Mrs J Burgess v Canolfan Gymunedol Ystradowen Community Centre Ltd: 1602891/2023

EMPLOYMENT TRIBUNALS

Case No 1602891/2023

Between

Mrs J BurgessClaimant

Canolfan Gymunedol Ystradowen Community Centre LtdRespondent

Before

Employment Judge Mr David Harris

Members

Mrs R Hartwell

Mr M Lewis

In person for claimant

Ms Waha for respondent

Date 18 October 2024

JUDGMENT

The Tribunal’s decision on the preliminary issue as to whether the Claimant has, or has had, a disability within the meaning of section 6(1) of the Equality Act 2010 is as follows:

[1]The Claimant is disabled by reason of physical impairments in the form of episodic dizziness and blurred vision arising from benign paroxysmal positional vertigo or nystagmus, which have had, and continue to have, a substantial and long-term adverse effect upon her ability to carry out normal day-to-day activities since December 2021.

[2]The Claimant is disabled by reason of mental impairments in the form of anxiety and episodic low mood arising from anxiety and depression, which have had, and continue to have, a substantial and long-term adverse effect upon her ability to carry out normal day-to-day activities since December 2022.

[3]The Claimant is disabled by reason of both mental and physical impairments in the form of low mood, mood swings, night sweats, aching joints, insomnia, fatigue, painful heavy bleeding, headaches, memory loss, brain fog and incontinence arising from perimenopause and menopause, which have had, and continue to have, a substantial and long-term adverse effect upon her ability to carry out normal day-to-day activities since mid-2022. Case No. 1602891/2023 Page 3 of 3

[4]The hypertension, from which the Claimant has suffered and which was diagnosed in March 2023, has not resulted in a disability within the meaning of section 6(1) of the Equality Act 2010 because the condition has not given rise to a mental or physical impairment that has had a substantial and long-term effect upon the Claimant’s ability to carry out normal day-to-day activities. ___________________________ Employment Judge David Harris Dated: 12th September 2024 Judgment entered in Register and copies sent to parties on 12 September 2024 for Secretary of the Tribunals Mr N Roche Case Number: 1602891/2023 1 of 36 EMPLOYMENT TRIBUNALS Claimant: Mrs J Burgess Respondent: Canolfan Gymunedol Ystradowen Community Centre Ltd RECORD OF A PRELIMINARY HEARING Heard at: Swansea (in public) On: 13, 17 and 18 September 2024, In Chambers 3 October 2024 Before: Employment Judge Brace Non Legal Members: Mrs R Hartwell Mr M Lewis Appearances For the Claimant: In person For the Respondent: Ms Wahabi (Consultant)

[1]The complaints of direct disability discrimination (by association) are not well-founded and are dismissed. Unfavourable treatment because of something arising in consequence of disability – s.15 EqA 2010 Case Number: 1602891/2023 2 of 36

[2]The complaints of unfavourable treatment because of something arising in consequence of disability are not well-founded and are dismissed. Harassment – s.26 EqA 2010

[3]The following complaints of harassment related to disability are well-founded and succeed:a. On 21 April 2023, Mr Belcher telling the Claimant ‘I’m surprised you have been at Streetmaster so long’ and ‘I’m watching you’; and

b. On 20 May 2023, trying to change the Claimant’s shifts from a Saturday to a Wednesday.

[4]The remaining complaints of harassment related to disability are not well-founded and are dismissed. Unfair Dismissal

[5]The complaint of unfair dismissal is well-founded. The Claimant was unfairly dismissed. Holiday pay (Working Time Regulations 1998)

[6]The complaint in respect of holiday pay is well-founded. The Respondent failed to pay the Claimant in accordance with regulation 14(2) and/or 16(1) of the Working Time Regulations 1998 from May 2022. Unauthorised deductions

[7]The complaints of unauthorised deductions from wages are not well-founded and are dismissed. Failure to provide a written statement of employment particulars

[8]When the proceedings were begun the Respondent was in breach of its duty to provide the Claimant with a written statement of employment particulars. Case Number: 1602891/2023 3 of 36

REASONS

[1]This has been an in person hearing heard over 4 days in the Wales Employment Tribunal, with the parties not being required to attend on the fourth day which was listed for deliberation only. The hearing proceeded without difficulty and no specific adjustments were required by either party save for regular breaks. The Claims and Early Conciliation

[2]The Claimant entered into early conciliation on 5 October 2023 which ended on 2 November 2023 [1].

[3]On 19 November 2023, the Claimant’s claim was filed in which the Claimant brought claims of constructive unfair dismissal, discrimination on the grounds of disability in respect of her own disabilities and her association with her disabled son, as well as complaints in relation to holiday pay, unlawful deductions from wages and failure to provide written statement of terms and conditions [2].

[4]At a case management preliminary hearing before Judge Leith on 27 February 2024, the claims of disability discrimination were clarified and a draft list of issues was included in his case management order [55]. A judgment dismissing a claim of failure to pay a redundancy payment was also dismissed following withdrawal by the claimant [74]. An amended Grounds of Resistance was filed on 26 March 2024 [78].

[5]On 22 April 2024, the Respondent conceded that the Claimant’s son was disabled for the purposes of the Equality Act 2010.

[6]The list of issues prepared by Judge Leith was subsequently amended, following permission being given by Judge Jenkins at case management preliminary hearing on 1 July 2024, to replace a direct discrimination complaint in respect of her own disabilities, with a s.15 EqA 2010 complaint and to bring an additional harassment complaint. In relation to the s.15 EqA 2010 complaint, it was recorded in the List of Issues that the ‘something arising’ was ‘the impact of her conditions on her ability to undertake the full extent of her duties’, but the Claimant has clarified that this included her absence of volunteering. A further amended Grounds of Resistance was filed following permission for that amendment [115].

[7]The Respondent concedes that the Claimant has not been given a statement of main terms and conditions. Case Number: 1602891/2023 4 of 36

[8]At a preliminary hearing on disability before Judge Harris on 12 September 2024, it was determined that the Claimant was not disabled by reason of her hypertension at the material times but was a disabled person by reason of:a. Episodic dizziness and blurred vision arising from benign paroxysmal positional vertigo from December 2021;

b. Anxiety and episodic low mood arising from anxiety and depression from December 2022; and

c. Symptoms of menopause (physical and mental) from mid-2022.

[9]We spent some time at the outset of the final hearing ascertaining the Claimant’s unlawful deduction from wages claim, the Claimant having sought to calculate how and when she considered the deductions had been made. The Claimant relies on her calculations of deductions provided in this litigation [243].

[10]After hearing evidence, the Respondent conceded that the Claimant’s claim in respect of calculation of holiday pay was well-founded insofar as the Respondent had since May 2022 calculated the Claimant’s holiday pay not on the 16.5 hours per week worked, but on 15 hours per week i.e. the Claimant’s normal working hours that had prevailed prior to the increase in her hours of 30 minutes per shift.

[11]After hearing evidence, the Respondent conceded that the Claimant’s claim in respect of calculation of holiday pay was well-founded insofar as the Respondent had since May 2022 calculated the Claimant’s holiday pay not on the 16.5 hours per week worked, but on 15 hours per week i.e. the Claimant’s normal working hours that had prevailed prior to the increase in her hours of 30 minutes per shift.

List of Issues

[12]At the outset of this final hearing, the list of issues drafted by Judge Leith as amended by Judge Jenkins and accounting for the concessions on disability and lack of statement of terms and conditions, was agreed to be the list of issues for this hearing. A copy of the agreed and amended list of issues is attached as an Appendix to this reserved judgment. Bundle

[13]The Tribunal was referred selectively to the hearing bundle of relevant documentary evidence (“Bundle”). References to the hearing Bundle (pages 1-350) appear in square brackets [ ] below. These are references to the hard copy bundle and not electronic PDF automated numbering.

[14]On the second day of the final hearing, a Supplementary Bundle of unredacted Whatsapp exchanges was admitted in evidence, following a discussion on the first Case Number: 1602891/2023 5 of 36 day regarding redacted copies of the same documents that had been included in the original bundle. References to the Supplementary Bundle (pages 1-12) appear in square brackets [Supp ] below. Schedule of Loss

[15]A schedule of loss was included in the Bundle [99] Witness Evidence

[16]The Tribunal heard evidence from the Claimant, and for the respondents, froma. David Belcher (volunteer Chairman/Trustee);

b. Daphne Jones (volunteer Trustee).

[17]All witnesses relied upon witness statements, which were taken as read. All were all subject to cross-examination, the Tribunal’s questions and re-examination. Facts

Introduction

[18]The Respondent is a limited company and is a registered charity operating a community centre (the “Centre”) and providing services to the community to people of all ages although its target audience are those who are elderly, vulnerable and disabled. It has a trust board of volunteer trustees and a small number of employed staff (5), supported by a number of volunteers (21+).

