Employment Judge T Vincent RyanDate 30 October 2025
JUDGMENT
[1]The responses are struck out under Employment Tribunal Rule 37(1)(c) because the respondents have not complied with the Tribunal Rules or a Tribunal order. Further, and in the alternative:[2]The responses are struck out under Employment Tribunal Rule 37(1)(d) because they have not been actively pursued. Further, and in the alternative in consequence of non-compliance with Orders and a failure to pursue the responses:[3]The responses are struck out under Employment Tribunal Rule 37(1)(e) because it is no longer possible to have a fair hearing in respect of them. Case Number: 1601475/2021 1601484/2021 1600869/2022[4]It is not appropriate to apply Employment Tribunal Rule 21 and to make a liability judgment in consequence of the above. JUDGMENT having been sent to the parties on 12 October 2023 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The Issues – In a situation where the final hearing is listed to take place over 8 days commencing 1st November 2023, on the basis of the Claimants’ application that the Respondents’ responses should be struck out for non-compliance with Orders made by the Tribunal, because the responses have not been actively pursued, and that a fair hearing was no longer possible the issues arising for determination today are: 1.1. Whether there has been non-compliance with an Order of the Tribunal by the Respondents; 1.2. Whether the responses have not been actively pursued; 1.3. Whether I consider that it is no longer possible to have a fair hearing in respect of the responses 1.4. Whether striking out all or some of the Respondents’ responses would be in the interests of justice, and in accordance with the overriding objective of the Tribunal.[2]The Facts: I heard sworn evidence from the Claimants’ solicitor, Ms E Quenby (based on and including her written statement dated 10 October 2023); I heard from the Respondents’ Litigation Consultant, Mr P Collins, and found the following facts (which were substantively agreed by both parties): 2.1. I asked Mr Collins whether he accepted the veracity and accuracy of Ms Quenby’s factual statements (as opposed to her comments and opinions on how and why he had acted, or omitted to act, as set out in the factual parts of her statement). He agreed that the witness statement was factually accurate. Leaving aside her said comments and opinions, which I find she held sincerely, I find that the whole statement is a statement of fact. Further leaving to one side matters between Ms Quenby and her clients which he cannot be expected to know first-hand, I confirm that Mr Collins, for the Respondents, accepts the accuracy and veracity of the following specific paragraphs concerning steps required, taken and not taken namely: 2.1.1. Paras 4-14 2.1.2. Paras 16-25 2.1.3. Paras 31 – 50 2.1.4. Paras 52 2.1.5. Paras 56-58 2.2. Mr Howells prepared “Claimants’ Submissions” dated 10 October 2023. I asked Mr Collins whether the Respondents accepted the factual accuracy of the chronology at paragraph 1 headed “Procedural history”. He did. I confirm that history as facts found. 2.3. I note Mr Collins’ statement that he “could not take issue with the facts” set out in the said statement and submission, and as such he had no questions in cross examination of Ms Quenby. The Claimants’ evidence on this preliminary issue, that of Ms Quenby, and factual submission was uncontested. 2.4. I accept as fact Mr Collins’ statements: 2.4.1. That his clients wished to pursue their responses to the claims; 2.4.2. That he believed he “frankly had a lot of work to deal with” (although no details were given, there was a reference to his attending at other Tribunal hearings); 2.4.3. That he believed that while there had been “some compliance” with case Orders, he knew there had not been full compliance; 2.4.4. That he was simultaneously dealing with “a number of cases and this one has slipped”. 2.4.5. That “the buck is with” him. 2.4.6. That he was embarrassed. 2.5. I note that the matters stated in paragraph 2.4 comprise the extent of the Respondents’ explanation for the current state of affairs (as detailed in Ms Quenby’s statement and Mr Howells’ submissions). 2.6. Furthermore, I find, by Mr Collins concession, that the Respondents had yet to do the following (and Mr Collins put forward a proposed timetable to achieve it) namely (and in each case having taken instructions from one or more of his five clients as appropriate, and working around the preparation he needed to undertake in preparing witness statements for another case, his diary otherwise now being “blocked”): 2.6.1. He needed to “find” and check outstanding disclosable documents; 2.6.2. He needed to find and re-read and then send to the Claimants (hopefully today) transcripts of various meetings. He wanted to re-read them but did not feel he needed further instructions (but please see 2.6.5 below). Mr Collins suggested that this could be done by him by 4 p.m. today (although he planned initially to complete the outstanding witness statements in a different case); 2.6.3. Update the substantive chronology; 2.6.4. Update the draft List of Issues; 2.6.5. Remind himself of what preliminary issues he had intended raising and then, subject to instructions, prepare a hearing bundle, a supplementary bundle of documents, in respect of any such issues (albeit he admitted being confused by this today). I note that Mr Howells reminded Mr Collins that the Respondents had indicated they challenged the admissibility of transcripts/recordings that they held; 2.6.6. Agree the Index to the main hearing bundle, and therefore contents of the hearing bundle. He suggested this be done by 13 October 2023. 2.6.7. Provide an indexed and paginated hearing bundle to the Claimants. He suggested this be done by 20 October 2023. 2.6.8. The Respondents, potentially all five of them, needed to update their witness statements given the passage of time and the events in the meantime since initial drafts were prepared for the abortive hearing last March. The initial drafts were then approved, but none had been signed. He suggested that witness statements be exchanged by 25 October 2023. 2.7. In summary I find: 2.7.1. The claim having been issued on 7 September 2021, the final hearing listed to be held 6 – 15 March 2023 was postponed because of the Respondent’s failure to comply fully with Cases Management Orders made on 27 July 2022 and 2 February 2023. The matter was not ready for a fair and just hearing to be held in March 2023. 2.7.2. Further Case Management Orders were made on 15 June 2023 with a view to a final hearing, which was then listed to commence on 1 November 2023 (14 working days from today). As at today the Respondents have still failed to comply with the said Orders and the case remains unprepared and not ready for the final hearing. There has been no substantive progress in preparation since last March’s postponement. Nothing has been done to date that would allow for full preparation by the Claimants who are still awaiting important disclosure, not least in respect of recorded meetings. 2.7.3. Whereas the Claimants’ representatives suspect that the Respondents’ serial failures to comply with Orders and to pursue their responses actively, specifically to make disclosure, is deliberate and tactical I am unable (on the evidence before me) to conclude that this is the case; it may be. 2.7.4. The Claimants have been prejudiced in preparing for any final hearing. Evidence has been withheld from them to date. They have yet to receive potentially important transcripts and recordings of various meetings, full disclosure otherwise, and therefore a working hearing bundle. They have been unable to finalise their own witness statements, and have not seen the Respondents’ statements. Their representatives have been put to the time spent, and the Claimants to the cost incurred, in chasing the Respondents for progress, in making applications and in additional correspondence with the Tribunal, and in attending additional preliminary hearings. Their representatives are concerned at the potential for an “ambush” by late steps taken by the Respondents and, at least that they (the Claimants) may be put in the invidious position of having to ask for a further postponement of the final hearing even if the Respondents were able to comply with Mr Collins’ proposed timetable mentioned above. 2.7.5. There are contested allegations of words said and actions taken by the parties in relation to events that took place two years ago, and longer. I take notice, as opposed to finding in fact, that if either party required a postponement of the November hearing it is unlikely that the matter could be re-listed before early Spring next year; there would be a likely delay of somewhere in the region of a further 6 months with the distinct possibility that the re-re-listed hearing might be on or about the first anniversary of the first listing, some 2 ½ years after the events in question. 2.7.6. The situation so summarised is the responsibility of the Respondents and/or their representatives.[3]The Law 3.1. Rule 2 ETs (Constitution and Rules of Procedure) Regulations 2013 sets out the overriding objective of the Tribunal, stated to be to deal with cases fairly and justly, including by reference to listed criteria. The Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising, any power given to it by the Rules. The parties and their representatives are required to assist the Tribunal to further the overriding objective and in particular they are required to co-operate generally with each other and with the Tribunal. 3.2. Rule 37 provides that at any stage of the proceedings, either of its own motion or on the application of a party, a Tribunal may strike out all or part of a claim or response on any one of a number of listed grounds, including for non-compliance with any of the Rules or with an Order of the Tribunal, or because the claim or response has not been actively pursued, or that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the parts to be struck out). A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations either in writing or at a hearing if requested. Where responses struck out the effect shall be as if no response has been presented. 3.3. I accept the appropriate citation of authorities by Mr Howells in his written submissions. Mr Collins did not take issue with these legal submissions. I took into account the cases referred to by Mr Howells in reaching my decision. In the circumstances, especially that I allowed Mr Collins additional time in an adjournment to consider the Claimants’ Submissions, and the authorities are explained, I will not set out case summaries here. I refer to Mr Howells’ written submission.[4]Application of Law to Facts 4.1. the Respondents not only failed to comply with case management orders made at two preliminary hearings prior to the abortive hearing of 1 March 2023 but their non-compliance led directly to the postponement of that hearing. Further Case Management orders were made with a view to hearing these claims in two weeks’ time. The Respondents failed to comply with those orders. Save to apply for this hearing the Respondents appear to have done nothing in relation to this claim, or at least nothing by way of substantive and necessary preparation, since March 2023. This failure is despite the efforts of the Claimant’s representative to engage, to cooperate, and to make progress in the hope that there could be an effective hearing commencing on 1 November 2023. The Respondents effectively thwarted the Claimant’s best efforts. 4.2. As at today the parties are not in a position to guarantee readiness for an effective hearing on 1 November 2023. This is a direct result of the Respondents’ inactivity in relation to the case and their serial non-compliance with case management orders. 4.3. Based upon the history of this matter to date and the manner in which Mr Collins presented his proposed revised timetable today, I have no confidence that the Respondents will take the necessary steps to put the Claimants in a position whereby there could be an effective hearing in two weeks’ time. I suspect that even if Mr Collins achieved the objectives he was prepared to set himself, compliance would be so late that in fairness to the Claimants they would require more time and would be obliged to request postponement of the final hearing. 4.4. I accept the point made by Mr Howells that even if the responses are struck out the Claimants will not necessarily receive a “windfall”. They are making claims of unlawful discrimination. This is not a claim suited for a “default” judgment such as under Rule 21. The Claimants must still prove facts to the satisfaction of a judge that could lead to a finding of unlawful discrimination. Striking out the responses does not mean that they are effectively home and dried. In fact the Claimants submit that a strike out at this stage would not negate the need for a multi-day hearing. Furthermore, the Respondents will not necessarily be precluded from being heard in relation to remedy, if the Claimants succeed. 4.5. I said in the oral judgment that I did not wish to compound Mr Collins’ evident embarrassment, and he was quick today to acknowledge his fault. We all make mistakes and we all wish we had done something that we had not done or that we had done something sooner than we did them. That is just a matter of human frailty. Accepting such frailty is not however the point of the exercise today. 