Mr J Dignam v The Cracking Egg Company Ltd: 1404978/2018
EMPLOYMENT TRIBUNALS
Case No 1404978/2018
Between
Mr J DignamClaimantThe Cracking Egg Company LtdRespondent
Before
Employment Judge Balogun
Members
Mr G MannMrs H CarterMr P Neal (instructed by Lay representative) for claimantDate 8 February 2022
JUDGMENT
[1]The claim of constructive unfair dismissal succeeds.[2]The claim of direct disability discrimination and discrimination arising in consequence of disability pursuant to sections 13 and 15 respectively of the Equality Act 2010 succeed.[3]The wrongful dismissal claim succeeds[4]All other claims fail and are dismissed.[5]The matter is listed for a 1 day remedy hearing on 29 November 2021. Case No: 1404978/2018
REASONS
Conclusions
[1]These are the written reasons for the Tribunal’s Judgment dated 2 July 2021 and sent to the parties on 7 July 2021, upholding the claims of constructive unfair dismissal, wrongful dismissal, and disability discrimination pursuant to sections 13 and 15 of the Equality Act; and dismissing all other claims.[2]By a claim form presented on 4 December 2018, the claimant brought complaints of constructive unfair dismissal; wrongful dismissal; disability discrimination and failure to give written reasons for dismissal. All claims were resisted by the respondent. Application to amend claim
The Issues
[3]At the start of the hearing, the tribunal heard the claimant’s amendment application. The application, made on 27.4.21, was to add 4 fresh allegations of discrimination. These are set out at paragraphs d-g of the application. This was opposed by the respondent.
The Law
[4]After hearing arguments from the parties and having considered the factors in Selkent Bus v Moore [1996] IRLR 661, the application was refused. The claimant claimed the amendments arose because of documents that came into his possession on 20.12.18. This was a couple of weeks after his original claim was presented and 28 months before the application to amend was made. The claimant had ample opportunity to make his application earlier. There have been a number of case management hearings in this case, in particular, one on 11 June 2019, at which the issues in the case were identified. That would have been an ideal opportunity to raise these additional matters. The claimant has not provided an adequate explanation for not doing so. Turning to the balance of prejudice between the parties, we consider that this weighs against granting the application. Requiring the respondent to respond to fresh allegations so late in the proceedings and many years after the original events would be highly prejudicial. On the other hand, denying the application would not deprive the claimant of a remedy as he had a number of extant discrimination claims.[5]The claimant gave evidence. We also heard on his behalf from Richard Neal (RN) the claimant’s civil partner. On behalf of the respondent we heard from Chris Rance (CR) Director; Rory Bartlett (RB) Operations Manager and; Rebecca Plank (RP) Manager. We were provided with a bundle of documents from the respondent running to The respondent provided an electronic bundle of documents running to over 909 pages. The claimant provided a separate bundle running to 226 pages. References in the judgment in square brackets are to the pdf numbers from the respondent’s bundle unless indicated otherwise by the prefix “C”, in which case it is the claimant’s bundle.
The Issues
[6]The issues are set out at in the case management summary of EJ Gray dated 11.6.19 and are referred to more specifically in our conclusions [ 59-62 ] The Law Constructive dismissal[7]Section 95(1)(c) of the Employment Rights Act 1996 (ERA) provides that an employee shall be taken to be dismissed by his employer where the employee terminates the contract, with or without notice, in circumstances in which he is entitled to do so by reason of the employer’s conduct.[8]The case; Western Excavating Limited v Sharp 1978 IRLR 27 provides that an employer is entitled to treat him or herself as constructively dismissed if the employer is guilty of conduct which is a significant breach of the contract or which shows that the employer no longer intends to be bound by one or more of its essential terms. The breach or breaches must be the effective cause of a resignation and the employee must not affirm the contract.[9]The case: Malik v Bank of Credit and Commerce International SA 1997 IRLR 462 provides that the implied term of trust and confidence is breached where an employer, without reasonable or proper cause, conducts itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Direct Discrimination[10]Section 13 Equality Act 2010 (EqA) provides that: A person(a) (A) discriminates against another(b) (B) if because of a protected characteristic, A treats B less favourably than A treats or would treat others. Indirect Discrimination[11]Under section 19 EQA, where A applies a provision, criterion or practice (PCP) to B , it is discriminatory in relation to the protected characteristic (in our case disability) if:a. A applies or would apply the PCP to persons who do not share B’s disabilityb. It puts or would put persons with B’s disability at a particular disadvantage compared with persons not of having his disability.c. A cannot show that the PCP is a proportionate means of achieving a legitimate aim. Discrimination arising in consequence of disability[12]Section 15 of the EqA provides that a person(a) (A) discriminates against a disabled person(b) (B) if – a) A treats B unfavourably because of something arising in consequence of B’s disability, and b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.