[19]The Claimant was employed by the Respondent as a Cook Assistant from March 2020, providing catering for users of the Centre including catering for events, regular Luncheon Club and for customers of the café that the Respondent also operated from the Centre. This role continued until the Claimant’s employment ended on 29 July 2023 after she submitted her resignation on 29 June 2023 giving one month’s notice to terminate. At that point, the Claimant was 49 years’ old.

[20]It is agreed that at no time was the Claimant provided with a written statement of particulars or contract of employment. Despite the lack of written terms, it was agreed that at the commencement of her employment, the Claimant would and did work for the Respondent 15 hours per week, working regular hours from 9.00am to 2.00pm, over three days each week on a Thursday, Friday and Saturday.

[21]The Claimant was later provided with a job description in 2022 which indicated that her hours were 15 hours per week [307]. She understood that this was her contract and as a result did not request a written statement of main terms and conditions. A copy of the staff handbook which contained the sickness absence policy was left in the office at the Respondent.

[22]Alongside her employment with the Respondent, the Claimant also had a second job wholly unrelated to her employment with the Respondent, working for a company Case Number: 1602891/2023 6 of 36 known as ‘ Streetmaster’, a job she was already undertaking when she commenced her employment with the Respondent.

[23]The Claimant was not the only cook employed at the Centre. A Lodeen Evans also worked as a Kitchen Supervisor but working differing days to the Claimant, working Monday-Wednesdays each week. The Respondent also employed an office administrator, Emily Jones. As the Respondent did not employ significant staff, holiday arrangement was such that staff would cover for each other during annual leave with Lodeen Evans or Emily Jones, covering for the Claimant when she was on leave and Emily Jones covering for Lodeen Evans’ leave. The Claimant did not generally provide holiday cover for either Lodeen Evans’ or Emily Jones’ annual leave at any point in her employment. Calculation of and deduction from wages from November 2021

[24]In November 2021, an issue arose regarding the calculation in the Claimant’s wages, an issue raised by David Belcher. This was discussed at the time and the Claimant received a lump sum to resolve the deduction and shortfall in wages at the time. We have no plausible evidence before us to make any findings as to how that shortfall arose, nor did we think we needed to for the purposes of this claim.

[25]It an agreed fact between the parties that wages were paid on a monthly basis, on or around the last Thursday in every month and predominantly paid in arrears but partly in advance depending when the Claimant’s shift fell that month.

[26]Whilst the Claimant explained how she had calculated shortfall in wages, namely working out how many Thursdays, Fridays and Saturdays shifts arose in each month and multiplying that by the relevant rate of pay, in examples selected the Claimant was unable to demonstrate that the wages paid were incorrect. Furthermore, from our own calculation of wages paid to the Claimant in 2023, we were unable to ascertain any discrepancy between the wages paid and wages that were payable to the Claimant in that period.

[27]On that basis, we did not find that the Claimant had proven that there was any deduction in wages in respect of wages paid in the period from 2020 to 2023. Vertigo and son’s disability

[28]Whilst we accepted that the Claimant had been off work for bouts of vertigo in December 2021 and again in January 2022, we did not consider that two days’ sickness absence in December 2021 as a result of this condition, placed the Respondent with any knowledge that the Claimant was disabled by such condition at that point.

[29]In October 2021, the Claimant’s 12 year old son was unfortunately diagnosed with a long term conditions and from May 2022 began to receive treatment for that condition, beginning with weekly infusions scheduled for a Wednesday each week. As a result of this treatment and the need to look after her son who was at that time being home-schooled, from May 2022 the Claimant dropped the Wednesday shift she worked at her job at Streetmaster. Case Number: 1602891/2023 7 of 36

[30]The Claimant confirmed in live evidence that her son’s weekly infusions reduced after a few weeks to bi-monthly infusions and, by the beginning of 2023, her son was receiving infusions every 8 weeks. As indicated, at the initial stages of his treatment, the Claimant’s son had a home tutor only returning to main stream schooling in 2023. The Claimant had no wish to work Wednesdays however already working two jobs, enabling her to take her son for his infusions when required and for her own health reasons, enabling her to rest. Change in hours/Holiday pay

[31]In May 2022, the Respondent’s café also changed its closing hours from 2.00pm to 2.30pm resulting in an additional 30 minutes of work required for catering staff each shift. The Claimant gave evidence that this was compulsory overtime which she had not objected to and that she had worked such additional hours from that time. This was also accepted as the reality of the situation by Mr Belcher.

[32]We therefore found that from around May 2022, the increase in working hours had become incorporated into the Claimant’s contractual hours such that her regular and normal contractual hours were then varied from that point to 16.5 hours per week, from 9.00am to 2.30pm on a Thursday, Friday and Saturday.

[33]David Belcher gave evidence that despite the Claimant’s hours increasing from May 2022 to 5.5 hours per shift, or 16.5 hours per three-day week, he continued to calculate the Claimant’s holiday pay on the basis of her working 15 hours per week only.

[34]We therefore found, and it was conceded by the Respondent’s representative in submissions, that holiday pay continued to be calculated on the basis of 15 hours per week, that this was incorrect and that the Claimant’s holiday pay should have been calculated on the basis of 16.5 hours per week. There was therefore a deduction in wages and a shortfall in the amounts owed to the Claimant in respect of each day of annual leave that she took from 1 May 2022. Menopause symptoms

[35]The Claimant gave evidence that by the summer of 2022 she was struggling with hot flushes and that she experienced more ‘dizzy spells’ as she termed them, and that Lodeen Evans was aware of this at that time. Again, whilst we accepted that work colleagues did know that the Claimant was experiencing menopausal symptoms of hot flushes and dizziness, in our minds it did not follow that it could be said that the Respondent ought to reasonably have known that the Claimant was disabled by such symptoms. We did not find that simply reporting menopausal symptoms to work colleagues was sufficient to fix the Claimant with knowledge of that disability. Whatsapp messages

[36]In the September of 2022, the Claimant’s father’s health unfortunately declined and in November 2022, he sadly passed away. Understandably it appears that during this period the Claimant had a certain amount of absence from work as a result. Case Number: 1602891/2023 8 of 36

[37]Although not a discrete claim, the Claimant has given evidence that in the lead up to the Christmas that year, work became busy and work colleagues, Lodeen Evans in particular, was sending her Whatsapp messages whilst she was not in work and at a time when the Claimant was working with Streetmaster. The Claimant also gave evidence that she asked her to stop but there is no suggestion that they did not, or that this conduct was in any way related to either the Claimant’s own disability or her son’s. Moreover, the Whatsapp exchanges that we were taken to [185], from both Lodeen Evans and the Claimant (“Ok hun, I’m at work so cant keep texting”) appeared to be friendly and did not indicate that the purpose of the texting was to create the requisite statutory environment for the Claimant or that it had that effect. Meeting 9 December

[38]On 9 December 2022, a meeting took place between some trustees of the Respondent and the Claimant. The Claimant brings complaints of harassment that at this meeting Mr Belcher criticised her for ‘not pulling her weight’, informing her that if she did not volunteer her time it was unlikely that she would have a job by the following year and asked her to work Wednesdays, despite being made aware that that day was reserved for hospital appointments and responsibilities for her son. She also brings a complaint of direct disability discrimination by association with her son, that Mr Belcher asked her why her husband could not take their son to his hospital appointments.

[39]Some notes of the meeting were included in the Bundle [134], which the Tribunal did not accept as a complete record of the meeting, but a summary only and indicated that the purpose of the meeting was to discuss the Claimant’s work and held some level of formality. The notes reflect that the days worked were discussed and that Saturdays and Thursdays were not busy and that the Claimant was not prepared to do more, that she did all she could. The notes also reflect that David Belcher asked the Claimant whether she was able to work more days and in particular on a Wednesday instead of a Saturday, with Saturdays being referenced as quiet days. The Claimant indicated that she did all she could and was unable to do so due to her son’s medical issues.

[40]The Claimant gave witness statement evidence that she was called into the Centre’s office that day where Mr Belcher and three other trustees were present. She says that this intimidated her, but in live evidence she indicated that her reaction was because she wasn’t expecting the trustees she didn’t know to be there, rather than how they behaved or what they said. Her statement evidence was that at this meeting, David Belcher told her that she needed to be more engaged in planning for events and that in response she in turn complained that coworkers had been sending her messages whilst she was not in work. Against that backdrop, she says that she became emotional, reminding them of her son’s illness. She says that David Belcher referenced how others were volunteering and how she needed to do the same and that she work some Wednesdays in return for the time she had taken off when her father had passed. She says she shared details of her son’s treatment and how she couldn’t work Wednesdays as a result and that David Belcher had enquired if her husband could take him and had requested a list of days when her son had hospital appointments. That evidence was not challenged on cross-examination. Case Number: 1602891/2023 9 of 36

[41]Mr Belcher gave no specific statement evidence about this meeting, save for denying that he questioned the Claimant regarding taking her son to hospital appointments and indicating that the only time he had ever suggested swapping a Saturday shift to a Wednesday was when the Claimant had complained about lack of holiday. The Claimant cross-examined him on what had been said in that December 2021 meeting and in live evidence, he said that he had asked the Claimant for a list of her son’s appointments so that she would not be bothered on those dates. He also said he was hoping that the Claimant would help out in volunteering and working additional shifts adding that if someone said ‘they can’t, they can’t’. Later in his evidence, he gave evidence that he could understand the reason for not working a Wednesday when her son was in hospital but not to work Wednesdays at all seemed ‘all wrong as [they] were short of staff’.