4.6. I must consider the overriding objective of the Tribunal; the interests of justice must prevail. This entails, in cases such as this, compliance with strict duties of disclosure and with preparatory orders. It is not just a case of a tick box exercise getting things done but also doing them thoroughly and in a timely fashion so that a case is properly prepared for a final hearing. We do not just consider the provision of material, the building blocks of a claim and response respectively, but the timely provision of all relevant and necessary material in such a way as it allows the respective parties to build their cases in readiness for a hearing which would otherwise be ineffective. There may be a hearing but it must be effective in that the Tribunal is able to deal fairly and justly with the case. 4.7. Ms Quenby’s witness statement and Mr Howells submissions are damning indictments of the Respondents and their representative. Their factual bases were accepted by Mr Collins; in fairness to him I did not ask him to comment on the judgemental opinions expressed. It is however hard to avoid the conclusion that there is fault here. 4.8. There has already been one abortive listing. The Claimants have been put to considerable expense and, we are told, emotional stress, by the actions of the Respondents and their representative, or should I say their inactivity. The quality of the evidence in a case that is fact sensitive, cannot be improved by the delay when we are already some two years post the events in question with the very real prospect of a further postponement if the responses are not struck out. 4.9. Mr Collins has proposed an aspirational timetable to keep the matter on track. I accepted his assurances last February that he would take the necessary steps to make the March hearing effective. Once again there was fault on the part of either the Respondents or their representative, or both, in that they failed to follow through on the assurances given to me at the February preliminary hearing. Mr Collins did not persuade me today that he would be able to meet his aspirational timetable. I also consider that in the unlikely event he did so, disclosure or the like would be so late that the Claimants would not be ready by the 1 November 2023. Mr Collins is representing five respondents. There are two individual claimants. Both sides intend calling additional witnesses such that there may be as many as 10 witnesses in all. Without full disclosure, including of the transcripts that are in issue, neither party could confirm to me exactly who they would be relying upon to give witness statements. The additional witnesses, as yet unnamed to me, may for all I know have had little involvement with the case since the events of some two years ago. Their memories may have faded. 4.10. I considered whether or not to make an Unless Order, requiring action or leaving the Respondents to face the immediate consequences of noncompliance. These can be effective in ensuring action. On the other hand they can just give rise to satellite litigation and dispute as to whether or not there has been compliance. Any such order would be with a view to securing commencement of the final hearing on 1 November 2023 I did not feel that at this short notice it would be appropriate for all the reasons stated above (the unlikelihood of compliance but if there was compliance likelihood that it would necessitate a postponement application by the claimants, and in any event the risk of dispute as to whether or not there has been compliance). 4.11. I considered whether I should just postpone the hearing set to start on 1 November 2023. I concluded that this was unconscionable. The final hearing was postponed some seven months ago for the same reasons and in the same situation we are in today. That is unfair to the Claimants. Once again I have no real confidence that even if additional time was granted, the Respondents would comply with orders satisfactorily. I say this is despite Mr Collins’ protestations; he failed to give me what I considered to be reassurance. The additional cost, delay, and likely detrimental effect on the quality of evidence are also factors that I took into account in deciding not to just order postponement of the hearing, and issuing a new timetable.. 4.12. I considered therefore the balance of prejudice to the parties depending on whether I took any of the potential courses of action outlined above. 4.13. The respondent has had ample opportunity, over and again, to prepare its defence and to cooperate with the Tribunal and with the Claimants to ensure that the overriding objective is met. They have failed. I was not given a satisfactory explanation for the serial failure. If it came down to Mr Collins being busy for the last several months then the Respondents ought to have acted appropriately to appoint another representative or instruct him to delegate responsibility for this case. Responsibility, fault, lies fairly and squarely with the Respondents and Mr Collins. 4.14. The Claimants have been deprived of an opportunity for timely, comprehensive, preparation. Whether the Respondents’ failures were deliberate or not, the Tribunal should not be complicit in any sense in what may be an even unintended or inadvertent ambush, a situation where the Claimants would be bounced into a proposed timetable and imminent final hearing. As I have repeatedly stated, I think the likelihood is they would be obliged to request a further postponement. If there was no postponement then inevitably their late preparation would be rushed and sub-optimal, certainly not what Ms Quenby and Mr Howells intended. It would not be the preparation that was anticipated at the number of preliminary hearings, being the required preparation for a hearing of the issues as serious as these. 4.15. Given the timescale to date it is apparent that the Respondents have not been actively pursuing their responses. They are in serial breach of orders. Their inactivity and omissions have prejudiced a fair hearing. I conclude that a fair hearing is not possible in November of this year. As the final hearing is pushed back in the calendar further from the events in question the quality of evidence is detrimentally affected to the extent that I consider there will not be a fair hearing on liability if the Respondents are allowed further time and opportunity to contest liability. 4.16. Striking out the responses would leave a situation where there still needs to be a liability hearing. The Claimants still need to satisfy the Tribunal that they have proven facts which could lead to a finding of unlawful discrimination. If there is a finding of unlawful discrimination the Respondents may well be allowed to re-enter the fray with regard to remedy, and therefore they are not severely prejudiced. They have chosen not to pursue their responses with regard to liability. They may yet choose to take part in remedy proceedings, if there are any. 4.17. The balance of prejudice is severely against the Claimants if the Respondents are allowed to pursue their responses at the final hearing either in November or in 2024. 4.18. The interests of justice will be best served by my striking out the responses, allowing the Claimants to proceed to a final hearing on liability, leaving open the possibility of the Respondents being heard on remedy (if remedy is even appropriate). 4.19. Ms Quenby has commented on what she considers to be the Respondents’, or Mr Collins’, disrespect shown to the Tribunal. I have limited my consideration to the interests of justice. That said, it is right to say that orders are made with a view to the overriding objective of the Tribunal, and yet in this case they have been blatantly disregarded.[1]The complaint of indirect disability discrimination is dismissed upon withdrawal.[2]The complaint of direct age and disability discrimination is not well founded and is dismissed.[3]The complaint of discrimination arising from disability is not well founded and is dismissed.[4]The complaint that the claimant was not provided with rest breaks contrary to Regulation 12 Working Time Regulations 1999 is not well founded and is dismissed.[5]The complaint of being subjected to detriment for making protected disclosures is well-founded and succeeds against the first, second, third and fourth respondents. 10.2 Judgment - rule 61 February Case Nos: 1601475/2021 1600869/2022[6]The complaint of unfair dismissal contrary to section 103A Employment Rights Act 1996 is well-founded. The claimant was unfairly dismissed for the reason or principal reason that he had made protected disclosures.[7]The complaint of harassment related to sexual orientation, race, disability, gender reassignment and sexual harassment is well founded and succeeds against the first and fourth respondents.[8]The complaint of victimisation is well-founded and succeeds against the first, second and third respondents.[9]The complaint of breach of contract in relation to notice pay is wellfounded.[10]When the proceedings were begun the respondent was in breach of its duty to provide the claimant with a written statement of employment particulars. The judgment on remedy is reserved.[1]There are anonymisation orders and restricted reporting orders in place in respect of all parties and two other individuals (Person A and Person B). A separate remedy judgment has been issued in respect of the second Claimant, who is referred to as D.[2]On 11 October 2023 the responses for all Respondents were struck out by Judge Ryan. The hearing had due to be heard over 8 days but as a result of the responses being struck out, the hearing was reduced to 4 days. The Respondents were permitted to cross examine the Claimants on remedy and adduced one witness statement for R2 but he was not called to give oral evidence. None of the other Respondents submitted witness statements in respect of remedy.[3]At the outset of the hearing the Respondents’ representative confirmed she remained instructed for all Respondents.[4]The claim was heard at Cardiff Tribunal on 6, 7, 8, 9 November 2023. Oral judgment on liability was given on 9 November 2023. A written record of the judgment was promulgated on 14 November 2023. Remedy was reserved. The Tribunal sat on 29 November 2023 to reach their decision on remedy.[5]There has been no request for written reasons for the liability judgment. Where it is necessary to recount liability findings to make sense of remedy findings these are set out below. Admission of ACAS communications[6]The Tribunal identified as a preliminary issue that ACAS communications were included in the bundle and referenced in the Claimant’s witness statement both of which had been prepared by the Claimant’s solicitor following the multiple failings of the Respondents (as recorded in Judge Ryan’s strike out judgment) in regards to disclosure and agreeing a bundle. These were emails between the Claimant and the ACAS conciliator dated 23 July 2021, 27 July 2021 and 28 July 2021.[7]The Tribunal heard from both representatives and adjourned to consider whether to admit the documents.[8]The Claimant’s position was that the ACAS communications should be admitted as they were a cloak for ‘unambiguous impropriety’. Exclusion of the ACAS documents would exclude evidence of the alleged detriments and victimisation.[9]The Respondents’ representative objected but did not make any supporting submissions other than the general principle is that ACAS communications are confidential.[10]We had regard to the authorities of BNP Paribas v Mezzotero [2004] IRLR 508 and Woodward v Santander UK plc [2010] IRLR 834. The degree of seriousness of abuse of the privilege must be very high.[11]Applying the guidance in Woodward we concluded there was evidence that required determination of whether there had been serious abuse of the ACAS confidential procedure that warranted the admission of the documents as evidence. Rule 50 orders[12]The Tribunal raised of their own volition that the Claimant’s complaints included allegations concerning a potentially vulnerable person and the allegedly inappropriate and abusive relationship between that person and R4. There were also allegations regarding comments made in the work place about a sexual relationship and sex acts at work involving an individual who was not a party to these proceedings. On 6 November 2023 the Tribunal issued anonymisation and restricted reporting orders in respect of these persons who shall be referred to as Person A and Person B in these proceedings.[13]There had been no previous applications by either party for any other Rule 50 orders.[14]The Respondents have appealed Judge Ryan’s decision to strike out the responses. The timing of the appeal was after the Tribunal met in chambers and reached their remedy decision. As there was no request for written reasons of the liability judgment, given the content of the remedy judgment, the appeal gave rise to the Tribunal further considering whether Rule 50 orders should be extended to all parties. The parties were provided with the opportunity to make representations on whether there should be further privacy orders. On 5 February 2023 the Tribunal made further anonymisation and restricted reporting orders in respect of all of the parties. LIST OF COMPLAINTS UPHELD[15]PID detriments (s.47B ERA 1996) and s27 EQA detriments The following complaints were upheld against R1, R2, R3 and R4a. On June 13th, 2021 the following preparatory steps were taken to remove the Claimant from the business;b. The Claimant was removed from the ‘Manager Sync Document’ folder and that the user (R4) had been responsible;c. The Claimant was removed as the Administrator of R1’s Facebook page;d. The Claimant was removed from the staff WhatsApp group. The message read that R2 had removed the Claimant;e. The Claimant was removed from the Managers WhatsApp group;f. The Claimant was removed from the staff rota;g. On June 17th, 2021 the Claimant’s job was advertised before he had been notified of his dismissal;h. The Claimant was subjected to disciplinary action;i. The Claimant was denied a fair disciplinary hearing;[16]The following complaints were upheld against R1, R2 and R3a. R2 and R3 laughed at the Claimant during the disciplinary hearing when he tried to explain why he was not guilty of the allegations;b. The Claimant was dismissed (June 22nd, 2021) (this claim was advanced against R2 and R3, but in respect of which R1 is vicariously liable).[17]The following complaints are upheld against R1, R2 and R3: The Claimant suffered post-termination detriments and acts of victimisation, namely:a. On 8 July 2021 R3 maliciously reported the Claimant to the Police for theft of a pizza and three dips.b. On 11 April 2022 R2 maliciously submitted an online complaint to the Police alleging that the Claimant had encouraged Person A to enter prostitution. Harassment (s26 EQA 2010) All of the harassment complaints were upheld against R1 and R4 as follows:[18]Sexual Harassmenta. R4 persistently referred to the Claimant as “Sexy Legs”;b. Towards the end of 2020, the Claimant sent a picture to R4 on Snapchat of some LED lights which he had purchased and placed around his television. The picture sent by the Claimant inadvertently included a small proportion of his legs. R4 responded to that message stating that he was lonely at home because his wife was away and wished those sexy legs were lay next to [him] with an emoji blowing a kiss.c. On a number of occasions, R4 sent images to the Claimant via Snapchat which showed him in the bath while watching the live CCTV footage of the store and therefore live footage of the Claimant and his colleagues whilst they were working. R4 would also make other comments that indicated he was frequently watching the staff whilst he was not in work.d. On one occasion, the Claimant was asked by R4 to assist with a problem that he and R2 were attempting to fix in the facilities. Upon entering the room, R4 asked the Claimant if he would like to “have a threesome” with them.e. R4 would routinely advise members of staff that he was engaged in a sexual relationship with Person B and gave graphic details of sexual acts between them in the office.f. On one occasion, during the early part of 2021, R4 in discussion with the Claimant, also stated that he could not wait to get home from work because he needed to masturbate.g. In/around March/April 2021, R4 removed his clothing whilst in the presence of the Claimant without warning, causing the Claimant to immediately leave the room.