[13]Under the Code of Practice on Employment, the definition of something arising in consequence of employment includes anything which is the result, effect or outcome of a disabled person’s disability. Failure to make reasonable adjustments[14]Section 20 EqA provides that where a person (A) applies a provision, criterion or practice (PCP) which puts a disabled person 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.[15]Section 21 EqA provides that a failure to comply with a section 20 duty constitutes discrimination against a disabled person. Findings of Fact[16]The claimant was employed as a support administrator at Esquire Coffee Shop (the Coffee Shop) which was a franchise initially owned by a company called Medina Management Ltd. The directors of the company were Andrew Bevington and RN, the claimant’s civil partner. Andrew Bevington resigned as a director in August 2014.[17]The claimant’s role involved serving beverages and snacks, cleaning, ordering and other administrative tasks.[18]The claimant’s contract of employment dated 8 May 2015 provided for normal working hours of 16 per week. [C14][19]The claimant has Type 1 diabetes and this requires him to inject himself regularly with insulin. The respondent has conceded that at the relevant time, the claimant was disabled pursuant to section 6 EqA. Due to his diabetes, the claimant found working beyond 12.30pm difficult and so was routinely placed on the early morning shift. When he felt able to, he sometimes worked additional hours in the afternoon, though those hours were not guaranteed.[20]In December 2017, Medina Management Ltd went into administration and the franchise was taken over by Awesome Coffee Limited on 2 February 2018. RN was the sole director and owner of Awesome Coffee Company so the coffee shop effectively remained in the same hands.[21]On 2 July 2018, the franchise was sold to the respondent. The respondent accepts that the transaction was one to which the TUPE regulations applied though they contend that the claimant did not transfer. The respondent’ position in the ET3 response, and one which they maintained up to the hearing was that the claimant had agreed not to transfer.[22]In May 2018 as part of the pre-contract negotiations, there was a meeting between RN, CR and RB. The events of that meeting are in dispute. CR and RB contend that at that meeting, RN told them that the claimant would be leaving the business with him upon the transfer. The claimant was not present at this meeting yet the respondent contends that this amounted to him exercising his right to object to the transfer pursuant to regulation 4(7) of the TUPE regulations. RN does not accept this account and denies making any such statement about the claimant’s continued employment. RN contends that he supplied them with details of his employees, including the claimant, and RB wrote them down.[23]The sale agreement between the parties dated 2 July 2018 contains within schedule 1 a list of employees transferring to the respondent. It lists 8 employees in total and the second name on the list is the claimant’s [555]. The sale agreement was signed by CR. The respondent contends that the claimant’s name was included in error. We do not accept this. The respondent was represented in relation to the purchase by Terry Fendt of Sherrards Solicitors [497] The agreement would have been have been scrutinized, by the solicitors and if there had been an error, CR would have drawn it to the solicitors’ attention and it would have been corrected.[24]In his oral evidence, RB said that he had a conversation with RP, in early June and that they discussed the staff individually. RP had worked at the café since 2014 and was to take on the role of manager upon transfer. When asked whether they discussed the claimant, RB said that he could not recall. He then changed his evidence and said that he believed he told RP that the claimant would not be transferring. We do not accept that evidence. It is not in RB’s statement or that of RP. RP also made no reference to it in her oral evidence either.[25]At paragraph 16 of her statement, RP says that on 2 July, the day of the transfer, she was asked by RB to re-do the rota and to deploy the staff team. The claimant was on the rota. If she had been told that the claimant was not transferring, she would not have added him to the rota. Equally, RB would have instructed her to remove him from the rota, which he did not do.[26]On 29 June, RB sent an email to RN, cc’d to all transferring staff asking them to provide ID on Monday so that they could be set up on the payroll. The claimant was included in the distribution list. [C38][27]At paragraph 17 of his statement, RB says that he met with the claimant on 3 July [ the day after the transfer] to inform him of his working schedule. The claimant informed RB of his diabetes and that he was restricted to working until 12.30pm each day due to fatigue. The claimant says the conversation took place on 2 July but either way, it is inconsistent with him not transferring.