claimant claimed that the dismissal had a severe emotional impact on her including loss of confidence, distress, difficulties in family life and daily functioning; and impact on her professional confidence and career. She attributes those effects both to the dismissal itself and to the way in which it was carried out.[60]The Claimant after dismissal continued to suffer menopausal symptoms and sought medical help for that but notably did not seek or obtain any medical or other professional help for any depression or other mental health issue. She has not taken any medication or received any counselling for any such problems.[61]There is no formal diagnosis of any personal injury which has been caused or aggravated by the Respondents.[62]Insofar as impact on her professional career is concerned, the Claimant continued working without a break after her dismissal, and has succeeded in building up what appears to be an expanding self-employed business.[63]The claims about the impact of the detriment and discrimination are exaggerated and the sums claimed as damages on her behalf are disproportionate and excessive.[64]Although various heads of claim have succeeded they all relate to the same thing which was a single isolated event the seriousness of which I would normally have placed at the top of the lower Vento band.[65]However there are some mildly aggravating features namely(i) the manner of the dismissal which was sudden and summary,(ii) the fact that the Claimant was not given any reason at the time for her singling out for exclusion from re-employment, and(iii) the failure to pay the Claimant her last month’s salary and notice pay, which was somewhat callous and inconsiderate and which placed the Claimant at short notice in a situation in which she had not only lost her job but was out of pocket regarding her salary for the previous month.[66]In addition, to make matters worse, the Respondents incorrectly told HMRC in the months following that the Claimant had been paid her wages for May 2024,which misinformation complicated and delayed a claim for universal credit which she made after her dismissal. However, I accept that this misinformation was not given deliberately and that at the time the Fourth Respondent was trying to cope with various pressing family and business problems.[67]There has been no apology but the Second and Fourth Respondents have been defending the case, as they were fully entitled to do without making admissions of liability, and they did not until receiving my judgment on liability have any reason to think they have anything to apologise for.[68]I accept that it has been annoying and difficult for the Claimant and Mr Hunter to deal with numerous changes of personnel while the Respondents were represented by Peninsular, but that is a factor which goes to the conduct of the litigation and not to the seriousness or effect of the underlying causes of action.[69]For these reasons and in all the circumstances I assess the damages for injury to feelings at £14000, which is towards the lower end of the middle Vento band applicable in May 2024.[70]To this must be added interest at 8% from 31/5/2024 to 29/7/2026. The interest is £2422.31 and the total award under this head is £16422.31 Other claims[71]I have taken note of the guidance in in HM Land Registry v McGlue [2013] Eq.L.R.701 but in this case a separate aggravated damages award is uncalled for. I have considered and taken into account the factors which Mr Hunter relies on in this regard in fixing the Vento award above.[72]The claim for a separate award for personal injury is not made out.[73]Mr Hunter raised but sensibly ultimately did not pursue any claim for an uplift for any breach of ACAS codes. In the counter-schedule the Second and Third Respondents suggested that there should be a discount because the Claimant did not raise a grievance. In fact the correct step she might have taken would be to appeal the decision not to re-employ her but she was not offered an appeal. Given her treatment by the Respondents, it was not likely that she would do either. No uplift or discount is appropriate. Summary of sums due Unpaid wages £3227.60 Notice pay £510.64 Loss of earnings £12076.75 Injury to feelings £16422.31 Total £32237.30 Recoupment[74]The recoupment provisions apply. The Claimant received universal credit. Her NI number is JZ690843D. The prescribed period is 31/5/24 to 30/11/24. The prescribed amount is £12076.75. The difference between the prescribed amount and the total award is £20160.55. J S Burns