[19]Harassment related to sexual orientationa. In or around the Summer/Autumn of 2020 R4 told the Claimant and other members of staff that he was cutting someone out of his life because that individual was gay.b. On 25 January 2021, following the incident in which a violent member of the public entered the outlet, R4 told the Claimant that he had reacted like a “pussy” and a “wimp”;c. R4 would routinely make homophobic comments and do an impersonation of a gay colleague by loosening his wrists and speaking in a very high pitched tone. He also often expressed extreme dislike for this colleague stating that he was “gay in his face” and advised the Claimant he did not wish to undertake any work at the store while this colleague was working as he “couldn’t stand being around him”.d. In or around February 2021, R4 told the Claimant that he was surprised to find that he got on with a new member of staff because they were gay and expressed surprise that the person was nice and did not “behave or sound like a gay person”.[20]Harassment related to race / national origin In relation to a Romanian colleague who commenced employment with R1 in or around October 2020, R4 would typically refer to him as the “Romanian Cunt” or the “Romanian Bastard” and would request, where possible, that the Claimant did not rota him and the Romanian colleague on the same shift.[21]Harassment relating to gender reassignment When referring to a former colleague, who was born female but had explicitly advised that he identified as male, R4 would use the female name assigned at birth and not the male name as requested. During the course of this person’s employment R4 customarily referred to this person as “the heshe” and would ask colleagues what genitalia they thought this person had. R4 also requested the Claimant, where possible, not to rota himself and this person to work the same shifts.[22]Harassment relating to disability On 24 May 2021, R4 advised the Claimant that he no longer wished for him to recruit individuals who had mental health problems and referred to the store as a “mental health boys club”. Findings of fact – relevant to
REMEDY
[23]The Claimant was employed between 6 March 2020 until 22 June 2021. His age at the date of dismissal was 24.[24]The Claimant has Generalised Anxiety Disorder diagnosed by a specialist doctor in September 2019. Until the Claimant’s dismissal this condition was managed with medication.[25]His hours of work whilst employed by R1, not including overtime, were 45 hours per week. His gross weekly pay was £429.30 and his net weekly pay was £340.17. R1 failed to disclose the pension scheme documents to the Claimant. It is assumed R1 operated a nest type pension as is typical in the sector and employer contributions are found therefore to have been 3%. The Claimant was entitled to food up to the value of £18 per shift worked, namely 5 shifts per week.[26]The Claimant was entitled to 12 weeks notice but was only paid two weeks notice upon his dismissal.[27]Following his dismissal the Claimant’s mental health took a turn for the worse and he was prescribed sleeping tablets by his GP.[28]After the Claimant’s dismissal he was unemployed between 22 June 2021 until 12 July 2022. He commenced employment on this date with Smyths Toy Shop. The net weekly pay was £183.00. The Claimant did not stay long in this job as it was a temporary contract and he had been applying for other retail roles. He secured a permanent job at Asda on a net weekly wage of £187.20. He commenced at Asda on 5 August 2021 but as of 3 December 2021 his mental health deteriorated, and he was signed off sick until 5 February 2022 and was paid SSP at £96.35. He then returned to work on a phased return and stayed at Asda between 5 February 2022 until 2 March 2022 where he earned a net weekly wage of £112.32 for that period.[29]On 21 February 2022 the Claimant secured new employment working from home with a PR agency, as an administration assistant. The Claimant was not an employee but a self employed contractor and received no pension. Initially he earned £281.00 net per week until18 August 2022. His hours then increased from 19 August 2022 – 15 November 2022 so he was earning £319.00 for 12 weeks. Then from16 November 2022 until 12 October 2023 he received net weekly pay in excess of his weekly earnings with the first Respondent.[30]From 12 October 2023 the Claimant was made redundant from the role at the PR agency. Since then and as at the Tribunal hearing the Claimant had applied for nine jobs, mostly retail as well as one Teaching Assistant role but to date has not been successful. At the time the Claimant was made redundant many retail employers had filled their Christmas seasonal vacancies and they will not be recruiting in the new year and if they do, the Claimant will be in competition from the staff who had temporary work. The Claimant has a degree in education but in his second year of University decided this was not the career he wanted. Nonetheless he has applied to a TA vacancy but not been successful. The Claimant is not in receipt of any benefits.[32]Approximately two months before the Claimant began work for the first Respondent he was enrolled as a special constable. He began training on 18 October 2021. The Claimant has had a life long dream to become a police officer and intended to apply at the next round of recruitment by South Wales police. He was unable to do so because he had been suspended pending an investigation into the complaints made by R2 and R3. We return to this below. Findings in respect of injury to feelings – harassment claims[33]The Claimant was personally made to feel very uncomfortable on a significant number of occasions by R4 due to comments he made both to the Claimant and to his colleagues. The Claimant found these comments to be totally inappropriate and they caused him significant feelings of discomfort and unease.[34]Regarding the “sexy legs” comments the Claimant did not know if R4 was joking but at the time and for some time after, the message made him feel very uncomfortable.[35]Regarding R4 discussing sexual activity with a colleague in the office, the Claimant found this to be completely unnecessary and utterly revolting.[36]Regarding the masturbation comment, this made the Claimant feel really awkward.[37]The Claimant found R4 was hugely prejudiced against people who were homosexual and against members of the trans community. The Claimant found these comments particularly offensive and could not believe that R4 thought it was appropriate to speak like that about people who were homosexual/trans at all, let alone in the workplace. The Claimant found R4’s ignorance and prejudice to be astounding and found the way R4 treated members of the team who were gay, trans and foreign was demeaning and humiliating and thought the ignorance and the disrespect he demonstrated towards them was absolutely horrifying.[38]After R4 made the comment regarding the “mental health boy’s club”, R4 looked at the Claimant and said, ”no offence” and so it was clear he knew full well that what he said would been hurtful to the Claimant. The Claimant was very offended by R4’s comments. The Claimant found this to be deplorable and shocking given R4 knew of the Claimant’s mental health issues. Findings in respect of injury to feelings – PID detriments and victimisation detriments[39]The Claimant worked with Person A who was employed by R1.[40]The Claimant worked in a different store to Person A but noticed that Person A was treated differently to the other staff by R4. Jokes were made about their1 intimate personal appearance by R4 and R5.[41]Person A told the Claimant and D that R4 would watch them on CCTV when he was not at work to ensure they were always busy and that they had to keep moving or R4 would reprimand them. Person A told the Claimant and D that they often had to cover R4’s shifts but would not be permitted to clock in, be paid or claim the food allowance for that shift. The Claimant and D also observed Person A had very little money and had shoes with holes in. C had asked them why they did not buy new shoes and Person A told the Claimant and D that they were not allowed to as R4 was in control of their bank and credit cards and would not permit them to buy shoes. R4 is alleged to have retained Person A’s wages and provided them with a small allowance. If Person A ordered a supermarket delivery R4 would review and edit the order removing snack items stating the reason was he did not want them to get fat.[42]The Claimant purchased Person A new shoes from his own money.[43]Person A also informed the Claimant and D that R4 had acted as a guarantor when they had applied to rent a property. R4 retained a set of 1 We have used gender neutral pronouns to ensure Person A remains anonymised keys to Person A’s flat and would undertake inspections whenever he chose. On one occasion the Claimant had unwittingly been taken to Person A’s flat during work time under R4’s instruction. The Claimant was unaware the flat belonged to Person A until R4 began to FaceTime staff and take and share photos of Person A’s flat and intimate personal matters.[44]On 2 May 2021 the Claimant became so concerned about the relationship between R4 and Person A that he decided to make a report to Adult Social Services. We saw corroborating emails in the bundle. He engaged with Social Services following up their request for information. Person A informed Social Services that they did not want any action to be taken and did not cooperate with their enquiry. We found this was a genuine concern on the part of the Claimant done out of concern for Person A. We accepted his evidence about his concerns and why he held them. There was also a text message in the bundle from Person A to the Claimant who had messaged Person A on 5 May 2021 after learning that they did not want to engage with the social services investigation. The Claimant told Person A he was not “pissed off” but disappointed because he knew the only way they could escape it (the alleged situation with R4) was with help from the police and he had put a lot on the line to go to the police and agreed to accompany Person A in any interviews. He acknowledged Person A’s decision but believed as a friend they were making a mistake. He reassured them they would not lose his friendship and went on to state that every time R4 “treats you like crap or you aren’t able to buy a pasty or box of coffee remember you do not have to live that life. You can get out whenever you’re ready”.[45]Person A responded “I know you’ve put a lot on the line for me. I will always be grateful for that. I just ain’t got it in me to do it to someone. I know it’s wrong, everything he does and I’m stupid for putting up with it but I can’t let him get arrested over me”.[46]The Claimant and D also reported their concerns to the police on 3 May 2021. The police visited Person A at the Claimant’s home as they had not attended the police station with Person A as had been hoped, as they had refused. The Claimant and D were with Person A but Person A declined to speak to the officers.[47]In light of that text message and the other evidence we heard concerning the relationship between R4 and Person A, we found that the Claimants genuinely believed there was an abusive relationship between Person A and R4. We did not make findings about those concerns otherwise as this was not relevant to the issues in these proceedings.[48]On 1 June 2021 D (the second Claimant in these proceedings) sent an email to the R2 raising concerns about the behaviour of R4. She was telephoned by R2 and advised R2 that the Claimant also wanted to raise a grievance / complaint. R2 then contacted the Claimant and a meeting was arranged for 9 June 2021. The Claimant confirmed he wished to pursue a formal grievance on 7 June 2021 due to the nature of the issues and concerns raised. D also confirmed the same intent due to the severity of issues. At this stage the issues had not been detailed other than to say they were serious.[49]The Claimant and D were invited to a grievance meeting on 9 June 2021 attended by R2 and R3. There were two areas of concerns relayed by the Claimant and D at this meeting. The first area was that Person A was being emotionally, financially and psychologically abused by R4. These concerns were based on conversations Person A had had with the Claimant and D. The second area was in respect of incidents that had occurred directly involving the Claimant, D and R4 (and R5 in D’s claim). The Tribunal found that the information provided to R2 and R3 at this meeting amounted to qualifying disclosures under S43B ERA 1996 and protected acts under S27 EQA 2010.[50]Following the grievance hearing the R1 and vicariously R2, R3 and R4 took steps to start removing the Claimant from the business. The findings regarding R3 were due to the wholly inadequate, prejudicial and fabricated investigation she had conducted following the Claimant’s grievance which focussed on finding reasons to dismiss the Claimant and wholly failed to investigate the allegations that had been made against R4 and R5. His keys to the store were taken away. He was removed from online management folders and as admin for the store Facebook page and the staff WhatsApp group. The same Respondents also set about constructing a fabricated and malicious disciplinary case against both Claimants and another employee who had supported the Claimants’ accounts.[51]The Claimant was suspended on 13 June 2021 by R4. The letter of suspension stated that the allegations were gross misconduct and theft. The Claimant challenged this state of affairs in an email to R2 dated 13 June 2021. He advised he had no idea what the allegations could relate to and queried why the R4 had not been suspended given the allegations that had been made against him by the Claimant and D.