[42]Daphne Jones, trustee had been noted as present at that meeting from the notes. Unfortunately, her recall was very poor on almost most every issue that she was questioned about. As a consequence, even when she was emphatic in her evidence, the Tribunal did not consider her a reliable witness due to her lack of recall and she was unable to assist us in making findings

[43]The Claimant’s evidence was clear and her live evidence did not alter from her witness statement evidence. Some of David Belcher’s live evidence was at odds with the Respondent’s own meeting note [134], and which indicated that at that meeting he had in fact asked her if she was able to work Wednesdays instead of Saturdays.

[44]We therefore accepted and preferred the Claimant’s evidence as consistent and found that Belcher likely did tell the Claimant that he needed more volunteering and that her role was at risk if she did not and that he did ask the Claimant if she was able to work Wednesdays, but that it was likely that such comments and questions were asked before being made aware that days off were needed for her son.

[45]Mr Belcher denies asking the Claimant why her husband couldn’t take their son to his hospital appointments but did give evidence that he had asked her for such dates of appointments to ensure that they would not ask her to work them. We therefore found that there had been a discussion at this meeting when David Belcher asked for the dates of treatment but accepted the evidence of the Claimant and found that David Belcher had asked the Claimant whether her husband could not also take their son for infusions. It appeared to us likely as this was linked to the discussions regarding the Claimant’s ability to work Wednesdays.

[46]In both her witness statement, the Claimant confirmed that after the meeting, when she returned to the kitchen and spoke to her work colleagues, Lodeen Evans and Emily Jones, Lodeen Evans that had told her that they might not have a job soon and that Loreen appeared irritable with her. Holiday requests

[47]The Claimant has complained that from January 2023, the Respondent refused or failed to respond to some of the Claimant’s requests for annual leave. We did not find any credible evidence to support this allegation. Case Number: 1602891/2023 10 of 36

[48]The Claimant had given evidence that in December she had emailed to ask if the Respondent had received her holiday form for a day off on 13 January 2023 as she had received no response and that consequently she had asked for authorisations to be sent by email so that she could keep records for herself [139] and that she had sent subsequent holiday forms by email.

[49]We also heard evidence from David Belcher that he did sign her holiday forms and had signed all her holiday requests and that the Claimant was in fact refused only one day due to lack of cover [143]. He also gave live evidence that he didn’t really deal with emails and all requests had historically been made either verbally or by paper copy and that there was no approved system as such of emailing in holiday requests. The Claimant also accepted that forms had historically just been left in the office for David Belcher to sign and she was unable to recall whether he had or hadn’t signed later holiday requests but that she had taken off all leave that she had requested in 2023 save for that one day.

[50]We did not find on the evidence before us that there had been any refusal or failure to respond to the Claimant’s requests for leave. 30 March 2023

[51]The Claimant booked a day’s leave for 23 March 2023 [143] but as no cover could be found, she changed the date to Thursday 30 March 2023. At some point prior to this day, one of the ex-trustees of the Centre unfortunately passed away. His funeral was arranged for 30 March 2023.

[52]The Claimant has claimed that in the lead up to 30 March 2023, Emily Jones and Lodeen Evans contacted her by Whatsapp whilst she was working her second job and that David Belcher, Emily Jones and Lodeen Evans tried to pressure to cancel pre-booked leave for that day.

[53]The Claimant was asked to cancel her leave for that day to enable Lodeen Evans to attend the funeral. The Claimant refused. She gave evidence that she wished to spend time with her husband and she had an appointment booked with her GP for her hypertension.

[54]We found that the Claimant’s refusal to cancel her leave for the day of the funeral was likely gave rise to tensions between the Claimant and her colleagues, with Lodeen Evans subsequently refusing to cover for the Claimant’s leave later in May. However, in the context of the day being the funeral of an ex-trustee, it was not an unreasonable request but there was no reliable evidence before the Tribunal and we did not find, that either Lodeen Evans or Emily Jones contacted the Claimant whilst she was at work at Streetmaster regarding this and no reliable evidence that any of them, including Mr Belcher, tried to pressure her to cancel leave. She did not in fact cancel her leave on the day of the funeral. Meeting on 31 March 2023

[55]The Claimant claims that the day after the funeral, on 31 March 2023, a meeting took place with Mr Belcher with Daphne Jones in attendance. Mr Belcher denies that there was any such meeting, considering it unlikely that a formal meeting would have taken Case Number: 1602891/2023 11 of 36 place after the funeral . Daphne Jones likewise confirms that there was no such meeting. However, as indicated Daphne Jones’ recall of any of the events was scant, being unable to recall any detail and as a result, unreliable.

[56]We accepted the Claimant’s evidence and whilst we concluded that more of an informal discussion took place that day as opposed to a formal meeting, found that ithere had been a discussion regarding her unwillingness to cover Lodeen Evans’ shift the day before as Mr Belcher was likely unhappy at her refusal to cover for her to attend the funeral.

[57]We also accepted the Claimant’s evidence and found it more likely than not that Mr Belcher did query with the Claimant whether she was prepared to cover any Wednesday and volunteer more of her time. In the context of our finding that Mr Belcher was likely frustrated if not angry with the Claimant we also accepted the Claimant’s evidence ansd found that it was more likely than not that David Belcher did say to the Claimant, “We all have health problems, me included, we just have to get on with it”? Meeting on 21 April 2023

[58]On 20 April 2023, the Claimant was off sick with vertigo following an increase in her blood pressure medication [349]. The following day she spoke to David Belcher and claims that in that discussion threatened that she was not going to be entitled to any more sick pay and that she had taken too many sick days and that he asked for a copy of a full medical report and sick note. She claims that again he asked her if she was going to cover for any Wednesday work and told her “I’m surprised you’ve been at Streetmaster so long” and “I’m watching you”?

[59]The Claimant was not challenged on this evidence in cross-examination but Mr Belcher has expressly denied saying such words or that he had asked for sick records.

[60]The Claimant in fact requested medical information from her GP after this meeting [170] and subsequently referred to this in her later letter of grievance. This supported the Claimant’s oral evidence and on balance, preferred the evidence of the Claimant and found that Mr Belcher had spoken in the manner alleged. We found that by this point the relationship between the Claimant and the Respondent and her working colleagues was breaking down and that it was more likely than not that a conversation had taken place as evidenced by the Claimant, that the Claimant did again ask the Claimant to work Wednesdays, did make the comments alleged as well as asked the Claimant for sick notes and a medical report and indicate that she would not be entitled to sick pay. Meeting on 19/20 May 2023

[61]Matters appeared not to have improved on any level as on 19 May 2023, in a discussion involving both Lodeen Evans and David Belcher, when the Claimant was informed by Lodeen Evans that she had received some complaints regarding the quality of the Claimant’s food through her Facebook account. Case Number: 1602891/2023 12 of 36

[62]The meeting was not a formal disciplinary or capability meeting and was not documented but it is not disputed that this discussion took place or that David Belcher requested that the Claimant work a Wednesday, suggesting a switch from the Claimant working a Saturday shift which had become quieter, with decreased takings, in an effort to attract more Saturday customers, attributing the decreased takings to the Claimant’s food quality. The Claimant says she considered the conversation both inappropriate and humiliating. Grievance

[63]On 25 May 2023, the Claimant took into work a letter dated 1 June 2023, a letter which she relies on as her grievance (“Grievance”). The letter is not entitled ‘Grievance’ or indicates that it is a complaint but does indicate that she required a response ‘as a written acknowledgement’.

[64]In the letter she confirms that she has been recently diagnosed with hypertension and that she has also suffered vertigo and that she was currently going through the early stages of menopause. She included her sick paper and referred to the fact that she had been asked to supply medical information for her one day sick leave and stated that she had been informed that she would not be paid for future sick leave. She asked to be provided with a copy of the absence policy.

[65]She stated that she had been asked on a regular basis to work on Wednesday and change shift on a regular basis to cover staff leave but indicated that due to her son’s illness and working a second job, she was at her ‘maximum capacity’. She reported that she hadn’t been told she was volunteering enough and that it felt that her time away from the Centre was being monitored. She spoke of her mental health and stress she was experiencing but indicated that she had not taken excessive or unreasonable sick leave.