[28]Later that afternoon the claimant went home unwell and subsequently sent in a sick note and requested a meeting. That sick note identified the claimant’s condition as Anxiety and Gastric ulcer and signed him off until 6 August 2018 [ 565 ] On 11 July, RB responded stating that he was happy to meet with the claimant and also stating that his role had not changed. That is inconsistent with him not having transferred [564-566][29]RB met the claimant on 20 July and made a note of their discussion. He records at the end of the note that the claimant will be fit to return on 6 August as per doctor’s note [570] That is inconsistent with the claimant not having transferred.[30]For all the above reasons, we prefer the account of RN and find on balance of probabilities that he did not inform the respondent that the claimant would be leaving the Coffee Shop.[31]It is worth noting that even if we had found otherwise, the respondent could not have relied on this as the claimant objecting to the transfer. Any objection had to come from the claimant himself and the respondent accepts that they did not receive any objection from him.[32]Returning to the 2 July, at 19:02, RP emailed the staff with the rota for the following day’s shift. The claimant was put on a shift from late morning shift/mid-afternoon shift, which was not his normal shift. RP had worked with the claimant since 2014 and knew that he had always worked the early shift as a way of controlling his diabetes. RP accepted in evidence that where a shift is changed at short notice it would be normal practice to contact the individual in advance to make sure that they were available. No such contact was made with the claimant.[33]On 26 July, RB sent an email to RN - copied to CR - dealing with a number of posttransfer matters. The 6th bullet point refers back to the May meeting and asserts that they were told the claimant would not transfer. It refers to the claimant being off sick, that he will not receive SSP and will not be required to work any further at the coffee shop [ 575 ] It is clear that at this point that the respondent had decided not to honour the claimant’s contract of employment.[34]On 1 August at 8.50am, the claimant sent RB his fit note and bank details. The fit note declared him fit to return to work but stated that because of his diabetes, he should be restricted to mornings only. [C107][35]On the same day at 13.03, RB wrote to RN, cc’d to CR, asking him to ensure that the claimant was clear that he would not be working any further at the Coffee Shop [581][36]On 2 August at 8.25am, the claimant emailed RB asking him whether he still had a job. AT 10.11 on the same day, RB responded, asking the claimant to speak to RN regarding his employment status, referring to the alleged conversation in May [586][37]On 3 August, CR rang RN seemingly to complain about the situation regarding the claimant. He referred to buying the assets not the people and to people going off sick that had nothing to do with him. He also referred to wanting complete flexibility and not wanting the claimant or anyone else deciding when they could come into work. That account was set out at paragraph 99 of RN’s statement. CR told us that he did not recall having the conversation. However, we do not think RN would have made this up and we accept his account as it is consistent with the respondent’s general attitude towards the claimant.[38]The respondent did not provide the claimant with any shifts or pay him for any shifts once he was declared fit to return to work.[39]On 30 August 2018, the claimant wrote to the respondent requesting a statement of why he had been unfairly dismissed and why he had not been paid. He also asserted that he was protected by the Disability Discrimination Act ( clearly a reference to its successor, the EqA) [590] The respondent did not reply.[40]After unsuccessful attempts to clarify his employment status, the claimant wrote to the respondent on 3 December 2018 stating that he considered that he had been dismissed but in the alternative was resigning with immediate effect due to the respondent’s breach of his contract [ 608-609 ] Submissions[41]The parties made oral submissions which are summarised briefly below: Respondent[42]It was submitted by the respondent that the dispute has arisen because of the agreement made in May 2018 that the claimant would not transfer. Their actions were based on the mistaken belief that RN could object to the transfer on the claimant’s behalf. They now accept that is not the case. They signed the Transfer agreement relying on the due diligence of Sherrards. They genuinely believed the claimant would not transfer. The respondent’s actions were not related to the claimant’s diabetes. They were based on the agreement that the claimant would be leaving. CR knew of the claimant’s diabetes on 3 July. The claimant was not supposed to be working and the change to his shift was an attempt to maintain his 16 hours. The respondent did not act out of malice. The respondent has employed 2 diabetic employees and made adjustments. Also, RP has Crohn’s disease. The claimant was involved in the business and recognised as an owner. The respondent needed a completely new face which is why it made the agreement with RN. It is the respondent’s failure that this was not put in writing. Claimant[43]It was submitted by the claimant