[52]The Claimant felt terrified about the suspension and false allegations of gross misconduct and theft and that his whole world was about to change. He felt out of control, alone and did not know who to trust. He spent a lot of the time crying out of worry and frustration and felt totally hopeless as he believed the outcome had already been decided given D had already been summarily dismissed.[53]We saw notes by R3 of a meeting between the R2, R3 and the colleague who had supported the Claimant and D’s version of events. This colleague had covertly recorded R4 admitting he would refuse to employ any further applicants with mental health issues and would falsify reasons for not taking them on if questioned. This colleague was also suspended after the Claimant’s allegations against R4 for allegedly eating food not having paid for it. These notes record that the R2 had viewed two hours of CCTV footage on 11 June 2021 and that the colleague and the Claimant had “wasted at least two hours chatting, dancing and socialising in the shop”. It goes on to record they had viewed other CCTV footage and observed “regular socialising”. In the liability judgment we found that R2 reviewed CCTV footage of the Claimant and the colleague two days after being told about the above allegations against the R4 and the focus of the investigation was on the Claimant, D and the colleague instead of R4, against whom extremely serious allegations of discrimination and abusive conduct had been made.[54]We concluded that the timing and motivation of these actions was an intention to construct a case of gross misconduct against the Claimant and D which we found to be malicious and retaliatory.[55]The colleague who supported the Claimant and D’s version of events was summarily dismissed on 14 June 2021. The Claimant was invited to a disciplinary hearing by letter dated 15 June 2021 authored by the R2. The allegations were:a. Alleged removal of stock, namely that on 11 May 2021 and 11 June 2021 the Claimant had cooked food without paying for it.b. Alleged unauthorised absence namely that on 11 May 2021 he had left the store unattended for one eight minute and one seven minute period;c. Alleged failure to devote the whole of his time and attention to duties namely that he had made personal phone calls on 11 May 2021 between 15.04 – 15.26.[56]R2 enclosed CCTV stills from 11 May 2021 to support the allegations. R2 had evidently not realised that the R4 had already discussed with the Claimant eating pizza on this date and the Claimant had kept the text messages which were before us. On 11 May 2021 R4 had sent the same CCTV stills to the Claimant on his mobile phone where the Claimant can be seen to be eating food. R4 had then telephoned the Claimant to remind him food should be eaten in the back room. There was a subsequent text message between the R4 and the Claimant that made no mention of the R4 having any issue with the Claimant’s behaviour other than he should have eaten the food in the back room. There was no mention of stealing or that the Claimant should not have been eating the food at all.[57]The Claimant explained the above to R2 and R3 at the disciplinary hearing on 20 June 2021 and showed them the text messages. He explained the food in question was spoiled and that he had always understood this could be consumed and that the dips had been paid for but left behind by a customer and due to Covid restrictions could not then be resold. The Respondents have failed to release the written and audio record of this hearing made by R3 despite repeated requests by the Claimant’s representatives.[58]We also had sight of phone records in the bundle the Claimant showed at the disciplinary hearing. These evidenced that alleged personal mobile phone calls were work related between him and Person A and the Claimant and R2. Therefore R2’s own phone records must have shown that the so called failure by the Claimant to devote his time to work by making phone calls were actually calls that had been made to R2. The Claimant was also able to show from the CCTV stills he was making work related calls on his mobile.[59]In relation to leaving the store, the footage only showed the Claimant going through the doors seven minutes apart. The Claimant had requested the CCTV from outside as he believed it would show him cleaning the outside of the store or taking out the bins. This was never provided. In relation to the food eaten on 11 June 2021 the Claimant explained it had been not fit for sale and the dips had been paid for but left behind by a customer.[60]There was no discussion or consideration of why the food consumed would not have fallen within the £18 food allowance per shift under the Claimant’s terms and conditions of employment.[61]Despite these credible and plausible explanations by the Claimant, R2 and R3 found them funny and laughed at him when he gave those explanations.[62]The Claimant was dismissed by letter dated 22 June 2021. The letter did not set out which if any of the allegations were well founded or explain any reasoning. R2 stated that “having carefully considered your responses including the fact you have a short amount of service I have decided that your employment should be terminated”.[63]In contrast R4 was treated very differently. Whilst there appears to have been an investigation, R4 was not subject to any disciplinary sanction despite R2 being in possession of the recording regarding the comments R4 had made about employees with mental health issues. R4 was sent a letter recording that his explanations were “unsatisfactory” and he should “make every effort to address shortcomings that have been identified”. It was not recorded what these shortcomings were. Events after the Claimant’s dismissal[64]On 8 July 2021 R3 reported the Claimant to the police for theft. The police log of the allegations stated as follows: “THEFT - EMPLOYEE WE HAVE DISMISSED STAFF MEMBER [A] FOR THEFT FROM STORE. ONT EH 10TH OF MAY HE IS SEEN ON CCTV TAKING SAUCE FROM THE STORE ROOM WITHOUT MAKING A PAYMENT. ON THE 11TH OF MAY HE IS SEEN SHARING A PIZZA WITH STAFF HE DIDNT PAY FOR AND AGAIN ON THE 1ST HE SHARED NACHOS WITH STAFF. HE DENIED ALL OF THESE INCIDENTS DESPITE BEING SHOWN STILL IMAGES OF THE CCTV. HE SAID "I WAS STRESSED AND DID IT TO RAISE STAFF MORALE, I MUST HAVE JUST FORGOTTEN TO TELL SOMEONE" HE HAS BEEN DISMISSED BUT WE ARE NOT AWARE OF HOW LONG THIS WAS GOING ON FOR. WE JUST HAPPENED TO FIND THESE INCIDENTS ON THE CCTV WHILE LOOKING FOR A SEPERATE INCIDENT.” (sic)[65]That report inaccurately informed the police that the Claimant had effectively admitted the allegations after being shown CCTV and gave an excuse. This was completely untrue. It must have also been untrue that the Respondents had “just happened” to find the images whilst looking for a separate incident.[66]The Claimant had initiated contact with ACAS on 4 July 2021. On 23 July 2021 he received an email from ACAS the contents of which he found very distressing. He was informed by ACAS that the Respondents had reported him to the police. The email goes on to say “the Respondents are aware you would like to enter the police force and on that basis have said they would be willing to not pursue further charges against you if you settle the matter now.” At this time the Claimant was a Special Constable and the Respondents were aware as outlined in that communication that he was applying to become a Police Constable with South Wales Police. This communication was repeated in further emails from ACAS and the Claimant reasonably understood the Respondents to be saying if he did not drop his case (although they had already reported him to the police) they would be willing to withdraw that complaint in return for him withdrawing from his Employment Tribunal. The Claimant refused to agree to the terms.[67]When the Claimant was first informed of the criminal allegations, he was distraught and became completely overwhelmed with anxiety. All of the worry and uncertainty he had felt during the time of being suspended and dismissed came flooding back, except this time, the Claimant says it was “100 times worse.” He became paranoid about the lengths the Respondents would go to for revenge. His aspirations to work in the police force felt like an opportunity suddenly hanging by a thread and was at risk of being ripped away completely.[68]On 12 August 2021 the police log confirms that all persons had been “suitably advised” and it was not in the public interest to pursue the matter as there was minimal loss and the two persons in question had been released from employment as a result.[69]On 17 October 2021 Person A sent the Claimant a text message of good luck and said that he would be amazing and they were very proud of him. This was after the Claimant was later alleged to have tried to encourage Person A into prostitution (see below).[70]We heard evidence from the Claimant as to his knowledge of South Wales police recruitment. Generally there is one round per year but the period in between can be longer. The process can take many months potentially up to one year to be appointed. Once appointment is confirmed then the remuneration begins to be paid. The Claimant intended to remain in R1’s employ during this process as the shifts gave him the flexibility and financial income to continue as a Special Constable which would have assisted his application.[71]On 11 April 2022 R2 made a new complaint against the Claimant to South Wales Police. The complaint was as follows: R2 reported he was walking around [the local town] centre and saw the Claimant in police uniform. He stated he had concerns about the Claimant’s relationship with Person A who he described as vulnerable. He described them as having had a tough life in foster care and other establishments, had financial difficulties and having shared that with the Claimant, he then suggested or encouraged them to prostitute themselves for monies and become a porn star. R2 alleged that the Claimant had accessed porn sites on Person A’s behalf and set up a profile and account in her name. It was not until Person A had to input their credit card details they had become wary and did not go through with it. 72. 72. It was unclear exactly when the Claimant became aware of this complaint but he certainly became aware by 4 May 2022 as he was served a Regulation Notice and around that time he was also suspended from his duties as a special Police Constable. The theft allegation from the previous year was also re-opened. This had the knock-on effect of his application to become a Police Constable as it had to be effectively stayed. He was required to attend a police station for a voluntary interview and engaged a criminal solicitor to represent him on 4 May 2022. There then followed a detailed investigation by the appropriate investigating authorities who concluded by 11 November 2022 there was insufficient evidence to proceed further against the Claimant.[73]The Claimant had never sat in a police interview before. He found the experience embarrassing and demoralising. Following this interview, he met up with a police welfare officer on various occasions due to the significant stress and anxiety he was experiencing. The Claimant was afraid that he could be prevented from carrying out his dream job and worse have criminal charges brought against him. He was often in tears when speaking with the welfare officer and considered quitting his role as a special constable.[74]It should be noted that the second police report came a few days following notice of the Case Management Hearing that had been listed by the Employment Tribunal. We found the timing of these complaints to be relevant to our conclusion that these complaints were maliciously made against the Claimant by the Second Respondent as retaliation for bringing his Employment Tribunal proceedings. What was particularly grotesque about the allegations were that they mirrored to a degree the allegations the Claimant had made against R4 in regards to his allegedly abusive relationship with Person A, save they went even further and alleged the Claimant, a person of good character, was attempting to gain from the prostitution of Person A. R1, R2 and R3 had done nothing about the allegations regarding the inappropriate relationship between R4 and Person A. In our liability judgment we concluded that the reports had been made on the grounds of and because of the protected disclosures / protected acts and accordingly, the Claimant succeeded in these claims.[75]The impact on the Claimant of these matters was devastating. The Claimant has described that he was horrified after finding out about the allegations, he felt he was being blackmailed by the Respondents who thought by threatening him with the loss of his dream career (which they were well aware of) he would withdraw his claims. The months that followed were the worst months of his life. In particular it was the unjustness of the extremely serious and malicious nature of the complaints concerning Person A when in fact the Respondents had evidence before them that another individual had acted in a way that was at the very least highly inappropriate and did nothing to investigate those matters yet sought to then make very serious allegations against the Claimant. The Claimant had days when he was terrified, he felt his whole world was going to change, his dream of his future career was at an end and he no longer had control of the situation. He felt alone and did not know who to trust.[76]The whistleblowing detriments and victimisation has also changed the way the Claimant views people and he now has significant trust issues. The Claimant had been an extremely trusting person and took people at face value but everything relating to the suspension, dismissal and malicious allegations has made him rethink how he views others, which will continue to affect him long term. He remains worried about further revenge and ruminates on what the Respondents will do next. He now avoids certain areas in his home town as he does not want to risk seeing R2 or R4.[77]On 05 January 2023 the Claimant was informed that the police investigation into the allegations had come to an end. The impact of this in respect of his career was that he had been set back in terms of joining the police force by one full year. The Claimant now does not know if he wants to pursue a career in the police force due to the impact of the whistleblowing detriments and victimisation.[78]We find that the periods where the Claimant was unfit for work since his dismissal are attributable to the dismissal and the victimisation detriments. Whilst the Claimant had a preexisting mental health condition this was previously well managed and under control until his dismissal and the acts of victimisation that occurred afterwards.