[66]She asked for written confirmation of the days she had requested for annual leave in June and July and complained about how annual leave was managed. She asked that in future, contact was only made by email. She ended by indicating that she would work her contracted hours stating that she had ‘hope that this issue is now concluded.’

[67]Whilst we found that the letter was not entitled ‘Grievance’ or ‘complaint’, she did set out a series of complaints regarding how she felt she had been treated regarding being asked on a regular basis to work on a Wednesday/change shift, being told she wasn’t volunteering enough and how her holiday leave was managed. She also sought written acknowledgement of her letter, a request for a copy of the absence policy and confirmation of her booked leave.

[68]The letter received no response, David Belcher’s evidence being that the letter was simply a list of personal issues regarding her health. We found that was not a reasonable interpretation of the letter and that not to respond or acknowledge the letter was not reasonable behaviour. No copy of the absence policy was provided to her, no acknowledgement of her leave dates and no acknowledgement of the letter was provided, verbal or written. Case Number: 1602891/2023 13 of 36

[69]We found that the letter could reasonably be interpreted as a grievance that should be addressed by an employer. It was not. Subsequent conduct

[70]The Claimant claims that after she submitted her Grievance Mr Belcher, Lodeen Evans and Emily Jones ostracised her by ignoring her and failed to greet her. However the Claimant’s own evidence was contradictory on this point and the Claimant acknowledged that this was more of a feeling that she held and had in any event arisen more after she had handed in her notice. We were not persuaded that the Claimant had demonstrated on balance of probabilities, the treatment relied on.

[71]On 24 June 2023, the Claimant alleges that Mr Belcher removed her bag from the door of the stockroom and this was the ‘last straw’ that led to her resignation. It is an agreed fact that the trustees had earlier in May ruled that bags and personal items were not to be left in the stockroom. The Claimant had hung up her own bag behind the door in the stockroom.

[72]She claims that when Mr Belcher arrived at the Centre he had in anger questioned her and had removed it and placed it on a chair. Mr Belcher’s recall differs in that his evidence was that it was the Claimant herself, after being challenged about it by him, removed the bag and threw it on a chair. Either way, the altercation resulted in the Claimant determining to resign, which she did by email on 29 June 2023 giving one month’s notice [155], her employment ending on the expiry of that notice.

[73]After her resignation, the Claimant asked when she could collect her tips, acknowledging that these were not usually divided until Christmas. She asked for her share now, advising that she was to instruct her union. Mr Belcher gave evidence that tips were not distributed until the end of the year and that some trustees did not consider that the Claimant was entitled to any share at that point. However a decision was made to allocate a share of tips collected to that date and provide them to the Claimant; that they amounted to £9.70 at that point.

[74]There was no evidence that was reliable to find that the Claimant was entitled to more or indeed any tips at that point.

[75]On 5 October 2023, the Claimant contacted ACAS and on 2 November 2023 ACAS EC Certificate was issued. On 19November 2023, the ET1 claim form was issued [2]. Legal Principles Legal Principles S.13 EqA 2010 Direct Discrimination S.13 EqA 2010 Direct Discrimination

Legal Principles

[76]Section 13(1) EqA 2010 provides that a person(a) (A) discriminates against another person

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Case Number: 1602891/2023 14 of 36

[77]It is not possible to infer unlawful discrimination merely from the fact that an employer has acted unreasonably: Glasgow City Council v Zafar

[1998] ICR 120

and in Nagarajan v London Regional Transport and others

[1999] IRLR 527

HL, the House of Lords held that the Tribunal must consider the reason why the less favourable treatment has occurred or, why the Claimant received less favourable treatment. The concept of treating someone “less favourably” inherently requires some form of comparison.

[78]Section 23 provides that when comparing cases for the purpose of Section 13 “there must be no material difference between the circumstances related to each case.” In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

Lord Scott noted that this means, in most cases, the tribunal should consider how the Claimant would have been treated if they had not had the protected characteristic. This is often referred to as the hypothetical comparator.

[79]It is well established that where the treatment of which the claimant complains is not overtly because of the protected characteristic, the key question is the “reason why” the decision or action of the respondent was taken. This involves consideration of the mental processes, conscious or subconscious, of the individual(s) responsible; see the decision of the Employment Appeal Tribunal in Amnesty International v Ahmed

[2009] IRLR 884

and the authorities discussed at paragraphs 31- 37. The protected characteristic must have had at least a material influence on the decision in question. S.15 EqA 2010 - Discrimination arising from disability

[80]Discrimination arising from disability is defined in s15 EA 2010:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[81]Section 15(2) applies only if the employer did not know (and could not reasonably have been expected to know) about the disability itself: ignorance of the consequences of the disability is not sufficient to disapply s15(1).

[82]As for the correct approach when determining section 15 claims we refer to Pnaiser v NHS England and others

UKEAT/0137/15/LA

at paragraph 31. The relevant steps to follow are summarised as follows: Case Number: 1602891/2023 15 of 36a. the tribunal must identify whether there was unfavourable treatment and by whom – no question of comparison arises;

b. the tribunal must determine the cause of the treatment, which involves examination of conscious or unconscious thought processes. There may be more than one reason but the “something” must have a significant or more than trivial influence so as to amount to an effective reason for the unfavourable treatment;

c. motive is irrelevant when considering the reason for treatment;

d. the tribunal must determine whether the reason is “something arising in consequence of disability”; the causal link between the something that causes unfavourable treatment and disability may include more than one link – a question of fact to be assessed robustly;

e. the more links in the chain between disability and the reason for treatment, the harder it is likely to be able to establish the requisite connection as a matter of fact;

f. this stage of the causation test involves objective questions and does not depend on thought processes of the alleged discriminator;

g. knowledge is required of the disability only, section 15 (2) does not extend to requirement of knowledge that the “something” leading to unfavourable treatment is a consequence of disability;

[83]It does not matter precisely which order these questions are addressed. Depending on the facts the tribunal might ask why the respondent treated the claimant in an unfavourable way in order to answer the question whether it was because of “something arising consequence of the claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to “something” that caused the unfavourable treatment.

[84]When considering justification, the role of the Tribunal is to reach its own judgment, based on a critical evaluation, balancing the discriminatory effect of the act with the business/organisational needs of the Respondent. The test is reasonable necessity and the Tribunal must make its own objective assessment, weighing the real needs of the undertaking against the discriminatory effect of the unfavourable treatment. s.26 EqA 2010 - Harassment

[85]Section 26 of the Equality Act defines harassment under the Act as follows: (1) A person (A) harasses another (B) if – A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of – h. violating B’s dignity, or i. creating an intimidating, hostile, degrading, humiliating or offensive environment for B Case Number: 1602891/2023 16 of 36 (4) In deciding whether conduct has the effect referred to in subsection 1(b), each of the following must be taken into account –a. the perception of B;

b. the circumstances of the case;

c. whether it is reasonable for the conduct to have that effect.

[86]EHRC Code Part 7 provides that unwanted conduct ‘related to’ a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic. The broad nature of the ‘related to’ element means that a finding about what is the motivation of the individual is not the only possible route to the conclusion that the conduct in question is related to the particular characteristic but nevertheless there must still be some feature of the factual matrix identified by the Tribunal which properly leads it to the conclusion that the conduct is related to the protected characteristic and the Tribunal must articulate what those features are (Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

). Burden of Proof

[87]Section 136 provides that: (2) If there are facts from which the court (which includes a Tribunal) could decide, in the absence of any other explanation, that a person (A) contravenes the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provisions.

[88]Guidance as to the application of the burden of proof was given by the Court of Appeal in Igen v Wong

2005 IRLR 258

as refined in Madarassy v Nomura International Plc

[2007] ICR 867

. The Court of Appeal emphasised that there must be something more than simply a difference in protected characteristic and a difference in treatment for the burden of proof to shift to the respondent. They are not, without more, sufficient material from which a Tribunal could properly conclude that, on the balance of probabilities, the respondent had committed an act of discrimination. In some cases, however, it is appropriate for the tribunal to dispense with the two stage analysis if it is able to make a positive finding about the reason for the treatment in question.

[89]The Court of Appeal has established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out to the tribunal’s satisfaction (i.e. on the balance of probabilities) is the second stage engaged, whereby the Case Number: 1602891/2023 17 of 36 burden then ‘shifts’ to the respondent to prove, again on the balance of probabilities, that the treatment in question was ‘in no sense whatsoever’ on the protected ground. Time limits

[90]Section 123 EqA 2010 sets the time limit for bringing any complaint in contravention of Part 5 of the EqA 2010 and provides that proceedings may not be brought after the end ofa. The period of three months starting with the date of the act to which the complaint relates, or

b. Such other period as the employment tribunal thinks just and equitable.

[91]For the purposes of s.123 EqA 2010, conduct extending over a period is to be treated as done at the end of the period and a failure to do something is to be treated as occurring when the person in question decided on it (s.123 EqA 2010). Unfair dismissal – s98 ERA 1996

[92]Section 95 ERA 1996 (“ERA 1996”) provides: For the purposes of unfair dismissal, an employee is dismissed by his employee (and subject to subsection (2)… only if (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate without notice by reason of the employer’s conduct.