that there was no evidence of any offer of work. His Fit certificate contained a restriction that he could only work mornings. The claimant had regularly worked early morning shifts since 2013. On 2/7 it was changed to late morning/mid afternoon. RP had worked with the claimant since 2014 and was fully aware of the potential health risks to the claimant. RB’s letter of 2 August is disingenuous. The respondent has not submitted any evidence that the constructive dismissal was fair and admitted in oral evidence that they did not use ACAS procedure during the dismissal process. Their reasons are trivial based on a mythical conversation with someone who was not entitled to resign on the claimant’s behalf. The respondent’s explanation is not credible. They had access to Croners and Sherrards. The claimant’s comparators for the direct discrimination claim were the other employees that transferred. The claimant was the only one that was disabled and the only one singled out as not transferring. The claimant was constructively dismissed by reason of disability. CR had a lack of knowledge on issues of diversity even though he is the senior person in the organisation and should know about the policies and procedures in the operations manual. Conclusions[44]Having considered our findings of fact, the parties’ submissions and the relevant law, we have reached the following conclusions on the issues Did the claimant transfer to the respondent under TUPE?[45]The respondent accepts that TUPE applied to the purchase of the shop and that in principle all those employed at the time of the transfer would go across. The sole reason for the respondent asserting that the claimant did not transfer was because they say that he objected to the transfer. Reg 4(7) requires that such objection must be made to the transferor or transferee in clear unambiguous terms before the relevant transfer.[46]Both the claimant and RN say that no objection was made. The evidence of the respondent was that no objection was made by the claimant himself. Their reliance on conversations between RN, CR and RB in May is misplaced because, as has now been accepted by the respondent, RN could not object to the transfer on behalf of the claimant. We find that the claimant did not exercise his right to object to the transfer and therefore transferred to the respondent under TUPE. Failure to provide the claimant with work of 30 hours a week[47]This allegation assumes that the claimant was entitled to be paid for 30 hours a week. However we have found this not to be the case. The claimant’s contractual hours were 16 per week. That he sometimes worked more hours does not change this. Those additional hours were voluntary and not guaranteed. The claimant acknowledges the contractual position in his resignation letter where he states: “During this time you have completely failed to acknowledge me as an employee. This is a breach of my contract (which is to work 16 hours per week)…..”[609] However, we do accept that from 2 August (the day after the respondent received confirmation of the claimant’s fitness to work) the respondent should have provided the claimant with work/pay for 16 hours. The respondent says that the reason for failing to do so was because of their mistaken belief that the claimant had agreed not to transfer. For the reasons stated at paragraphs 22-30 above, we do not accept that there was a mistaken belief. We find that there was no reasonable or proper cause for the respondent’s actions and we therefore conclude that their failure to pay the claimant for 16 hours work per week from 2 August amounted to a fundamental breach of his employment contract. Changing the claimant’s working hours[48]This is a reference to the matters at paragraph 32 above. RP changed the claimant’s shift at short notice, without checking his availability, as was the norm. RP has provided no explanation for not doing so in the claimant’s case. The reason she changed the shift was not for operational reasons, it was motivated by a desire not to have RN on the premises as he had apparently indicated that he would assist the claimant in opening up the shop. The manner of the change without consultation, explanation or reasonable cause was likely to destroy or seriously damage the relationship of trust and confidence. Breach of mutual trust[49]This is a reference to the matters at paragraph 25 a) d) and e) of the particulars of claim [26]. We do not consider that these add much to the breaches referred to above. They are not new conduct matters, they are a sub-set of the existing conduct. We are satisfied that the above matters cumulatively amount to a breach of trust and confidence entitling the claimant to treat his employment as at an end Did the claimant resign in response to the breach?