The Law
[79]Section 49 ERA 1996 provides: 49 Remedies(1) Where an [employment tribunal] finds a complaint [under section 48(1), (1ZA), (1A) or (1B)] well-founded, the tribunal— (a) shall make a declaration to that effect, and (b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates. …..(2) [Subject to [subsections (5A) and (6)]] The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to— (a) the infringement to which the complaint relates, and (b) any loss which is attributable to the act, or failure to act, which infringed the complainant's right.(3) The loss shall be taken to include— (a) any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and (b) loss of any benefit which he might reasonably be expected to have had but for that act or failure to act.(4) In ascertaining the loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.[80]The dismissal was a discriminatory dismissal as it was found to be a detriment under S27 EQA 2010. The compensation for loss should therefore be awarded on the principles applying to discrimination cases.[81]Al Jumard v Clwyd Leisure Ltd [2008] IRLR 345 is authority for the approach where a case involves multiple forms of discrimination. In such cases the EAT held that where more than one form of discrimination arises out of the same facts, it can be artificial and unreal to ask to what extent each discrete head of discrimination has contributed to the injured feelings, and there will be no error of law where the tribunal fails to do that. Where discriminatory heads overlap, it is not simply a case of treating both forms of discrimination wholly independently and then adding the sum for each. The degree of injury to feelings is not directly related to the number of grounds on which the discrimination has occurred. It may be, for example, that a tribunal takes the view that injury to feelings in a case of race and disability discrimination is not materially different from the injury that would have been experienced had it been race alone. Similarly, there should not be some artificial attempt to assess loss by reference to each and every alleged incident of discrimination. That is wholly unreal and would be an impossible exercise. In many cases an act of discrimination, such as failing to give a proper hearing, could be divided up into various sub-categories. The exercise would also give a wholly specious objectivity to what is inevitably a broad brush calculation.[82]Discrimination is a statutory tort which means that where two (or more) respondents are jointly responsible for an act of discrimination, harassment or victimisation, the Tribunal can award compensation on a joint and several basis.[83]In London Borough of Hackney v Sivanandan & Others [2013] EWCA Civ 22, the Court of Appeal upheld the EAT’s decision that an employment tribunal had no power to apportion a compensatory award where numerous respondents were found jointly and severally liable for an indivisible act of discrimination. In the EAT, it was held that where there are co respondents jointly responsible, the usual award will simply be that each such respondent is jointly and severally liable. In such cases, the EAT (Underhill P presiding) held that the Employment Tribunal's discretion to apportion liability to the claimant between each of the respondents exists only where the injury caused by different acts of discrimination is 'divisible' and the tribunal can—and, indeed, should—apportion to each discriminator responsibility for only that part of the damage done by them. Even then, the EAT warned that such 'split' awards should only be made where such an order is sought by one of the parties and if the proper legal basis for the discretion is clearly demonstrated in the particular case.[84]The Claimant is under a duty to mitigate his loss and the burden of proof is on the Respondent to show the Claimant has failed to mitigate his loss. Ministry of Defence v Cannock [1994] ICR 918 and Wilding v British Telecommunications Plc [2002] ICR 1079.[85]The Court of Appeal gave guidance to Tribunals when assessing future loss of earnings after a discriminatory dismissal in Wardle v Credit Agricole Corporate and Investment Bank [2011] EWCA Civ 545. Where it is at least possible to conclude that the employee will, in time, find an equivalently remunerated job (which will be so in the vast majority of cases), loss should be assessed only up to the point where the employee would be likely to obtain an equivalent job, rather than on a career-long basis, and awarding damages until the point when the tribunal is sure that the claimant would find an equivalent job is the wrong approach. This case was also relevant when considering whether an ACAS uplift should be awarded having regard to the overall size of the award.[86]In Virgo Fidelis Senior School v Boyle [2004] IRLR 268 the EAT held that protected disclosure detriments are a form of discrimination and it is appropriate to apply Vento guidelines.[87]Guidance on assessment of compensation in injury to feelings is contained in Vento v Chief Constable of West Yorkshire Police (No2) [2003] ICR 318. There are three bands.[88]In respect of claims presented on or after 6 April 2021, the Vento bands were as follows: a lower band of £900 to £9,100 (less serious cases); a middle band of £9,100 to £27,400 (cases that do not merit an award in the upper band); and an upper band of £27,400 to £45,600 (the most serious cases), with the most exceptional cases capable of exceeding £45,600.[89]Injury to feelings awards are compensatory and should compensate without punishing the discriminator. Feelings of indignation should not inflate the award.[90]Cannock is also authority for the principle that the Tribunal should not simply make calculations under different heads, and then add them up. A sense of due proportion is required and to look at the individual components of any award and then looking at the total to make sure that the total award seems a sensible and just reflection of the chances which have been assessed (per Morison J at para 132).[91]Aggravated damages can be awarded where aggravating features have increased the impact of the discriminatory act on the Claimant. Underhill P in Commissioner of Police of the Metropolis v Shaw UKEAT/0125/11/ZT cites the phrase ‘high-handed, malicious, insulting or oppressive’ behaviour’. Subsequent conduct such as conducting the trial in an unnecessarily oppressive manner, failing to apologise, or failing to treat the complaint with the requisite seriousness can also give rise to aggravated damages. Conclusions Basic award
Conclusions
[92]The Respondents submitted there should be no basic award as the Claimant does not have two year’s service. We could not find any authority to support this contention in s118 ERA 1996. This is a complaint of unfair dismissal that is well founded and as such we award the Claimant a basic award in the sum of £429.30. Compensatory award[93]The compensation is to be awarded under s124 EQA 2010 rather than s123 ERA 1996.[94]The Respondents contended that the Claimant would have left his employment in any event to become a Police Constable. Further and in the alternative, that the chain of causation was broken when he found alternative employment and any losses flowing should not be attributed to R1. R1 also submitted the Claimant had failed to mitigate his loss.[95]Our findings of fact regarding the period between dismissal and the remedy hearing and future loss are above at paragraphs 27 - 32 and 65. Applying these facts to the law we reach the following conclusions.[96]Dealing firstly with the submission about the Claimant would have left in any event to become a Police Constable. We heard that there is one round of recruitment per annum which was due to take place around October of 2021 (see paragraph 65) and this could have taken up to one year, so up to November 2022 to be appointed. Whilst we agree that but for the unlawful dismissal the Claimant was likely to have applied to become a police constable, we are not in a position to say what the chances are that application would have been successful as this would be wholly speculative. For these reasons it would not be just and equitable to reduce compensation on the basis the Claimant would have joined the police in November 2022.[97]We also reject the contention that the intervening employment changes means the losses claimed do not flow from the dismissal. The Claimant’s losses to date are attributable to the conduct of the Respondent including periods where he was unfit for work as he was rendered unfit due to the actions of the Respondent. In particular we considered whether the loss of earnings following the Claimant’s redundancy from the PR agency in the Autumn of 2023 should be attributable to the dismissal. We do not consider it would be just and equitable to end the Claimant’s loss at this point in all the circumstances of the case for the reasons below under mitigation. Mitigation[98]We consider that in all the circumstances the Claimant has taken reasonable steps to mitigate his loss. He began to look for work immediately and soon thereafter secured a temporary role. He had continued to search for a better paid role which he found at Asda. He then secured an even better paid role to the extent that by 16 November 2022 until 12 October 2023 he received net weekly pay in excess of his weekly earnings with the first Respondent. The Claimant in our judgment has reasonably mitigated his loss throughout a very difficult and distressing period during which he was facing formal police investigation into the malicious allegations that had been made by R2 and R3. During this period the Claimant experienced periods of ill health caused by the conduct of the Respondents. Following his redundancy the Claimant has applied for nine jobs, mostly retail but one Teaching Assistant role but to date not been successful.[99]We accepted that the Claimant was made redundant at a time of year which would be challenging to find retail work. He has taken reasonable steps to search for employment even applying tor a Teaching Assistant role despite not wanting to enter into that profession after his degree.[100]As the Claimant commenced a new role on 19 February 2024 (for which he is remunerated in excess of the earnings he received with the Respondent), we have awarded the Claimant pecuniary loss to that date.[101]We were invited to award the Claimant a loss of £18 per shift in respect of the loss of his food allowance he enjoyed in R1’s employment. Whilst this was a contractual benefit, we do not consider that the full amount should be awarded as the value was based on the retail price rather than what the benefit actually cost to provide to the employees. Applying a broad brush approach we consider that a sum of £7.50 per shift justly compensates the Claimant for this loss of benefit. Breach of contract[102]We found that the Claimant was entitled to 12 week’s notice yet was only paid two. We would therefore award damages for wrongful dismissal for 10 week’s pay but have calculated this loss under the pecuniary loss arising under s124 EQA 2010, being the most proportionate way of calculating these complex remedy conclusions. ACAS Uplift[103]We consider this to be a claim where it is appropriate to award a 25% uplift to the compensation award on the basis there was a wholescale failure by R1 to comply with the ACAS Code of Practice in respect of both the disciplinary procedure and the Claimant’s grievance.[104]The Claimant raised a grievance in writing with the Respondent. Whilst there was a grievance meeting this was a total sham. Thereafter there was no investigation into the grievance other than a trawl of CCTV to find grounds to dismiss the Claimant. The disciplinary procedure was a sham and we found it was malicious and motivated by and amounted to victimisation and a detriment for making protected disclosures.[105]Having regard to Wardle and Cannock we do not apply the uplift to the injury to feelings and aggravated damages as we consider that this would not be proportionate having regard to the overall size of the award. Injury to Feelings[106]As the detriment, harassment and victimsation complaints were against different Respondents we have set out our findings in respect of each complaint separately. This is a claim where there were multiple findings of discriminatory conduct as well as detriments.[107]The Claimant’s schedule of loss sought injury to feelings of £29,000 which is at the lower end of the upper Vento band and aggravated damages of £10,000.[108]We agree that the appropriate Vento band in this case is the top band. Applying Al Jumard v Clwyd Leisure Ltd we do not consider we should try and apportion different amounts to the different harassment claims as they were against the same respondents.2[109]Whilst the harassment complaints evidently had an impact on the Claimant’s feelings, apart from the matters at paragraphs 18 and 22 above, they were not all directed or aimed specifically at the Claimant. He continued to work throughout the period of employment feeling comfortable enough to share photos of LED lighting he had purchased with R4 and not calling out these behaviours until deciding along with the second Claimant to raise the behaviour of R4 with his employers in June 2021. We do not seek to derogate from the deeply offensive environment which existed but if we were considering the harassment claims alone, we would place the injury to feelings in the bottom of the middle band as not all of the conduct was directed specifically at the Claimant. For these reasons we award the Claimant £12,000 for the harassment claims.[110]The Tribunal concluded that the victimisation detriments have had a profound and devasting impact on the Claimant’s feelings and the injury suffered should be reflected appropriately. We concluded that this should be set apart from the other compensatory elements to mark the very serious and grave impact on the Claimant that was caused by those detriments. This also explains why the total injury to feelings award is higher than sought by the Claimant on his schedule of loss. For these reasons we award the first Claimant the sum of £20,000 for injury to feelings in respect of the victimisation claim.[111]We consider it appropriate to award the sum of £3,000 for the PID detriments at paragraphs 15 (a) to (i) having regard to the injury to the Claimant’s feelings (see paragraph 67). 2 We had to take a different approach in the claim brought by D as there were different claims against different respondents.[112]The injury to feelings award amount to £35,000 in total. We have, as required, stood back and looked at the total amount and are satisfied this is a just and equitable award within the appropriate Vento Band, taking into account also the ACAS uplift.[113]Turning now to the issue of aggravated damages. We agree that this is a claim where it is appropriate to make such an award. We have found that R1, R2 and R3 not only constructed a false reason to dismiss the Claimant. Following his dismissal, knowing of the Claimant’s ambition to join the police force, they made a false report to the police for theft and used the ACAS early conciliation procedure to attempt to pressurise the Claimant to withdraw his claim. They then went even further in their attempt to pressurise the Claimant to withdraw his claim. The Tribunal has found this to be one of the most shocking and spiteful acts of victimisation we have ever seen. In April 2022, R2, in a shocking act of irony, alleged the Claimant had attempted to prostitute Person A. In doing so, R2 knew of the Claimant’s allegations of a shocking category of abuse against Person A by R4, about which they had done absolutely nothing save to say his actions were “unsatisfactory”. Instead they sought to construct a case against the Claimant with the aim of bringing an end to these proceedings and ruining his ambition to become a police constable. For these reasons, we award the sum of £10,000 for aggravated damages. S38 EA 2002[114]This claim was upheld as the first Respondent failed to issue the Claimant with a compliant S1 ERA 1996 statement of terms and conditions of employment or provide updated terms when the Claimant was promoted to Shift Manager in September 2020. We consider that two week’s pay should be awarded in respect of this failure. We were not persuaded that the higher award was appropriate when standing back and looking at the totality of the award. Interest[115]We have set out the interest calculations below. We acknowledge these are complex remedy calculations but consider that it was just and equitable to calculate the interest on the different awards as against different Respondents.[116]The first act of harassment where a definitive date is provided was the comments about the Romanian colleague in October 2020. We have therefore settled on 31 October 2020 as the first act of harassment for the purpose of calculating the interest in respect of this complaint. There was a potentially earlier act in Summer / Autumn 2020 (the first sexual orientation harassment complaint) but as we do not have a definitive date it would not be in the interest of justice to start the interest accrual earlier.[117]In respect of the awards for the PID / victimisation and aggravated damages, the relevant date for the purpose of calculation is 22 June 2021. Grossing up[118]The portion above £30,000 requires to be grossed up in accordance with section 401 of the Income Tax (Earnings and Pensions) Act 2003.[119]The awards that are required to be included for the purpose of grossing up are the compensatory award (£26,451.03), injury to feelings (£35,000) and aggravated damages (£10,000) which totals £71,451.03.• Personal allowance = £12,570 (gross);• Basic rate = 20% on the next £37,700 (gross) leaving £30,160 (net);• Higher rate = 40% on the next £99,730 (gross) leaving £59,838 (net);•• Tribunal award £71,451.03 of which £30,000 will be tax free leaving £41,451.03. The Claimant has earned a gross figure of £18,412.19 in the current tax year (06 April 2023 – 05 April 2024). The first £12,570 of the salary is free of tax. The remainder of the salary (£5,842.19) is taxable at the rate of 20%. This leaves a further £31,857.81 of the award in the remaining 20% tax bracket. As such, £31,857.81 of the award will be taxable at 20% (£7,964.45) and £9,593.22 taxable at 40% (£6,395.48) meaning the total amount to be payable in tax is £14,359.93. . Calculations and breakdown of awards Automatic Unfair Dismissal 1 week x £429.30£429.30 Loss of earnings to remedy hearing (29 November 2023)• Average gross weekly pay with R - £429.30• Average net weekly pay - £340.17• EDT 22/06/21• Date of remedy hearing 29/11/23• EDT to remedy hearing = 891 days or 127.3 weeks Between 16/11/22 to 12/10/23 (47.14 weeks) there was no loss of wages as the Claimant’s salary at the PR agency was more than his salary when employed by R1. 