[93]Section 98(4) ERA 1996 states: (4) Where the employer has fulfilled the requirements of subsection(1), the determination of the questions whether the dismissal is fair or unfair (having regard to the reason shown by the employer)(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonable in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case

[94]Lord Denning, in Western Excavating (ECC) Ltd v Sharp

[1978] 1 All ER 713

sets out the approach to constructive dismissal as follows: Case Number: 1602891/2023 18 of 36 ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. he is constructively dismissed.’

[95]Whilst conduct of the employer must be more than unreasonable, Lord Steyn in Malik v Bank of Credit; Mahmud v Bank of Credit

[1998] AC 20

gave guidance for determining if there has been a breach of trust and confidence, when he said that an employer shall not ‘…without reasonable and proper cause, conduct itself in a matter calculated (or) likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.’

[96]The burden of proof is on the employee to demonstrate that the employer’s actions have destroyed or seriously damaged trust and confidence or were calculated or likely to do so and that the employer had no proper cause for the actions in question.

[97]The claimant needs to establish his decision to resign, on the basis of the ‘last straw’, which need not in itself be a breach of contract. Dyson LJ in Omilaju v Waltham Forest London BC

[2005] All ER75

said that: ‘If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.

[98]The tribunal is therefore required to decide whether the respondent’s conduct in this case could objectively be said to be calculated, or in the alternative likely, to seriously damage confidence and trust between the claimant and the respondent. Thereafter we are required to examine whether the claimant resigned in response to that conduct, and that conduct must include a final event which contributes to earlier actions so as to make the entirety of the conduct, taken together, sufficiently serious so as to damage the relationship of confidence and trust between employer and employee.

[99]Finally, the breach must cause the employee to resign which is a question of fact for the tribunal based on the evidence before it. Case Number: 1602891/2023 19 of 36 Unlawful deductions

[100]Sections 13 and 14 Employment Rights Act 1996, provide insofar as is material as follows: 13 Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction 14 Excepted deductions (1) Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of (a) an overpayment of wages, (b) an overpayment in respect of expenses incurred by the worker in carrying out his employment made (for any reason) by the employer to the worker. Working Time Regulations 1998

[101]This provides again as far as material as follows: Entitlement to annual leave 13.—(1) Subject to paragraph (5), a worker is entitled to four weeks' annual leave in each leave year.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) A worker’s leave year, for the purposes of this regulation, begins— (a) on such date during the calendar year as may be provided for in a relevant agreement; or (b) where there are no provisions of a relevant agreement which apply— (i) if the worker’s employment began on or before 1st October 1998, on that date and each subsequent anniversary of that date; or (ii)if the worker’s employment begins after 1st October 1998, on the date on which that employment begins and each subsequent anniversary of that date. [. . .] (5) Where the date on which a worker’s employment begins is later than the date on which (by virtue of a relevant agreement) his first leave year begins, the leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (1) equal to the proportion of that leave year remaining on the date on which his employment begins. (9) Leave to which a worker is entitled under this regulation may be taken in instalments, but— (a) subject to the exception in paragraphs (10) and (11) it may only be taken in the leave year in respect of which it is due, and (b)it may not be replaced by a payment in lieu except where the worker’s employment is terminated. 10) Where in any leave year it was not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled under this regulation as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society), the worker shall be entitled to carry forward such untaken leave as provided for in paragraph (11). (11) Leave to which paragraph (10) applies may be carried forward and taken in the two leave years immediately following the leave year in respect of which it was due. Case Number: 1602891/2023 20 of 36 (12) An employer may only require a worker not to take leave to which paragraph (10) applies on particular days as provided for in regulation 15(2) where the employer has good reason to do so. Entitlement to additional annual leave 13A.—(1) Subject to regulation 26A and paragraphs (3) and (5), a worker is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2). (2) The period of additional leave to which a worker is entitled under paragraph (1) is— [. . .] (e)in any leave year beginning on or after 1st April 2009, 1.6 weeks. (3) The aggregate entitlement provided for in paragraph (2) and regulation 13(1) is subject to a maximum of 28 days.

(4) A worker’s leave year begins for the purposes of this regulation on the same date as the worker’s leave year begins for the purposes of regulation 13.

(5) Where the date on which a worker’s employment begins is later than the date on which his first leave year begins, the additional leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (2) equal to the proportion of that leave year remaining on the date on which his employment begins.

(6) Leave to which a worker is entitled under this regulation may be taken in instalments, but it may not be replaced by a payment in lieu except where— (a)the worker’s employment is terminated; or [. . .] Compensation related to entitlement to leave 14.—(1) Paragraphs (1) to (4) of this regulation apply where— (a) a worker’s employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect (“the termination date"), the proportion he has taken of the leave to which he is entitled in the leave year under [F2regulation 13] [F3and regulation 13A] differs from the proportion of the leave year which has expired. (2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3). (3) The payment due under paragraph (2) shall be— (a) such sum as may be provided for for the purposes of this regulation in a relevant agreement, or (b) where there are no provisions of a relevant agreement which apply, a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined according to the formula— where—A is the period of leave to which the worker is entitled under regulation 13 and regulation 13A; B is the proportion of the worker’s leave year which expired before the termination date, and C is the period of leave taken by the worker between the start of the leave year and the termination date. [. . .] Payment in respect of periods of leave 16.—(1) A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulation 13 and regulation 13, at the rate of a week’s pay in respect of each week of leave. (2) Sections 221 to 224 of the 1996 Act shall apply for the purpose of determining the amount of a week’s pay for the purposes of this regulation, subject to the modifications set out in paragraph (3) and the exception in paragraph (3A). [. . .] Case Number: 1602891/2023 21 of 36 (4) A right to payment under paragraph (1) does not affect any right of a worker to remuneration under his contract (“contractual remuneration") (and paragraph (1) does not confer a right under that contract)]. (5) Any contractual remuneration paid to a worker in respect of a period of leave goes towards discharging any liability of the employer to make payments under this regulation in respect of that period; and, conversely, any payment of remuneration under this regulation in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period. Conclusion Direct disability discrimination by association (Equality Act 2010 section 13)

Conclusion

[102]It is conceded that the Claimant’s son had a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about.

[103]The Claimant relies on comments made by Mr Belcher at meetings on 9 December 2022, 21 April 2023 and 20 May 2023.

[104]At the meeting on 9 December 2022, we found that Mr Belcher had asked the Claimant why her husband couldn’t take their son to his hospital appointments. However, we did not conclude that was any less favourable treatment than an appropriate comparator would have been treated. In this situation, we concluded that a comparator would have been an employee who had a need to take a child, who was not disabled, to hospital appointments and concluded that such a comparator would have been treated no better and no differently than the Claimant was treated: that Mr Belcher would have still enquired whether the Claimant’s husband and father of the (non-disabled) child could not have assisted in taking the child to appointments.

[105]On that basis, we concluded that the treatment was not less favourable treatment and not, in any event because of her son’s disability. On that basis, the complaint of direct discrimination by association in relation to comment made at the meeting on 9 December 2022 is not well-founded and is dismissed.

[106]In relation to the complaints that on 21 April 2023 and 20 May 2023, the Respondent asked the Claimant to work Wednesdays after being made aware that that was reserved for hospital appointments and responsibilities for her son, again and for the same reasons as above, we were not persuaded that the Claimant was subjected to such treatment because of her association with her disabled son.

[107]Again, the comparator was the same, namely an employee whose child was not disabled but needed hospital appointments and care. In those circumstances, the reason for the treatment was not because her son was disabled but to get the Claimant to work on a Wednesday. This was no less favourable treatment to the way that the hypothetical comparator would have been treated and the reason for the treatment was not disability. This complaint of direct discrimination was also not well-founded and was dismissed. Discrimination arising from disability (Equality Act 2010 section 15) Case Number: 1602891/2023 22 of 36

[108]The Claimant claims that the Respondent treated her unfavourably when:a. In a meeting on 31 March 2023, Mr Belcher: i. disregarded the Claimant’s health issues by asking her to work extra days and volunteer, although the Claimant indicated that she could not do so due to her health issues; and ii. said to the Claimant, “We all have health problems, me included, we just have to get on with it”

b. The Claimant also alleges that following receipt of her grievance on 30 May 2023, the Respondent failed to address the issues she had raised and/or to carry out an occupational health assessment?

[109]The Claimant has asserted that the impact of her conditions on her ability to undertake the full extent of her duties arose in consequence of her disability and that those comments were made/that treatment arose as a result of that.

[110]We did accept the Claimant’s evidence that Mr Belcher had asked the Claimant if she could work Wednesdays. We did also accept that he had said to her in that meeting “We all have health problems, me included, we just have to get on with it”.