[50]The claimant’s reason for resigning is summarised in the final paragraph of his resignation letter [609]. That is consistent with the case presented before us. We are satisfied that the claimant resigned in response to the breach. Did the claimant delay in resigning[51]The claimant states in his resignation letter that he treated the breach of trust and confidence as having occurred on 2 August 2018. However, he did not resign until 4 months later. In determining whether the claimant affirmed the contract, it is necessary to look at what was happening during this period. It is clear from the claimant’s correspondence with the respondent from 30 August onwards that he was unclear as to his employment status. He believed that he had been dismissed but sought confirmation of this but the respondent would not engage with him. Any delay in the claimant’s resignation was because of the respondent’s failure to clarify his employment status. We do not think that the delay was unreasonable in the circumstances or that the contract was affirmed. Conclusion on constructive dismissal[52]In light of the above, we find that the claimant was constructively dismissed. Was the dismissal fair[53]It is for the respondent to show that dismissal was for one of the potentially fair reason set out in section 98(2) ERA. The reason the respondent relies on for the dismissal is their mistaken belief that the claimant had not transferred to them under TUPE and was therefore not their employee. The Tribunal has already rejected the existence of such a belief. The respondent has not satisfied us that there was a potentially fair reason for the claimant’s dismissal and it therefore follows that the dismissal was unfair. Direct Discrimination[54]The less favourable treatment relied upon are the letters to RN of 26.7.18 [575] and the letter of 2.8.18 to the claimant [586] and, in the alternative, the claimant’s constructive dismissal. In considering whether there are facts from which the Tribunal could conclude, in the absence of other explanation, that discrimination had occurred, we note that the respondent’s conduct on transfer indicated that it accepted that the claimant was its employee. This was still the case on 20 July following RB’s meeting with the claimant (para 29 refers) At that meeting, the claimant told RB that he could not work beyond 12.30pm because of his diabetes. However, by 26 July the respondent’s position had completely changed and RB, for the first time, asserted in correspondence to RN that the claimant was not their employee [575]. This was then repeated in an email to the claimant on 2 August [586][55]We have asked ourselves what intervening event occurred between the 20-26 July that led to the respondent’s change in position and the answer is found in RB’s oral evidence. He told us that he had to let CR know about the claimant’s disability and his inflexibility. We believe that disclosure occurred within this window and that was the reason for the change in position.are satisfied that the disclosure to CR was the reason for the change in position. In addition, the conversation between CR and RN, referred to at paragraph 37 above demonstrates a hostility towards employee sickness generally and specifically the claimant’s sickness. We have drawn inferences of discrimination from these matters and are therefore satisfied that the burden shifts to the respondent to provide an explanation for its actions. Their explanation – that they mistakenly believed the claimant had not transferred – has already been rejected. In the absence of any other explanation, we find that when the decision was made not to treat the claimant as employed, it was not because of a belief that there was an agreement, it was because of his diabetes and the inflexibility caused by it. We find that the claimant was constructively dismissed because of his disability. The direct discrimination claim succeeds. Indirect discrimination and failure to make reasonable adjustments[56]The claimant has not identified a proper PCP in relation to his section 19 and 21 claims. The stated PCP is “requiring the claimant to work in the afternoons”. That is not a neutral provision, criterion or practice but is specifically about him. Without a proper PCP, these claims cannot succeed. Discrimination arising from disability[57]The unfavourable treatment relied on is the same conduct as for the direct discrimination claim. We consider that part of the reason for the claimant’s dismissal was because the respondent did not want to employ someone who could not be flexible. The claimant’s lack of flexibility was in consequence of his disability. Was it a proportionate means of achieving a legitimate aim[58]In the Tribunal’s case management order of 11 June 2019, it is recorded that the respondent would clarify its legitimate aim. As far as we are aware, they never did so and has certainly made no reference to the legitimate aim in their submissions. There has also been no evidence or submissions presented on the issue of proportionality. In the circumstances, we find that this claim succeeds. Wrongful Dismissal[59]The Tribunal has found that the claimant’s resignation amounted to a dismissal. That dismissal was without notice. The claimant was contractually entitled to receive statutory notice of termination. The wrongful dismissal claim succeeds. Failure to provide written reasons for dismissal[60]This is based on the claimant’s request in his letter of 30 August [590] and is predicated on the claimant having been dismissed on 2 August 2018. At the case management hearing on 11 June 2019, the claimant confirmed that he was no longer asserting that he was dismissed on 2 August 2018. We are satisfied that the dismissal took effect on 3 December upon the claimant’s immediate resignation. As there was no request for written reasons for dismissal following that resignation, this claim must fail.