3 Total loss to remedy hearing 127.3 x 340.17= £43,303.64 Less mitigation 3 We checked this calculation was not over claiming the loss as if we assumed a net weekly loss at the equivalent wages this came to a total of £31,852.10 in mitigation earnings. If we deduct this amount from the total loss (43303.64) this gave a net loss of £11,451.54 which is higher than the amount claimed by the Claimant. 549 (Smyths) 3182.40 (Asda) 867.15 (Asda SSP) 336.96 (Asda) 7025 PR agency Feb – Aug 22 3828 PR agency Aug 22 – 15/11/22 A figure in excess of £16036.59 between 16/11/22 – 12/10/23 for which C has given credit) 4 Total loss claimed to remedy hearing £10,064.41 Pension loss to remedy hearing 3% of 429.30 = £12.88 per week pension loss x 127.3 weeks = 1639.62 Assuming the Claimant received pension of a similar amount during his employment with Asda and applying a broad-brush approach 5we make no award for pension loss whilst with Asda. For the other remaining weeks, we award £12.88 per week. The Claimant was self employed at the PR agency and therefore would not have been provided with a work pension. Asda 05/08/21 – 02/03/22 = 210 days or 30 weeks 30 weeks x £12.88 = less 386.40 Total pension loss to hearing £1,253.22 Loss of benefit (food) We apply a loss of £7.50 per shift, per week during the period of loss on basis the value of the food equivalent would not be £18 127.3 weeks loss to hearing x (7.50 x 5) £4,773.75 Total loss to remedy hearing = 10,064.41 + 1,253.22 + 4,773.75 £16,091.38 Future loss of earnings (to 19 February 2024)• Remedy hearing to Commencement Date (‘CD’) = 82 days or 11.7 weeks Total future loss to CD £3,979.99 Pension loss to CD 3% of 429.30 = £12.88 per week x 11.7 weeks £150.70 Future loss of benefit (food) to CD (7.5 x 5) x 11.7 weeks £438.75 4 As above 5 Whilst at Asda there were a number of weeks whether the Claimant was paid SSP so the pension would have been lower but as we do not have the payslips we consider it proportionate to assess the pension loss @ the same rate for the duration of the Asda employment Total loss to CD £4,569.44 Loss of Statutory Rights £500.00 ACAS uplift 25% of total loss to remedy hearing, total loss to CD and loss of statutory rights (16,091.38 + 4,569.44 + 500) x 25% £5,290.21 Total compensation for pecuniary loss £26,451.03 Injury to feelings PID detriments – R1 vicariously liable £3,000 Harassment – R1 and R4 jointly and severally liable £12,000 Victimisation -R1. R2, R3 jointly and severally liable £20,000 Total £35,000 Aggravated damages – R1, R2 and R3 jointly and severally liable £10,000 Interest on past loss Date of first discriminatory act (31 October 2020) to date of remedy hearing (29 November 2023) = 1124 days Interest calculation – ((1124 / 2) x 0.08) /365) x 16091.38 = £1,982.11 Interest on injury to feelings awards Harassment Date of first discriminatory act (31 October 2020) to date of remedy hearing (29 November 2023) = 1124 days ((1124 x 0.08) /365 x 12,000 = £2,956.27 PID/ victimisation detriment and aggravated damages paragraphs 15(a) to (i) Date of first discriminatory act (22 June 2021) to date of remedy hearing (29 November 2023) = 890 days 890 x 0.08 x 1/365 x 3,000 + £585.21 PID/ victimisation detriment and aggravated damages paragraphs 16 (a), 16(b), 17 (a), 17(b) Date of first discriminatory act (22 June 2021) to date of remedy hearing (29 November 2023) = 890 days ((890 x 0.08) /365 x 33,000 = £6,437.26 Failure to provide S1 statement 2 weeks x £429.30£858.60
Conclusions
[1]The first second and third respondents are ordered to pay C’s costs attributable to dealing with the police reports on a joint and severable basis.[2]The first, second, third, fourth and fifth respondents are ordered to pay D’s costs attributable to dealing with the claims of D’s PID detriment and s.27 EqA claims on a joint and severable basis as the response had no reasonable prospects of success (Rule 76(1)(b)).[3]The first, second, third, fourth and fifth respondents are ordered to pay D’s costs attributable to dealing with the claims of C’s PID detriment and s.27 EqA 2010 claim on a joint and severable basis as the response had no reasonable prospect of success (Rule 76(1)(b)).[4]The sixth respondent is ordered to pay C and D’s wasted costs arising from the improper, unreasonable and negligent conduct.
the claims
[5]The defence to C’s harassment related to disability claim had no reasonable prospect of success (recording) (Rule 76(1)(b))[6]The defence to D’s sexual harassment claim had no reasonable prospect of success (Rule 76(1)(b))[7]The defence to D’s PID detriment and s.27 EqA claims had no reasonable prospects of success (Rule 76(1)(b))[8]The defence to C’s PID detriment and s.27 EqA 2010 claim had no reasonable prospect of success (Rule 76(1)(b)) Grounds of application for wasted costs against R6[9]These are as follows: a) On 15th February 2023 the Claimant’s solicitor, Emma Quenby, provided Peter Collins with a list of outstanding disclosure. That disclosure was needed before the bundle for the final hearing could be finalised. The final hearing was scheduled to begin on 1st March 2023. b) Peter Collins acted negligently in failing to respond properly, or at all, to that request for disclosure. c) The consequence of Peter Collins’ negligence was that the final hearing on the 1st March 2023 had to be adjourned. d) The Claimants incurred legal fees in respect of the aborted final hearing. They now seek to recover those wasted costs from Peninsula. e) The documents requested of the Respondents on 15th February 2023 remained outstanding until 11th July 2023, at which point Peter Collins disclosed some (but not all) of the evidence that had previously been requested. f) On 13th July 2023 the Claimants’ solicitor asked Peter Collins for the outstanding disclosure but received no reply. g) On 24th July 2023 the claimants applied for responses to be struck out for non-compliance with Orders, pursuant to rule 37(1)(c) of the Tribunal rules. The responses were struck out on 11th October 2023. The claimant had still not received the outstanding disclosure at the date of that strike out hearing. h) Peter Collins acted negligently in failing to satisfy the Claimants’ request for disclosure. i) That request had been outstanding since 15th February 2023, and had resulted in the final hearing scheduled for 1st March 2023 being vacated. j) The Claimants’ solicitor chased Peter Collins on 13th July 2023 for a response. The Claimants incurred costs in respect of this issue and seek to recover those wasted costs. k) The Claimants incurred further wasted costs in having to apply for the responses to be struck out. The Claimants now apply to recover those wasted costs.
Findings of fact
[10]R1 entered into an agreement with R6 in June 2021. After the claimants presented their claims R2 worked with the representatives on the case. A final hearing for 6-13 March 2023 was listed by Judge McDonald on 27 July 2022. In February 2023 the representative changed to Mr Collins. There was a preliminary hearing before Judge Ryan on 2 February 2023 as the C had issued a new claim and applied to amend his victimisation claim. It was agreed the new claim could be dealt with at the final hearing and this could still go ahead with some amendments to the orders for preparation of the hearing. Disclosure by copy was directed to take place no later than 16 February 2023 with the bundle due by 23 February 2023. The order is silent on a varied date for witness statements but it was later confirmed that everyone understood the date was 27 February 2023.[11]On 2 February 2023 Mr Collins wrote to R3 to update her on the outcome of the preliminary hearing. He advised witness statements had to be exchanged by 27 February 2023 and mentioned a bundle needed to be prepared but did not give a date. He advised any preparation of and / or completion of documents “will be in my hands”. A visit was then arranged to the premises and to meet the respondents. Mr Collins did not attach a copy of Judge Ryan’s order to R3 and I accept R2’s evidence that he was not aware that disclosure of documents was due by 16 February 2023.[12]The visit took place on 10 February 2023. He met with R2 and R3 and took information to draft witness statements for them but not the other respondents. He was provided with their contact details.[13]On 12 February 2023 R3 sent Mr Collins some photographs of the Neath store. On 16 February 2023 R2 sent Mr Collins further information that had been requested by the claimants including recordings of disciplinary and grievance meetings and interviews of staff, staff contracts, letters and a shop video of the walk around. On 17 February 2023 R3 sent updated photos and a video of the Neath store. On 27 February 2023 Mr Collins emailed R2 and R3 with a request for disclosure from the claimants. He told them that the Tribunal had decided to hold a case management hearing on 1 March 2023 but they need not attend. What he did not tell R2 and R3 was that the hearing had been listed as he had failed to comply with orders for disclosure or produce a bundle and the claimants had had to apply for the hearing to be vacated. In fact Mr Collins told R2 and R3 something rather different: The purpose of the hearing is for the Tribunal to be updated on the progress of the preparation of the case for the hearing starting on 06 March 2023. The legal representative for (the claimants) has raised issues as to whether the case will be ready for the hearing on 06 March 2023. However, the legal representative for (the claimants) has “shot herself in the foot” (metaphorically) by asking for documents (as set out above) late in the proceedings which she should have requested much earlier at the “disclosure” stage of the case. I will update you after the hearing as to what the Tribunal Judge decides.[14]Between 12 – 23 February 2023 the claimants solicitor was repeatedly chasing Mr Collins for an update on disclosure, bundle and chronology cast list and list of issues. R2 and R3 were not aware of this at the time.[15]On 28 February 2023 R3 emailed Mr Collins with some of the information he had requested and an explanation as to why the other information could not be provided. This was sent on to the claimants by Mr Collins just before midnight.[16]On 1 March 2023 Mr Collins emailed R2 and R3 after the 1 March 2023 hearing which had taken place before Judge Jenkins. He did not attach a copy of the order which recorded the reason the hearing due to commence on 6 March 2023 had to be postponed was because the respondents had failed to comply with Judge Ryan’s orders. Judge Jenkins postponed the final hearing and issued amended dates for compliance with the outstanding orders. R2 and R3 were told by Mr Collins that the Judge had decided to postpone the hearing as the cases were not ready as further time was needed for both parties to consider recently provided evidence. He advised the final hearing had been relisted to start on 10 July 2023.[17]On 13 May 2023 R3 had acute heart failure and was admitted to hospital later transferred to Royal Brompton Hospital in London. R3 was in hospital for 5 weeks during which time R2 stayed in London. R2 says they were reassured by Mr Collins that everything was in hand. R2 assumed that Mr Collins would be preparing their witness statements form the notes he had taken in the February visit.[18]On 15 June 2023 a further preliminary hearing took place before Judge Jenkins again. The order does not give reasons why, but the hearing was postponed again to 1-10 November 2023. Ms Quenby’s witness statement sheds light on the reasons. Mr Collins had failed to comply with Judge Jenkins order from 1 March 2023 to provide disclosure, draft index, bundle and as such again the final hearing had to be postponed. Once again revised orders were made for the bundle, list of issues, chronology ad witness statements.[19]On 11 July 2023 Mr Collins emailed R2 to advise of the new November dates and set out some of the dates for compliance. What he did not tell R2 was that he had been due to provide disclosure by 6 July 2023 and was already in breach of the order. Mr Collins asked R2 for a further copy of the documents and audio recordings of the disciplinary and grievances hearings as he had not saved the copies that had been provided to him by R3 back in February.[20]The claimants’ solicitor wrote to Mr Collins on 13 July 2023 raising further failures to comply with orders to which he failed to reply. Mr Collins failed to provide a draft bundle to the claimants’ solicitor by 20 July 2023 so on 24 July 2023 and 2 August 2023 the claimants’ solicitors wrote to the Tribunal making an application for the responses to be struck out due to the respondents’ repeated failure to adhere to the Tribunal’s orders.[21]R2 and R3 were not provided with copies of any of the correspondence or asked to provide instructions.[22]As to events after this, leading up to the strike out of the responses, R2’s evidence, which I accept in full was as follows: The Tribunal sent two letters dated 14 and 26 September asking for the respondents’ to respond as the Tribunal was considering striking out the responses as they were not actively pursued [pages 316 to 318]. It asked for responses by 28 September, to which Mr Collins did nothing, and later by 3 October 2023. Again he did not take instructions at all and we had no awareness of the strike out application or that the Tribunal was considering striking out the claim. He finally responded on 3 October at 10.17 pm [page 319]. He again did not give a formal response other than to ask for a hearing to consider the applications. On 4 October 2023, the Tribunal emailed the parties to advise that a hearing would take place on 11 October 2023 to consider the application for strike out [page 320]. At the subsequent hearing on 11 October 2023, the Tribunal ordered that the responses be struck out due to the respondents’ failure to comply with orders/directions [pages 115-116]. The written reasons for the strike out confirm that this was due to the respondents’ failure to make any substantive progress or comply with orders [Pages 117 - 125] at paragraphs 2.7.2 – 2.7.5 and 4.1 – 4.18. From the written reasons, at paragraph 2.4, Mr Collins states the reasons for the non-compliance, which were directly related to his workload, and not through a failure of the respondents to provide instructions. At para 2.4.5 it is acknowledged by Mr Collins that the “the buck is with” him. We only became aware that there was a problem when Mr Collins called us on 16 October 2023. He did not specifically state that the responses had been struck out, but instead said that the judge had taken the view that the respondents would not be required to give witness evidence at a final hearing in support of its position. It was only following numerous calls from myself and (R3), questioning the position that Mr Collins admitted they he had failed to comply with the orders and that the responses to the claim had, in fact, been struck out.[23]R2 and R3 formally complained to R6 who agreed to continue to represent them at the final hearing despite expressing concerns about a conflict of interest. They are now pursuing a professional negligence action against R6.[24]On 31 October 2022 the claimants made without prejudice offers to settle (C - £33,600 and D - £24,800). The respondents declined the offers and made counter offers of 10% of the said offer amounts. R2 was advised that the claimants claims were defendable by R6.[25]R2 was asked about the decision to report C to the police. (There were two reports to the police firstly the theft allegation on 8 July 2021 and secondly the allegations regarding Person A on 11 April 2022 – see paragraphs 64 – 66 and 71-75 of the remedy judgment for C). Both of these reports were found to be acts of victimisation. In regard to the second report the Tribunal found it to be maliciously made, grotesque and one of the most shocking and spiteful acts of victimisation we have ever seen.[26]R2 told the Tribunal that it was his decision to make the first report having genuinely believed C guilty of theft. (R3 made the actual report see paragraph 64 of the remedy judgment for C). R2 did not explain why the second report had been made. R2 told the Tribunal that he was advised by Peninsula to use the police report as “leverage”. R2 said they had been led by R6 and “led astray really badly” having never been in this situation before. R2 also told the Tribunal that the reason they did not settle the costs claims was because R6 told them the appeal had prospects of succeeding and so if they settled any matter they would use that as a defence in the civil proceedings. R1- R5 means[27]Whilst R4 and R5 remain represented by those instructed for R1 – R3, they have not engaged in these proceedings.[28]The only evidence the Tribunal has regarding R4’s means is a document setting out his monthly income as £2158.00. R4’s bank account statement was for November 2023 and showed income of £2259.77 and outgoings of £2044.70. A statement from 1 – 8 January 2024 for a bills account showed income of £1349.33 and outgoings of £996.78.[29]There was a proposal for an IVA for R5 in the bundle but this was not signed. I had sight some bank account statements: a) October to November 2023 showing payments in of £3286.05 and payments out of £3130.45; b) November to December 2023 showing payments on of £2539.27 and payments out of £2780.49 c) December 2023 to January 2024 showing payments in of £1881.16 and payments out of £1895.28. R1 – R3[30]In regards to R1 – the limited company – The financial the accounts show that it made a limited profit of £3,000 for the financial year at December 2023. I did not have any later company accounts. The 2023 accounts show that shareholders funds amounted to £71,393. R3 is registered at Companies House as a person of significant control with 75% or more of shares.[31]For 2022 – 2023 R2 and R3 appear to have very low incomes in terms of PAYE (R3 £15983.00 and R4 25866) but I note that they are likely to receive their income as dividends/ or in the capacity of R3 being the main shareholder having regard to the company accounts. I note that R1- R3 is funding litigation against R6 and was represented by Counsel for the costs hearings. R2 explained this is being funded by an overdraft.