[111]We sought to determine the cause of the treatment recognising that the ‘something’ in the s.15 EqA claim must have a significant or more than trivial influence as to amount to an effective reason for any unfavourable treatment. However, whilst we accepted that the latter comment related to health, and specifically the Claimant’s health, we concluded that it was insufficient to link it to the Claimant’s disability. Furthermore, the Claimant was not disabled by reason of hypertension in any event and her GP appointment, the day before on 30 March, likely related to that. In any event, the Respondent was not fixed with knowledge of the Claimant’s other disabilities at this point. Indeed, we concluded that it could be said that the Respondent did not have knowledge of the Claimant’s disabilities until, at the earliest, when she wrote to them in June 2022 setting out some of her health issues, a date which the Respondent has conceded is the date of knowledge.

[112]We also found that the Respondent did fail to address the issues the Claimant had raised in her letter of 30 May 2023, which we had found could reasonably have been interpreted as a grievance and failure to respond would have amounted to unfavourable treatment. However, we had not found that failure to refer the Claimant to occupational health was unfavourable treatment. As the Claimant had indicated in her own grievance, she had very little time off work and there was no basis or rationale for referring her.

[113]However, we concluded that it was more likely than not that the grievance was not met with a response as the Respondent, however unreasonable a conclusion did not consider it a grievance. Further, we concluded that it was more likely than not that the relationship between the Claimant and Mr Belcher by this time was breaking down, if not broken partly as a result of the Claimant’s intransigence over covering for Lodeen Evans to attend the funeral. Case Number: 1602891/2023 23 of 36

[114]We did not conclude that the Claimant not working on a Wednesday was something arising from her disabilities, but from her son’s disability. Section 15 EqA 2010 makes it clear that the individual must possess the protected characteristic, not the individual with whom they are associated. In any event, even if we were wrong on that issue, again we would repeat that the Respondent at that point had no knowledge of the Claimant’s disabilities.

[115]In those circumstances, none of the claims of discrimination arising from disability were well-founded and all were dismissed. Harassment related to disability (Equality Act 2010 section 26) Meeting on 9 December 2023

[116]We did find that at the meeting on 9 December 2022, Mr Belcher:a. criticised the Claimant for “not pulling her weight” informing her that if she did not volunteer her time, it was unlikely she would have a job by next year; and

b. did ask the Claimant to work Wednesdays. However we did not find that she was asked this after making Mr Belcher aware that the day was reserved for hospital appointments and responsibilities for her son, but before.

[117]However, we did not conclude that either comment was related to the Claimant’s disability or her son’s. The Claimant was not known to be disabled at that time and whilst the Respondent and Mr Belcher did know that the Claimant’s son was disabled, the comments were made before the Claimant had highlighted her inability to work Wednesdays and the link to the Claimant’s son’s disabilities at that point was not evident even though at that time the Claimant had determined that she did not wish to work Wednesdays and that the reason for that desire was linked to her son’s disability. There was no plausible evidence before us that the Claimant’s son’s disability was the cause for this being raised by Mr Belcher and this was the first occasion that this was discussed.

[118]We did not find the link between the Claimant’s son’s disability and the comments to be established such that it could be said that the comments were related to disability. On that basis, the claims of harassment related to disability in relation to the comments made on 9 December 2021, were not well-founded and were dismissed. Events leading to 30 March 2022

[119]Whilst we had found that in the period leading up to Christmas there had been social media exchanges between the Claimant and her colleagues, Emily Jones and Lodeen Evans, we had not made any positive findings that they had contacted her in the days leading up to 30 March 2023. On that basis, the Claimant has not proven her claim on the facts and any claim of harassment on this basis fails and is dismissed. Case Number: 1602891/2023 24 of 36

[120]Furthermore, whilst we did find that the Claimant was asked if she would be prepared to work on the 30 March 2023 and cancel her leave on that day, we did not make positive findings that this was ‘pressure’. Rather, she was asked if she would be prepared to cancel her day leave, a Thursday which Lodeen Evans had been arranged to cover for her, as a funeral of one of the trustees was that day and the wake was being held at the Centre.

[121]We did not consider this to be unreasonable and did not amount to ‘pressure’. In any event, even if this was ‘unwanted’ conduct for the Claimant, there was no plausible link to disability, whether the Claimant’s son or her own. This was a Thursday, not a Wednesday when the son may have needed treatment, and was a day that the Claimant normally worked therefore no link in our minds to the Claimant’s son’s disability. The Claimant wanted to day off to be with her husband albeit that she had also arranged a GP appointment for a matter unrelated to her own disabilities, a blood pressure checkup and again, we found no link to the Claimant’s disabilities such that it could be said to be related to her disability.

[122]On that basis that, even if the conduct had been unwanted, we were not persuaded it was in any way related to disability and any claim of harassment on this basis fails and is dismissed. Meeting on 31 March 2022

[123]Our findings in relation to the lead up to the 30 March 2023, also fed into our findings and conclusions in relation to the comments made at the meeting on 31 March 2023, the day after the funeral.

[124]We did accept the Claimant’s evidence that Mr Belcher had said to her in that meeting “We all have health problems, me included, we just have to get on with it”, but whilst we accepted that the comments related to health and specifically the Claimant’s health, it was insufficient to link it to the Claimant’s disability. The Claimant was not disabled by reason of hypertension and her GP appointment likely related to that. Any such comment, even if unwanted, was therefore not related to disability and the harassment claim was not well-founded and was dismissed. Meeting on 21 April 2023

[125]We then turn to the comments made on 21 April 2023, again made by Mr Belcher. Whilst we accept that the Claimant had already indicated in the December that working Wednesdays was difficult due to her son’s treatment, we did not consider that one further conversation enquiring whether the Claimant could cover on a Wednesday at any time, objectively amounted to pressuring her as such. We did find however that it is likely how she subjectively felt.

[126]We also concluded that asking her on that occasion if she could cover for leave on a Wednesday at some point was linked, and in turn related to disability as the Claimant had already indicated that she needed Wednesdays off to decompress from caring for her son and that he was having infusions on that day, which by this time the Respondent knew about. Case Number: 1602891/2023 25 of 36

[127]We did not consider that the purpose of the comment however was to create the statutory environment for the Claimant, nor was it reasonable at that point for it to have that effect. It was an isolated request and, taking into account it was to ascertain if there was any time she could cover on a Wednesday, in the context of all the circumstances of the case which was a small charity struggling to provide leave cover, it was not reasonable for the request to have that effect on the Claimant. A claim of harassment related to disability was therefore not well-founded.

[128]We did find and conclude that saying to the Claimant in the same conversation “I’m surprised you’ve been at Streetmaster so long” and “I’m watching you” was unwanted conduct and, in the context of the previous discussions with the Claimant that she needed Wednesday’s off for the care of her son, did relate to disability. It was linked insofar as Mr Belcher knew the Claimant did not wish to work Wednesdays due to her son’s disability and to comment in such way regarding the Claimant’s inability to work that day was therefore related to disability. We further accepted the Claimant’s evidence that she considered Mr Belcher’s tone to be hostile and threatening and that this had upset and intimidated her.

[129]In those circumstances, we did conclude that such comments had the effect of creating the statutory environment and amounted to harassment related to disability and that such a claim was well-founded.

[130]We also found that Mr Belcher had asked the Claimant for a medical report and sick note despite the Claimant only being absent for one day and confirmed that the Claimant would not be entitled to any sick pay. However, we considered such comments were only related to the Claimant’s health, not her son’s, and at that stage he was not aware and did not know that she was disabled by any of her conditions. Furthermore, she had gone to the GP regarding her blood pressure not any of her disabilities. Mr Belcher was likely angry with the Claimant as he perceived her as being unco-operative and inflexible about cancelling her leave the day before to enable colleagues to attend the funeral. That was likely to be the motivation for the request, a reason unrelated to disability. Therefore, whilst this would have been unwanted conduct and related to the Claimant’s health, such conduct was not related to the Claimant’s disability.

[131]The claim for harassment was therefore not well-founded and is dismissed. Meeting on 20 May 2023

[132]The next event that the Claimant relies on is 20 May 2023, when Lodeen Evans told the Claimant that there was an issue with her food quality. We fail to see how raising concerns regarding her food quality, whilst no doubt unwanted conduct, in any way related to disability. We had no evidence to link the concerns of Lodeen Evans to either the Claimant’s disabilities or in turn the Claimant’s son’s disability. On that basis a claim of harassment related to disability was not well-founded.

[133]However, our conclusion differed in relation to the further attempt by Mr Belcher, on the back of those concerns, to again revisit a change in the Claimant’s shifts from a Saturday shift to a Wednesday, on the pretext that the Claimant had been Case Number: 1602891/2023 26 of 36 responsible for loss of business on a Saturday due to her food quality . The Claimant had by that stage already told them twice that she did not wish or want to work on a Wednesday and she needed to keep that day free, not least to take her son for his treatment. Despite that, we found that Mr Belcher, some months later was again seeking some way to try to change the Claimant’s shifts and using the Claimant’s catering as a pretext for that.