Conclusions
[1]The claimant is awarded the following compensation for unfair dismissal and disability discrimination:a. Basic Award - £612b. Loss of statutory rights - £400c. Loss of earnings - £8840d. Pension loss - £202.80e. Injury to Feelings - £12001 a. Interest - £4095.74[2]The respondent is ordered to pay the claimant the total sum of £26,151.54[1]This was a hearing to deal with remedy following the Tribunal’s judgment (sent to the parties on 7 July 2021, with separate reasons sent on 8 November 2021) that the claimant was unfairly dismissed and subjected to unlawful disability discrimination by the respondent.[2]The claimant gave evidence at the hearing on matters relating to remedy. The parties presented a joint remedy bundle and from the claimant we received a supplementary bundle and a schedule of loss. The Issues[3]The issues in the case are as follows:a. Has the Claimant reasonably mitigated his lossb. What financial losses flow from the dismissalc. What award should be made for injury to feelings - Da’Bell v NSPCC [ 2010 ] IRLR 19 EAT,d. Should there be an award for aggravated damagese. Should interest be paid on any part of the award and if so;f. At what rate should interest be paid.g. Should there be an award for failure to provide written particulars of employment
The Law
[4]Section 123 of the Employment Rights Act 1996 (ERA) provides that the amount of compensation payable for unfair dismissal shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to the action taken by the employer.[5]Under section 124 of the Equality Act 2010, the tribunal, having found discrimination, may make such order - a declaration, award of compensation, a recommendation - as it considers appropriate. Where compensation is ordered, the aim of such compensation is to, as far as possible, put the claimant in the position he would have been, but for the respondent’s unlawful discrimination. Ministry of Defence v Cannock and others [1994] IRLR 509.[6]The claimant has the burden of proving his loss. Submissions[7]The parties made oral submissions which we have taken into account. Mitigation[8]An employee is under a duty to mitigate their loss as a reasonable man or woman unaffected by the hope of compensation. This requires them to take all reasonable steps to mitigate the loss which he or she has sustained as a result of being dismissed. An employee cannot recover compensation for the earnings lost as a result of the dismissal if that loss was avoidable. The onus is on the employer as wrongdoer to show that a claimant has failed in their duty to mitigate. The test is an objective one based on the totality of the evidence. However, the standard of reasonableness to be expected of an employee in these circumstances is not high and the tribunal should not be too stringent in its expectations of the claimant. Fyfe v Scientific Furnishings Ltd [1989] IRLR 331; Wilding v British Telecommunications plc CA 2002 ICR 1079.[9]In considering what affect failure to mitigate should have on remedy, regard must be had to: Savage v Saxena 1998 ICR 357 EAT which confirms the analysis set out in the earlier case of Gardiner-Hill v Roland Berger Technics Ltd [1982] IRLR 498. The case cautions us not to apply an arbitrary cut off to compensation but instead to:a. Identify what steps should have been takenb. Find the date on which such steps would have produced an alternative incomec. Thereafter reduce the amount of compensation by the amount of income which would have been earned. Has the claimant taken reasonable steps to mitigate his loss?[10]The claimant’s dismissal took effect on 3 December 2018. By the time of the remedy hearing on 29 November 2021, just shy of 3 years later, the claimant had still not secured alternative employment.[11]We heard evidence from the claimant as to the steps he had taken to secure alternative work and in his supplemental remedy bundle, he provides in tabular form details of his job search.[12]Following his termination, the claimant registered on multiple job search websites. Despite receiving over 30 emails a day, 7 days a week between December 18 and April 19, he only applied for 2 jobs online during that period.[13]In January 2019, the claimant walked into 2 cafes (Baked Coffee and Café Coho) and handed in his CV. He was interviewed by Baked Coffee in July 2019 but there was nothing available for him at that time. Café Coho required someone to work full time which was the claimant was unable to do because of his diabetes. He made no online applications.[14]In February 2019, completed an online questionnaire for Aldi, Brighton, but did not meet the minimum requirements. He also walked into the Coffee Tree Café in the Lanes, Brighton, and handed in his CV. When the claimant tried to hand in his CV to the manager at Costa Coffee, he was told that all applications had to be filled out online. However, the claimant did not complete the online registration form until January 2021, nearly 2 years later, and did not apply for any positions.[15]In March 2019, the claimant handed in his CV to Oxfam, Brighton, and made one online application for the role of Kitchen Porter at Wahaca in Brighton. No other activity is recorded for March.
Findings of Fact
[16]On 2 April 2019, the claimant walked into Waitrose, Brighton, to enquire about work and was told to apply online. On 23 April he created an online account and set up email alerts for Jobs from Waitrose but did not apply for anything until August 2020. On 30 April 2019, the claimant handed in his CV at Café Nero in Brighton and was again told to apply online. He did not do so until June 2019. The claimant applied for one online job in April (Survey Respondent) but received no response.[17]In May 2019, the claimant made one application, online, for the position of Sales Assistant at the British Heart Foundation.[18]The claimant says that in June 2019, he applied for multiple jobs in printing shops and cafes. That evidence was too general and lacked cogency. We were not prepared to accept it on face value.[19]In July 2019, the claimant made no applications but did attend an interview on 4 July, arising out of his application to Baked Coffee in January.[20]There is then no job search activity recorded until 26 February 2020 when the claimant applied online for the role of Receptionist. No other applications were made during this month.[21]In March 2020 the claimant walked into Tick-Tock Café in Brighton and enquired about Café work. In March 2020, the Covid pandemic occurred.[23]The claimant suffered from ill health between May and July 2020 due to fluid on his lungs. This affected his ability to look for jobs and he was out of action for 2 months.[24]In July 2020 the claimant applied for one job, Care Assistant, and in August 2020 he applied for one job, as a Cat Sitter. There were no other applications made in 2020.[26]The claimant’s job search in the first half of 2021 seemed to follow the same pattern and pace as the previous years.[27]In May 2021, the claimant started voluntary unpaid work as a shop worker for Shelter.[28]The claimant’s job search seemed to pick up pace from between July and November 2021. This is despite the fact that, by his own admission, his mental health and low mood was at that point worse than it had been in 2019 and 2020. For example, in July, the claimant walked into 6 shops to enquire about jobs and applied for one job online. In September 2021, the claimant records 10 specific job applications. He was similarly active in October 2021. We suspect this increased activity had something to do with the Tribunal cautioning him, after delivering its liability judgment, that he would need to demonstrate the steps he had taken to mitigate at the Remedy hearing.[29]The claimant did not apply to Starbucks even though it is a well-known coffee chain which dominates the High Street.[30]The claimant told us that he would have loved to have worked in Tesco but he made no applications. We take judicial note of the fact that Tesco is renowned for employing mature workers and operating a variety of shifts. Also, supermarkets were one of the few businesses that continued to operate during Covid lockdown.[31]Along Brighton seafront are lots of hotels that serve Breakfast. The claimant told us that a morning job serving Breakfast would have been ideal for him but he only handed in his CV to one such hotel.[32]It seems to us that the claimant’s job search has been rather perfunctory. The ability to job hunt online brings with it a vast window into the local job market and the ability to make multiple applications at speed and with minimal exertion. In those circumstances, it is surprising that the claimant was averaging no more than one application a month.[33]Based on the evidence, we find that the claimant has not taken reasonable steps to mitigate his loss.[34]We think there were a number of things he could have done. He could have been making at least 10 online applications per month. He was doing this from September 2021 onwards and we see no reason why he could not have been doing this earlier.[35]He could have applied to Tesco and other supermarkets for jobs. The only supermarket application he made was to Waitrose, and that was not until August 2020, 16 months after he first registered with them online.[36]He could have made enquiries about a breakfast job in the plethora of seafront hotels in Brighton.[37]In our view, had the claimant done these things, he would have secured work, earning at least £8.50 per hour for a 16 hours per week by 2 March 2020 – 65 weeks after his dismissal. In reaching this conclusion, we have taken into account the claimant’s age, 63 at the time; the limitations caused by his disability and his limited education, all of which may have put him at a disadvantage in the job market. That said, we also take into account the fact that most jobs that pay minimum wage are unlikely to need qualifications or prior experience.[38]Compensation for loss of earnings has therefore been awarded up to and including 1 March 2020. Unfair Dismissal Award BASIC AWARD[39]The claimant had 3 complete years of service, all over the age of 41 and his basic pay was £136 gross per week. His basic award is 3 x 1.5 x £136 = £612 COMPENSATORY AWARD Loss of Earnings[40]Loss of earnings from 3.12.18 to 1 March 2020 - 65 weeks @ 136 = £8840 Pension loss[41]There was a lack of clarity on the claimant’s pension loss. In the schedule of loss, it was said that the respondent contributed an average of £26.99 per week towards the claimant’s pension. Then we were told that this was an arithmetical error and that it should have been £13.50 per week. No evidence was produced for either of these figures. The claimant’s contract refers to access to a Stakeholder pension provider. No details were provided. We have therefore assumed that the respondent would have contributed the minimum figure of 3% of the proportion of the claimant’s earnings over the relevant threshold. On that basis, £13.50 per week is unrealistically high and we consider that the contribution was more likely to be closer to £13.50 per month. We therefore calculate pension loss as follows: 13.50 x 12/52 = £3.12 per week x 65 = £202.80 Loss of Statutory Rights[42]We award £400 for loss of statutory rights. Benefits in Kind[43]We make no award for the loss of the benefits in kind referred to in the claimant’s witness statement as there is either no evidence that such a benefit existed or if it did, there is no evidence of financial loss.