The Law
[32]The power to award costs is set out in Part 13 of the Employment Tribunal Rules of Procedure 2024 (“the Rules”). The relevant Rules are 74, 76 and 78. 74 When a costs order or a preparation time order may or shall be made(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.(3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned. 76 The amount of the costs order (1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles; (ii) in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019, or by the Tribunal applying the same principles; (c) another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses for the purpose of, or in connection with, an individual's attendance as a witness at a hearing; (d) an amount agreed between the paying party and the receiving party in respect of the receiving party's costs. (2) Where the costs order includes an amount in respect of fees charged by a lay representative, for the purposes of the calculation of the order, the hourly rate applicable for the fees of the lay representative must not exceed the rate under rule 77(2) (the amount of a preparation time order). (3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000. 78 When a wasted costs order may be made (1) A wasted costs order is an order against a representative in favour of any party where that party has incurred wasted costs. (2) The Tribunal may make a wasted costs order in favour of a party, whether or not that party is represented, and may also make such an order in favour of a representative's own client. (3) A wasted costs order may not be made against a representative where that representative is representing a party in their capacity as an employee of that party.(4) In this rule, and in rules 79 (effect of a wasted costs order), 80 (procedure) and 82 (ability to pay), “representative” means a party's legal representative or lay representative or any employee of such representative, but it does not include a person who is not acting in pursuit of profit with regard to the proceedings. A person acting on a contingency or conditional fee arrangement is considered to be acting in pursuit of profit.(5) “Wasted costs” means costs incurred— (a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative, or (b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. 79 Effect of a wasted costs order 79. A wasted costs order may order a representative to pay the whole or part of any wasted costs of the party in whose favour the order has been made, or to disallow any wasted costs otherwise payable to the representative, including an order that the representative repay to their client any costs which have already been paid. The amount to be paid, disallowed or repaid must in each case be specified in the order.[33]Radia v Jefferies International Ltd [2020] IRLR 431, EAT sets out the approach go be taken when considering a costs order. The first question for a tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of r 76(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that the tribunal may make a costs order, and shall consider whether to do so. That is the second stage, and it involves the exercise by the tribunal of a judicial discretion.[34]Vexatious conduct was defined by Lord Bingham in Attorney General v Barker 2000 1 FLR 759, QBD (DivCt) as ‘the hallmark of a vexatious proceeding is… that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process’.[35]I was also referred to Cartiers Superfoods Ltd v Laws[1978] IRLR 315 on the meaning of vexatious.[36]I was referred in the authorities bundle to Yerrakalva v Barnsley Metropolitan Borough Council and another [2011] EWCA Civ 1255. This was a case about withdrawal.[37]Wasted costs were considered by the Court of Appeal in Ridehalgh v Horsefield [1994] Ch 205. The principles are as follows:[38]When considering whether to make a wasted costs order, a three-stage test should be applied:(i) Has the legal representative of whom complaint was made acted improperly, unreasonably or negligently?(ii) If so, did such conduct cause the applicant to incur unnecessary costs?(iii) If so, is it, in all the circumstances, just to order the legal representative to compensate the applicant for the whole or part of the relevant costs?[39]'Negligent' should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession. In adopting an untechnical approach to the meaning of negligence in this context, the Court firmly discountenanced any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence.[40]The court has jurisdiction to make a wasted costs order only where the improper, unreasonable or negligent conduct complained of has caused a waste of costs and only to the extent of such wasted costs. Demonstration of a causal link is essential.[41]In this case, privilege has been waved between the respondents so there is no issue that R6 is hampered in conducting its defence of the wasted costs application.[42]Godfrey Morgan Solicitors (in the matter of a costs order) v Cobalt Systems Ltd UKEAT/0608/10, the EAT commented that wasted costs orders too often generate arguable grounds of appeal. The EAT then set out some suggested guidance steps namely, the Tribunal should have regard to the authorities, , the three stage test in Ridehalgh, procedure, privilege and ensuring there are clear reasons. Conclusions Grounds for the application for costs against R1- R5 The respondents have acted disruptively and otherwise unreasonably in the way they have conducted these proceedings. Repeated breaches of Orders of the Tribunal.
Conclusions
[43]I have no doubt in concluding that the costs threshold has been met and that the repeated breaches of the orders outlined above mean there are grounds to consider making a costs order. However having regard to the evidence from R2, I consider that such costs are attributable to the conduct of R6. R2 sought to provide the information to their representatives and engage with the process. R1-R5 are not responsible for the repeated breaches of the orders. The Rs reported C to the police after he submitted his first claim[44]I conclude that this costs threshold is made out as against R2 and R3. I consider that this conduct was vexatious, see the Tribunal’s findings about the nature of this conduct (paragraphs 25-26 above). The conduct meets the test for vexatious conduct. I go on to consider whether I should exercise my discretion and I conclude I shall do so. I have weighed up the following factors in exercising my discretion.[45]Even if I accept that R2 and R3 were told to report C to the police by R6 as “leverage” this does not explain why the second police report was made. Further, given the remedy findings (see paragraphs 50, 53, 54, 56, 58, 60, 61, 65 – 66) the report was false advising that the claimant had admitted the allegations and the respondents had coincidentally discovered CCTV footage whereas in fact they had been trawling for footage to try and find reasons to dismiss the claimant. That the defences have been untested makes no difference here given the findings at paragraph 56 (that R4 was fully aware of the CCTV where the claimant was eating food and had taken no previous issue with it).[46]I agree and have taken into account that the claimants were young in age and on low incomes and had particular need for legal representation given the conduct of the respondents.[47]I have also taken into account the abilities to pay. I am not persuaded that the financial evidence before me should lead me to not exercise my discretion. There are funds to operate a well know fast food franchise and fund litigation against R6. There are substantial shareholder funds.[48]For these reasons costs attributable to dealing with the police reports are awarded in favour of C against R1-R3 on a joint and severable basis. Failure to properly negotiate a settlement.[49]I do not consider the costs threshold to be met here. R1’s 1 – 5 were advised by their representative to defend the claims. They acted upon that advice and reasonably believed that their representatives were acting in a professional manner in that representation. The representative was not truthful with R2 and R3 and misled and hid the actual extent of the breaches in orders which led to the responses being struck out. Costs hearing had to be adjourned[50]I do not consider the costs threshold to be met as this costs hearing could not have proceeded in any event due to the time left at the end of the hearing and that remedy had to be reserved. The defence to C’s harassment related to disability claim had no reasonable prospect of success (recording) (Rule 76(1)(b)) The defence to D’s sexual harassment claim had no reasonable prospect of success (Rule 76(1)(b))[51]I do not consider the costs threshold to be met in this regard as the respondents defences have not been tested as the responses were struck out. The defence to D’s PID detriment and s.27 EqA claims had no reasonable prospects of success (Rule 76(1)(b)) The defence to C’s PID detriment and s.27 EqA 2010 claim had no reasonable prospect of success (Rule 76(1)(b))[52]I consider the costs threshold to have been made out and I exercise my judgment in making a costs award for the same reasons as set out in paragraph 45 above. The costs attributable to dealing with these claims for C and D are awarded against R1 – R3. I have taken into account the position with the response not being tested but in my judgment, these complaints differ as they were capable of being evaluated in the absence of a response unlike the harassment complaints. There are undisputable facts surrounding what was said to ACAS, timing of the police complaints and blatant false construction of the misconduct complaints against the claimants to meet the threshold. I exercise the discretion for the same reasons at paragraphs 49 – 50. The costs of dealing with these matters are awarded in favor of C and D claimants R1- R5 on a joint and several basis. Grounds of application for wasted costs against R6[53]Has the legal representative of whom complaint was made acted improperly, unreasonably or negligently?[54]Having regard to the findings of Judge Ryan as well as the findings of fact above at paragraphs 11- 23 I find that the legal representative acted: a) Improperly – by misleading R2 and R3 as to the reasons for the repeated postponements and then not telling them the responses had been struck out due to his conduct; b) Unreasonably and negligently in the repeated failures to comply with orders and reply to the claimants solicitors.[55]It is beyond doubt that this conduct caused the claimants to incur to incur unnecessary costs. Mr McFarlane bravely sought to assert that the claimants would have incurred trial costs in any event and these were reduced because the responses were struck out. This does not negate the aborted counsel’s fees and all the other costs associated with the repeated breaches of orders, extra preliminary hearings and the constant chasing Ms Quenby had to engage in because of the representatives conduct.[56]It is just to order R6 to compensate the claimants for the costs incurred[57]The amounts of costs ands wasted costs shall be determined at a further costs hearing if they cannot be agreed. Separate orders shall be sent to the parties regarding this process. Approved by:
The Law
[58]Injury to feelings awards are compensatory and should compensate without punishing the discriminator. Feelings of indignation should not inflate the award.[59]Cannock is also authority for the principle that the Tribunal should not simply make calculations under different heads, and then add them up. A sense of due proportion is required and to look at the individual components of any award and then looking at the total to make sure that the total award seems a sensible and just reflection of the chances which have been assessed ( per Morison J at para 132).[60]Aggravated damages can be awarded where aggravating features have increased the impact of the discriminatory act on the Claimant. Underhill P in Commissioner of Police of the Metropolis v Shaw UKEAT/0125/11/ZT cites the phrase ‘high-handed, malicious, insulting or oppressive’ behaviour’. Subsequent conduct such as conducting the trial in an unnecessarily oppressive manner, failing to apologise, or failing to treat the complaint with the requisite seriousness can also give rise to aggravated damages. Conclusions Basic award
Conclusions