[134]We concluded that the repeated requests to the Claimant to work on a Wednesday was unwanted conduct and was related to disability as, despite saying that she needed Wednesday’s off not least to take her sons for infusions, the requests were repeated.

[135]In the context of the circumstances of this case, the Claimant had indicated that the discussions were humiliating, and that whilst it might not have been the purpose of the conversation, that was the effect. Taking into account her perception of the discussion and the given circumstances, we concluded that this claim of harassment related to disability was also well-founded. Subsequent conduct

[136]We had not been persuaded by the Claimant’s evidence that Mr Belcher, Lodeen Evans or Emily Jones had ostracised the Claimant following the submission of her grievance on 30 May 2023. The Claimant has not established facts from which we could find harassment which was therefore not established on the facts and such a complaint is therefore dismissed.

[137]Further, whilst we accepted that the Respondent had paid the Claimant £9.70 only in respect of tips for the portion of the year she had worked up to her resignation, again the Claimant had not factually established her claim and this claim of harassment was also dismissed. Time

[138]Whilst we concluded that any act prior to 6 July 2023 was on the face of it out of time, the Claimant had presented a grievance in May 2023 which had not been dealt with by 6 July 2023 and in those circumstances, we concluded that it was just and equitable to extend time. Constructive Unfair Dismissal

[139]In relation to the constructive dismissal complaint, we did not conclude that behaviour of the Respondents and in particular Mr Belcher, at the December 2021 meeting, could be said to be conduct that was calculated to or likely to destroy or seriously damage trust and confidence. Whilst no doubt this was a terribly difficult time for the Claimant, just having lost her father, this should not prevent the Respondent from raising concerns that they needed more time from her or that there was a risk that she might not have a role unless she volunteer that time. Furthermore, asking the Claimant whether she could not work Wednesdays and/or enquiring as to whether her husband could assist her with regard to their care for their son, was not in our view conduct that could be said to be calculated or likely to destroy or seriously Case Number: 1602891/2023 27 of 36 damage trust and confidence . Further, in these circumstances, we concluded that they had proper cause for making such enquiries of the Claimant.

[140]We had not found that there had been a refusal or failure to respond to some of the Claimant’s requests and this was not a factor in our deliberations on the constructive dismissal claim. Likewise, we were not persuaded that there had been any failure on the Respondent’s part to resolve any unpaid wages nor indeed that the Claimant had persuaded us that she had raised such a matter as an ongoing issue.

[141]The relationship between the parties appears to have deteriorated over the end of March 2023 however, and in particular over the day of the funeral of one of the Respondent’s trustees on 30 March 2023. The Respondent, not unreasonably, sought to persuade the Claimant to relinquish her leave for that day to enable her colleague, Lodeen Evans, to have the day off. We say not unreasonably, as we accept that this was the funeral of an important member of the trust board and a funeral on that day would have been important for trustees and staff alike. If they sought to persuade the Claimant to cancel her leave, we did not view that as conduct calculated or likely to damage trust and confidence. In any event, we concluded that the Respondent had reasonable and proper cause for such conduct.

[142]However it seems that the Claimant’s intransigence over this day of leave was likely to have impacted on relationships between the Claimant and Mr Belcher and her work colleagues alike. It is likely that Mr Belcher was frustrated with the Claimant and this was the start of the breakdown the relationship.

[143]This was compounded by Mr Belcher when, on 21 April 2023 and after the Claimant had a day’s sickness absence, we found that he had made the comments to the Claimant regarding her time at Streetmaster and that he was ‘watching’ her or words to that effect, comments that we concluded were both discriminatory and likely to seriously damage her trust and confidence in the employment relationship, comments that Mr Belcher had no reasonable or proper cause for saying. Furthermore, asking for medical reports and fit notes after one day of absence, whilst not discriminatory was also likely to further erode that trust and again we were not persuaded that such a request was reasonable or that Mr Belcher had proper cause for doing so.

[144]Despite the Claimant having made clear that she would not work Wednesdays, to ask her again to work Wednesdays in the context of knowing her domestic position with her son, and that she already had a second job with Streetmaster would also further contribute to the damage to the relationship.

[145]It was clear that matters came to a head with the meeting on 20 May 2023. We did not conclude that this was a formal disciplinary or capability meeting, but accepted it was an informal discussion and placed little to no weight on the lack of documentary evidence, or official minutes regarding the meeting. It was a meeting to discuss the Claimant’s cooking and to discuss concerns regarding the quality of her food. Arguably it should have been more formal but it was not and it was a meeting that does not appear to have been handled well leaving the Claimant upset. Mr Belcher took the opportunity to use the concerns regarding the Claimant’s Case Number: 1602891/2023 28 of 36 cooking to address once again, the Claimant moving from a Saturday to a Wednesday shift. Taking into account the Claimant’s repeated refusal to do so coupled with explanation why not, we considered such an attempt to be both harassment related to disability and conduct likely to destroy or seriously damage the trust and confidence between the two. Furthermore, we do not consider that he had reasonable or proper cause for doing so as the explanations that the Respondent sought to provide as justification for raising concerns regarding both the Claimant’s catering and changing the days, appeared to the Tribunal to be without merit.

[146]The Claimant did not resign immediately however. Rather, she put in what she considered to be a grievance in which she responded to queries regarding her health but also raised her own concerns regarding the pressure she was feeling to alter her working hours and days.

[147]Whilst we had not found that the Claimant had proven that Mr Belcher and/or colleagues were ignoring her, no response was received or even an acknowledgement was given for that letter over the following weeks. This too would have further seriously damaged the necessary trust and confidence in the relationship and that was the case irrespective of whether the Respondent had genuinely concluded that it was not a formal grievance. Again, we concluded that there was no reasonable or proper cause for failing to even acknowledge that letter, or to respond to the Claimant’s requests for a copy of the absence policy, and that this in itself would be conduct that was likely destroy or to seriously damage trust and confidence in the employment relationship entitling the Claimant to resign. Compounding this was the fact that at no time had the Claimant received a statement of main terms and conditions.

[148]There had in our view been a failure to comply with the ACAS Code of Practice regarding the Claimant’s grievance in that:a. There had been a delay in dealing with the Claimant’s concerns to the extent that they had not been dealt with at all by the date of the Claimant’s resignation;

b. There had been no acknowledgement of her concerns and in turn no meeting, when she could have been accompanied, to discuss her concerns;

c. There had been no decision on appropriate action in relation to her concerns.

[149]Indeed, by 24 June 2023, the Claimant had still not had an acknowledgement to her letter of 30 May 2023 and we concluded that matters likely came to a head that day. Whilst we did not find that Mr Belcher had thrown or even removed the Claimant’s bag, there was clearly an element of ill-will between the two at this stage and this, coupled with the complete lack of any response or acknowledgement of the Claimant’s grievance submitted a few weeks previously on 30 May 2022, gave rise to the Claimant’s resignation a few days later on 29 June 2023.

[150]We concluded that in those circumstances, the Respondent had by that point behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent and had no reasonable and proper cause for doing so. We further concluded that the Claimant Case Number: 1602891/2023 29 of 36 resigned in response to that breach . The resignation was because of the Respondent’s repudiatory breach and not for any other reason and that the Claimant had not delayed before she had resigned.

[151]The Respondent had not demonstrated a potentially fair reason for the dismissal and in those circumstances concluded that the dismissal was also unfair. The claim for constructive unfair dismissal was also well founded and succeeds. Unauthorised deduction from wages

[152]The claim for unauthorised deduction from wages is not well-founded and is dismissed. There was no plausible evidence that any discrepancies in pay were not rectified in October 2021 and/or any unlawful deductions arose after that date. Holiday pay and failure to provide statement of particulars

[153]The Respondent did not calculate holidays on the basis of the Claimant’s working hours from 1 May 2022 and did not provide the Claimant with a statement of particulars compliant with s.1 Employment Rights Act 1996.

[154]The claim in respect of holiday pay, from May 2022 to the date of termination calculated on the basis of a 15 hour week not 16.5 hours per week, and the complaint in respect of a failure to provide the Claimant with a statement of particulars are both conceded but in any event, well founded and succeed.

Remedy

[155]A one day hearing to determine remedy will be listed. ……………………………. Employment Judge R Brace 18 October 2024 Reserved Judgment and Reasons

The Issues

[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 6 July 2023 may not have been brought in time.

1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

1.3 Was the unauthorised deductions complaint made within the time limit in 23 of the Employment Rights Act 1996? The Tribunal will decide:1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made?

1.3.2 If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?

1.3.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?

1.3.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?

[2]Unfair dismissal Case Number: 1602891/2023 31 of 362.1 Was the Claimant dismissed?2.1.1 Did the Respondent do the following things:2.1.1.1 The factual allegations relied upon as constituting the complaints of discrimination?

2.1.1.2 Fail to acknowledge the Claimant’s grievance submitted on 30 May 2023? The Respondent’s case is that the letter of 30 May 2023 did not constitute a grievance.

2.1.1.3 Fail to follow the ACAS Code of Practice with regards to the Claimant’s grievance?

2.1.1.4 Fail to document the meeting on 20 May 2023 with the Claimant at which the standard of work was raised? The Respondent’s case is that the meeting was not a formal disciplinary or capability meeting.

2.1.1.5 Fail to provide the Claimant with a written statement of particulars?

2.1.1.6 Fail to provide the Claimant with copies of the Respondent’s policies, including the absence policy when she requested this in the letter dated 30 May 2023?

2.1.1.7 Refuse or fail to respond to some of the Claimant’s requests for annual leave (from January 2023 onwards)?

2.1.1.8 Fail to resolve the issues with underpaid wages, which the Claimant says continued sporadically until the end of her employment?

2.1.1.9 On 24 June 2023, Mr Belcher removing the Claimant’s bag from the door of the stockroom?

2.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:2.1.2.1 whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and

2.1.2.2 whether it had reasonable and proper cause for doing so.

2.1.3 Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.

2.1.4 Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

2.2 If the Claimant was dismissed, what was the reason or principal reason for dismissal - i.e. what was the reason for the breach of contract? The Respondent says that it was some other substantial reason. Case Number: 1602891/2023 32 of 36

2.3 Was it a potentially fair reason?

2.4 Did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the Claimant?

2.5 The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case.

[3]Discrimination arising from disability (Equality Act 2010 section 15)3.1 Did the Respondent treat the Claimant unfavourably by:3.1.1 In a meeting on 31 March 2023, Mr Belcher disregarded the Claimant’s health issues by asking her to work extra days and volunteer, although she indicated that she could not do so due to her health issues?

3.1.2 In a meeting on 31 March 2023, Mr Belcher said to the Claimant, “We all have health problems, me included, we just have to get on with it”?

3.1.3 Following receipt of the Claimant’s grievance on 30 May 2023, the Respondent failed to address the issues she had raised and/or to carry out an occupational health assessment?

3.2 Did the following things arise in consequence of the Claimant’s disability: The impact of her conditions on her ability to undertake the full extent of her duties

3.3 Was the unfavourable treatment because of that thing?

3.4 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: 3.4.1 Keeping up with running and efficient service to ensure a balance between keeping customers happy with the service and ensuring that staff members were not put under unnecessary strain or pressure.

3.5 The Tribunal will decide in particular:3.5.1 Was the treatment an appropriate and reasonably necessary way to achieve those aims; Case Number: 1602891/2023 33 of 36

3.5.2 Could something less discriminatory have been done instead;

3.5.3 How should the needs of the Claimant and the Respondent be balanced?

3.6 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?

[4]Direct disability discrimination by association (Equality Act 2010 section 13)4.1 Did the Claimant’s son have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:4.1.1 Did they have a physical or mental impairment, namely Crohn’s disease?

4.1.2 Did it have a substantial adverse effect on their ability to carry out day-to-day activities?

4.1.3 If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

4.1.4 Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the treatment or other measures?

4.1.5 Were the effects of the impairment long-term? The Tribunal will decide:4.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?

4.1.5.2 if not, were they likely to recur?

4.2 Did the Respondent do the following things:4.2.1 At the meeting on 9 December 2022, Mr Belcher asking the Claimant why her husband couldn’t take their son to his hospital appointments?

4.2.2 On 21 April 2023 and 20 May 2023, the Respondent asking the Claimant to work Wednesdays after being made aware that that was reserved for hospital appointments and responsibilities for her son?

4.3 Was that less favourable treatment? Case Number: 1602891/2023 34 of 36 The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The Claimant has not named anyone in particular who they say were treated better than they were.

4.4 If so, was it because of her son’s disability?

4.5 Did the Respondent’s treatment amount to a detriment?

[5]Harassment related to disability (Equality Act 2010 section 26)5.1 Did the Respondent do the following things:5.1.1 a meeting on 9 December 2022, Mr Belcher criticising the Claimant for “not pulling her weight” and informing her that if she did not volunteer her time, it was unlikely she would have a job by next year?

5.1.2 In the days leading up to 30 March 2023, Emily Jones and Lodeen Evans contacting the claimant by WhatsApp message while she was working her second job?

5.1.3 David Belcher, Emily Jones and Lodeen Evans trying to pressure the Claimant to cancel pre-booked annual leave on 30 March 2023?

5.1.4 In a meeting on 31 March 2023, Mr Belcher saying to the Claimant “We all have health problems, me included, we just have to get on with it”?

5.1.5 On 21 April 2023, Mr Belcher saying to the Claimant “I’m surprised you’ve been at Streetmaster so long”?

5.1.6 On 21 April 2023, Mr Belcher pressurising the Claimant to cover Wednesdays?

5.1.7 On 21 April 2023, Mr Belcher telling the Claimant “I’m watching you”?

5.1.8 On 21 April 2023, Mr Belcher asking the Claimant for a full medical report and sick notes, although the Claimant had only been absent for one day?

5.1.9 On 21 April 2023, Mr Belcher confirmed that the Claimant would not be entitled to any sick pay.

5.1.10 On 20 May 2023, Lodeen Evans telling the Claimant that there was an issue with her food quality?

5.1.11 On 20 May 2023, the Respondent trying to change the Claimant’s shifts from a Saturday to a Wednesday, on the pretext that the Claimant had been responsible for loss of business on a Saturday due to her food quality? Case Number: 1602891/2023 35 of 36

5.1.12 Mr Belcher, Lodeen Evans and Emily Jones ostracising the Claimant by ignoring her and failing to greet her after she submitted her grievance (on 30 May 2023) and resignation (on 29 June 2023)?

5.1.13 The Respondent paying the Claimant £9.70 in respect of tips for the portion of the year she had worked up to her resignation, on the pretext that the Claimant had not received tips because of her food quality?

5.2 If so, was that unwanted conduct?

5.3 Did it relate to disability?

5.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

5.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[6]Holiday Pay (Working Time Regulations 1998)6.1 What was the Claimant’s leave year? The Claimant says it was January to December.

6.2 How much of the leave year had passed when the Claimant’s employment ended?

6.3 How much leave had accrued for the year by that date? The Claimant’s case is that she had accrued more leave than the Respondent believed because she worked an extra half an hour per day, in respect of which the Respondent told her she would not get paid holiday.

6.4 How much paid leave had the Claimant taken in the year?

6.5 Were any days carried over from previous holiday years?

6.6 How many days remain unpaid?

6.7 What is the relevant daily rate of pay?

[7]Unauthorised deductions7.1 Were the wages paid to the Claimant on various dates from 2020 were less than the wages she should have been paid?

7.2 Was any deduction required or authorised by statute? Case Number: 1602891/2023 36 of 36

7.3 Was any deduction required or authorised by a written term of the contract?

7.4 Did the Claimant have a copy of the contract or written notice of the contract term before the deduction was made?

7.5 Did the Claimant agree in writing to the deduction before it was made?

7.6 How much is the Claimant owed?

[8]Statement of Particulars8.1 It is common grounds that, when these proceedings were begun, the Respondent was in breach of its duty to give the Claimant a written statement of employment particulars.

8.2 If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay.

8.3 Would it be just and equitable to award four weeks’ pay? Case Numbers: 1602891/2023 1 EMPLOYMENT TRIBUNALS Claimant: Mrs J Burgess Respondent: Canolfan Gymunedol Ystradowen Community Centre Ltd Heard at: Cardiff (CVP) On: 20 March 2025 Before: Employment Judge R Brace Members: Mr M Lewis and Ms R Hartwell Representation Claimant: In person Respondent: Ms M Wahabi (Consultant) REMEDY JUDGMENT The unanimous decision of the Tribunal is that the Respondent is ordered to pay the following compensation to the Claimant as follows: Basic Award 3 x £171.93 £773.68 Compensatory Award Prescribed element Loss of wages to remedy judgment Wages from 3 August 2023 to 22 August 2023 (3 weeks) (3 x £191.93) £515.79 Wages from September 2023 – September 2024 £9,441.23 less Wages earned from Shaw from September 2023 – September 2024 £8,344.88 £1096.35 Case Numbers: 1602891/2023 2 Total Prescribed Element £1,612.14 Loss of Statutory rights £500.00 Add ACAS uplift 25% £528.04 Total Compensatory Award £2,640.18 Total Unfair Dismissal £3,413.86 Discrimination Injury to feelings £5,000.00 ACAS uplift 25% £1,250.00 Interest @8% £6,250 x 0.08 x 699 days / 365 £957.53 £7,207.53 Total Discrimination Award Failure to provide statement of terms 2 x £171.73 £343.86 Total £10,965.25