Conclusions
[44]The total compensatory award is £9,442.80 Disability Discrimination Award INJURY TO FEELINGS[45]The general principles that apply to assessing an appropriate injury to feelings award have been set out by the EAT in Prison Service v Johnson [1997] IRLR 162, para 27: i. Injury to feelings awards are compensatory and should be just to both parties. They should compensate fully without punishing the discriminator. Feelings of indignation at the discriminator’s conduct should not be allowed to inflate the award; ii. Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could be seen as the way to untaxed riches; iii. Awards should bear some broad general similarity to the range of awards in personal injury cases – not to any particular type of personal injury but to the whole range of such awards; iv. Tribunals should take into account the value in everyday life of the sum they have in mind, by reference to purchasing power or by reference to earnings; v. Tribunals should bear in mind the need for public respect for the level of awards made.[46]The discriminatory dismissal caused the claimant to suffer a great deal of upset, humiliation and anxiety. He had many sleepless nights, panic attacks; and being dismissed and unemployed had an adverse effect on his self-esteem and happiness. Although the claimant had a history of anxiety and depression and was already on medication for this prior to his dismissal, we are satisfied that the dismissal exacerbated his condition.[47]The relevant Vento guidelines (as amended by Da’Bell v NSPCC, UKEAT/0227/09, [2010] IRLR 19) for claims presented on 4.12.18 were: Lower – 900 - 8600 Middle – 8600 - 25700 Upper – 25700 - 42900[48]Taking all the above matters into account, we consider that this matter falls within the lower end of the middle Vento band and we award £10,910 injury to feelings. We add to this a Simmons v Castle uplift of 10% (£1091) making the total injury to feelings award £12001. Aggravated damages[49]The classic statement of when aggravated damages are available was made by the Court of Appeal in Alexander v Home Office 1988 ICR 685, CA, where it held that aggravated damages can be awarded in a discrimination case where the defendants have behaved ‘in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination’.[50]In Commissioner of Police of the Metropolis v Shaw 2012 ICR 464, EAT, Mr Justice Underhill (as he then was) President of the Employment Appeal Tribunal, gave a more detailed exposition, identifying three broad categories of case, though this was not intended to be an exhaustive list:a. where the manner in which the wrong was committed was particularly upsetting. This is what the Court of Appeal in Alexander meant when referring to acts done in a ‘high-handed, malicious, insulting or oppressive manner’b. where there was a discriminatory motive — i.e. the conduct was evidently based on prejudice or animosity, or was spiteful, vindictive or intended to wound. Where such motive is evident, the discrimination will be likely to cause more distress than the same acts would cause if done inadvertently; for example, through ignorance or insensitivity. However, this will only be the case if the claimant was aware of the motive in question - an unknown motive could not cause aggravation of the injury to feelings, andc. where subsequent conduct adds to the injury - for example, where the employer conducts tribunal proceedings in an unnecessarily offensive manner, or ‘rubs salt in the wound’ by plainly showing that it does not take the claimant’s complaint of discrimination seriously.[51]The claimant relies on the matters at paragraphs 16-25 as the basis for claiming this award. However, our view is that much of what is alleged is based on the claimant’s perception and to the extent that anything referred to is factual, it does not, in our view, reach the threshold of conduct that would attract such an award. We therefore make no award under this head. Interest[52]The tribunal awards interest at 8% on the loss of earnings and injury to feelings award as follows: Date of discrimination (X) 3.12.18 Date of ET Calculation (Y) 7.1.22 Number of day bw X & Y 1131 Mid-point 565.5 Injury to feelings £12001 12001 x 1131 x 0.08 2974.93 loss of earnings £9042.80 9042.80 x 565.5 x 0.08 1,120.81 Failure to provide written particulars[53]The claimant was provided with written particulars dated 8.5 15, which he signed, along with his then employer, Richard Neil on the same date. In the schedule of loss, it states that there was a failure to advise the claimant of changes in writing. No evidence was given by the claimant as to the changes that had occurred since the original statement was provided and whether or not he was notified of these. This complaint is not made out so no award is made. ACAS Uplift[54]The claimant deals with this at paragraph 26 of his remedy statement. He refers to having made 5 grievances to the employer and references a number of documents in the bundle. However, having looked at those documents, most are requests for information. The closest one that gets to a complaint is the resignation email of 3 December 2018. However, we do not consider that to amount to a grievance. The complaints are presented as reasons why the claimant is resigning rather than a request to resolve matters. As there is no written grievance, the issue of an ACAS uplift does not arise. Conclusion on Remedy[55]The unanimous judgment of the Tribunal is that the claimant be awarded the following:a. Basic Award - £612b. Loss of statutory rights - £400c. Loss of earnings - £8840d. Pension loss - £202.80e. Injury to Feelings - £12001 a. Interest - £4095.74 3. The respondent is ordered to pay the claimant the total sum of £26,151.54