[61]The Respondents submitted there should be no basic award as the Claimant does not have two years’ service. We could not find any authority to support this contention in s118 ERA 1996. This is a complaint of unfair dismissal that is well founded and as such we award the Claimant a basic award in the sum of £228.96. Compensatory award[62]The compensation is to be awarded under s124 EQA 2010 rather than s123 ERA 1996. Mitigation[63]We consider that in all the circumstances the Claimant took reasonable steps to mitigate her loss. She secured work three weeks later albeit at a lower rate of pay and by 29 August 2021 had secured new employment where her losses ended. We therefore award the Claimant the loss in earnings between the date of her dismissal to 29 August 2021.[64]We were invited to award the Claimant a loss of £18 per shift in respect of the loss of her food allowance she enjoyed in R1’s employment. Whilst this was a contractual benefit, we do not consider that the full amount should be awarded as the value was based on the retail price rather than what the benefit actually cost to provide to the employees. Applying a broad-brush approach, we consider that a sum of £7.50 per shift justly compensates the Claimant for this loss of benefit. Breach of contract[65]We found that the Claimant was entitled to 12 weeks’ notice yet was only paid two. We would therefore award damages for wrongful dismissal for 10 weeks’ pay but have calculated this loss under the pecuniary loss arising under s124 EQA 2010, being the most proportionate way of calculating these complex remedy conclusions. ACAS Uplift[66]We consider this to be a claim where it is appropriate to award a 25% uplift to the compensation award on the basis there was a wholescale failure by R1 to comply with the ACAS Code of Practice in respect of both the disciplinary procedure and the Claimant’s grievance.[67]The Claimant raised a grievance in writing with the Respondent. Whilst there was a grievance meeting this was a total sham. Thereafter there was no investigation into the grievance and the Claimant’s allegations of sexual harassment were not even put to R5 according to R3’s own investigation notes. The disciplinary procedure was a sham and we found it was malicious and motivated by and amounted to victimisation and a detriment for making protected disclosures. What was also aggravating was the way in which the dismissal was carried out in particular empowering the two managers who were alleged to have harassed the Claimant to conduct the dismissal itself with no right to be accompanied to a meeting in a room alone with these individuals.[68]Having regard to Wardle and Cannock we do not apply the uplift to the injury to feelings and aggravated damages as we consider that this would not be proportionate having regard to the overall size of the award. Injury to Feelings R1, R4 and R5[69]As the detriment, harassment and victimsation complaints were against different Respondents we have set out our findings in respect of each complaint separately. This is a claim where there were multiple findings of discriminatory conduct as well as detriments. As such we have had to apportion liability. This can be seen when the sexual harassment complaints are considered. We cannot make a global award for injury to feelings as different respondents are liable for different acts.[70]The Claimant’s schedule of loss sought injury to feelings of £29,000 which is at the lower end of the upper Vento band and aggravated damages of £5,000.[71]We agree that overall, having regard to the multiple acts of discrimination that the total award should fall within the top Vento.[72]We consider it appropriate to award the sum of £3,000 for the PID detriments at paragraphs 9 (a) (b) and (c). In particular we were mindful of the impact on the Claimant of being accused of stealing and being called into an office with R4 and R5 who she had alleged to be sexually harassing her only a few days before. We had to separate out these detriments from the dismissal as R4 was not liable for the decision to dismiss whereas R4 was jointly and severally liable for the acts leading to the dismissal we concluded amounted to detriments.[73]In relation to the harassment complaints again these had to be apportioned as different acts were upheld against different Respondents. We considered that in relation to the sexual orientation, race and gender orientation, these were offensive comments made on more than one occasion and assess the injury to feelings to fall within the bottom of the lower band and award £1,500.00 for these complaints. In respect of the disability related harassment complaint this was one comment and as such we award £1,000.00 for injury to feelings. In respect of the sexual harassment complaints advanced against R1 and R4 we consider that there were two occasions where the Claimant was made to feel shocked and uncomfortable (see paragraph 19) and assess the injury to feelings at £1,500.00[74]In relation to the sexual harassment claims against R1 and R5 (see paragraphs 20, 21 and 22)we considered that the Claimant’s injury to feelings fell within the middle Vento band. The offensive and predatory comments of a highly personal nature were repeated so often the Claimant felt obliged to think about her clothing she would have to wear to work and ask other members of staff to retrieve items from the freezer. We assess injury to feelings at £9,500.00.[75]The total award for the multiple harassment complaints is £15,000 plus interest. PID detriment (dismissal ) and Victimisation detriment (dismissal) R1, R2, R4[76]See our findings of fact at paragraphs 35 – 39 setting out the injury to feelings as a result of the discriminatory dismissal. The Claimant was dismissed on the grounds of / because she had raised extremely serious allegations of discriminatory and harassing behaviours by R4 and R5. The dismissal was conducted in a brutal manner which has left the Claimant with trust issues. The Claimant chose to report serious matters to her employer trusting they would be investigated and taken seriously. Instead, the Respondents dismissed the Claimant on the basis of fabricated and malicious reasons. We consider the appropriate Vento Band to be the middle band and award the Claimant £11,000 injury to feelings for these complaints.[77]The total injury to feelings award amounts to £29,000 in total. We have, as required, stood back and looked at the total amount and are satisfied this is a just and equitable award within the appropriate Vento Band, taking into account also the ACAS uplift.[78]Turning now to the issue of aggravated damages. We agree that this is a claim where it is appropriate to make such an award. We have found that the Respondents constructed a false reason to dismiss the Claimant. The Claimant had told R2 only days earlier that R5 had sexually harassed her and that R4 was allegedly involved in extreme abuse of Person A yet R4 and R5 were permitted to call the Claimant into an office where they were both present, accused her of stealing and then summarily dismissed her. We found the manner of this dismissal to be a particularly brutal and spiteful act of victimisation. For these reasons, we award the sum of £5,000 for aggravated damages. S38 EA 2002[79]This claim was upheld as the first Respondent failed to issue the Claimant with a compliant S1 ERA 1996 statement of terms and conditions of employment or provide updated terms when the Claimant was promoted to Shift Manager. We consider that two week’s pay should be awarded in respect of this failure. We were not persuaded that the higher award was appropriate when standing back and looking at the totality of the award. Interest[80]We have set out the interest calculations below. We acknowledge these are complex remedy calculations but consider that it was just and equitable to calculate the interest on the different awards as different Respondents are liable.[81]The first act of harassment where a definitive date is provided was 1 May 2021.We have therefore settled this date as the first act of harassment for the purpose of calculating the interest in respect of this complaint.[82]In respect of the awards for the PID / victimisation and aggravated damages, the relevant date for the purpose of calculation is 19 June 2021. Grossing up[83]The portion above £30,000 requires to be grossed up in accordance with section 401 of the Income Tax (Earnings and Pensions) Act 2003.[84]The awards that are required to be included for the purpose of grossing up are the compensatory award (£5,794.68), injury to feelings (£29,000) and aggravated damages (£5,000) which totals £39,794.68.• Personal allowance = £12,570 (gross);• Basic rate = 20% on the next £37,700 (gross) leaving £30,160 (net);• Tribunal award £39,794.68 of which £30,000 will be tax free leaving £9,794.68. The Claimant has earned a gross figure of £18,225.30 in the current tax year (06 April 2023 – 05 April 2024). The first £12,570 of the salary is free of tax. The remainder of the salary (£5,655.30) is taxable at the rate of 20%. This leaves £9,794.68 of the award in the remaining 20% tax bracket. As such, £9794.68 of the award will be taxable at 20%.This means that the amount to be grossed up remains within the 20% tax band ((9,794.68/0.2) – 9,794.68 = £2,448.67). Calculations and breakdown of awards Automatic Unfair Dismissal Basic Award 1 week x £228.96£228.96 Loss of earnings to remedy hearing (29 November 2023)• Average gross weekly pay with R - £228.96• Average net weekly pay - £228.96• EDT 19/06/21• Date of remedy hearing 29/11/23• EDT to remedy hearing = 128 weeks 19/06/21 – 14/07/21 (3 weeks) unemployed £686.88 15/07/21 – 29/08/21 (6 weeks) JD Wetherspoons (£228.96 – 145.60) £500.16 Total loss claimed to remedy hearing = £1,187.04 Pension loss to remedy hearing 3% of 228.96 = £6.87 per week pension loss x 10 weeks = £68.70 Loss of benefit (food) We apply a loss of £7.50 per shift during the period of loss on basis the value of the food equivalent would not be £18 128 weeks loss to hearing x (7.50 x 3) £2,880 Total pecuniary loss to hearing 1187.04+68.70+2880 = £4,135.74 Loss of Statutory Rights £500 ACAS uplift of 25% of total loss to remedy hearing and loss of statutory rights (4135.74 + 500) x 25% = £1,158.94 Total compensation for pecuniary loss £5,794.68 Injury to feelings PID detriments £3,000 Harassment £15,000 Victimisation £11,000 Total £29,000 Aggravated damages £5,000 Interest on past loss Date of first discriminatory act (01 May 2021) to date of remedy hearing (29 November 2023) = 942 days Interest calculation – ((942/ 2 x 0.08) /365) x 5794.68 = £598.20 Interest on injury to feelings awards Harassment Date of first discriminatory act (01 May 2021) to date of remedy hearing (29 November 2023) = 942 days Sexual orientation and race ((942 x 0.08) /365) x 1500 = £309.70 Gender reassignment ((942 x 0.08) /365) x 1500 = £309.70 Disability ((942 x 0.08) /365) x 1000 = £206.47 Sexual Harassment (R1 and R4) ((942 x 0.08) /365 x 1500 = £309.70 Sexual Harassment (R1 and R5) ((942 x 0.08) /365) x 9500 = £1,961.42 PID/ victimisation detriment and aggravated damages Date of first discriminatory act (15 June 2021) to date of remedy hearing (29 November 2023) = 897 days 897 x 0.08 x 1/365 x 3,000 + 589.80 PID/ victimisation detriment and aggravated damages (dismissal) Date of first discriminatory act (19 June 2021) to date of remedy hearing (29 November 2023) = 893 days ((893 x 0.08) /365) x 16000 = £3,131.62 Failure to provide S1 statement 2 weeks x £228.96£457.92
Conclusions
[1]In a reserved judgment dated 16 September 2025 Peninsula Business Services Ltd (“R6”) was ordered to pay C and D’s wasted costs arising from the improper, unreasonable and negligent conduct of R6.[2]On 17 September 2025 the parties were ordered to write jointly within 21 days and advise whether they were able to agree costs. If not, whether they agreed to Judge Moore making a further decision on amounts without the need for a hearing, or proposed directions to enable Judge Moore to order specific amounts.[3]No replies were received from any of the parties and they were reminded to reply by an extended date of 16 October 2025. Time was extended to 25 October 2025 on agreed joint application from the claimants and R1 – R5. R6 was informed if they did not reply by return I would consider the amount of costs on the papers.[4]On 24 October 2025 the claimants representative informed the Tribunal that R6 was failing to engage or update them or the Tribunal. Agreement on costs was reached with R1 – R5 and a Judgment by Consent was issued on 30 October 2025.[5]Since then R6 has not replied to the Tribunal. R6 were sent a copy of the notice of hearing for the chambers day on 7 November 2025. R6 continues to breach Tribunal orders and fail to reply to correspondence which is indicative of the discourtesy and overall unreasonable conduct displayed by R6 in these proceedings. Amount of wasted costs sought by the claimants[6]The claimants had prepared separate costs schedules. I requested updated schedules setting out the specific wasted costs by reference to my judgment dated 16 September 2025. These were provided on 19 January 2026 and the wasted costs orders are made in respect of each claimant as set out on those schedules. Approved by: