Ms S Jackson v New Look Retailers Ltd: 1803618/2019
EMPLOYMENT TRIBUNALS
Case No 1803618/2019
Between
Ms S JacksonClaimantNew Look Retailers LtdRespondentDate 18 January 2022
JUDGMENT
The complaints of direct and indirect discrimination and failure to meet the duty to make reasonable adjustments are dismissed following a withdrawal by the claimant. RESERVED JUDGMENT The Judgment of the Employment Tribunal is that:[1]UPON the issue of the Employment Tribunal’s jurisdiction to consider the complaints brought by the claimant: 1.1. There is no jurisdiction to consider the claim of constructive wrongful dismissal brought pursuant to the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. 1.2. There is jurisdiction to consider the complaint of constructive unfair dismissal brought pursuant to Employment Rights Act 1996. 1.3. There is jurisdiction to consider the complaint of harassment related to disability brought pursuant to Equality Act 2010.[2]Pursuant to Rule 37 of schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the claimant’s complaint brought under section 15 of the 2010 Act (that she was unfavourably treated for something arising in consequence of disability) is struck out as it has not been actively pursued.[3]The respondent’s application for an Order that the claimant’s complaints in paragraph 1 shall be struck out pursuant to Rule 37 of the 2013 Rules as having no reasonable prospect of success is refused.[4]The hearing shall proceed as listed upon 27, 28 and 29 October and 1 and 2 November 2021 to determine the complaints in paragraphs 1.2 and 1.3.
REASONS
[1]This case has had a somewhat complex procedural history. It will be necessary to go through this in some detail in these reasons. It suffices to say by way of introduction that the case was listed to be heard before a full Employment Tribunal panel to be chaired by me. The case was listed for hearing between 1 and 5 March 2021. A preliminary issue arose as to the jurisdiction of the Employment Tribunal to hear the case arising out of the fact that the respondent had entered into a company voluntary arrangement under Part I of the Insolvency Act 1986. That CVA was approved by the High Court on 21 September 2020.[2]Upon 1 March 2021, the Tribunal adjourned the hearing of the case and made Orders for the parties to make written representations upon the issue of jurisdiction. The claimant’s written representations were sent to the Employment Tribunal on 26 April 2021. Those of the respondent were filed on 24 May 2021.[3]The respondent’s written representations were settled by Miss Owusu-Agyei of counsel. She appeared before the Employment Tribunal in this matter on 1 March 2021. In her written submissions, she invited the Tribunal to dismiss the claimant’s claims upon the grounds that the Tribunal has no jurisdiction to hear them or to strike out the claims upon the grounds that there were no reasonable prospects of success.[4]There was a further issue around a claim brought by the claimant of unfavourable treatment for something arising in consequence of disability. This was a claim brought pursuant to section 15 of the 2010 Act. Miss Owusu-Agyei invited the Tribunal to strike out the claimant’s section 15 complaint upon the grounds that not only did it have no reasonable prospects of success it had also not been actively pursued.[5]The Order made upon 1 March 2021 then contemplated me ruling upon the issues of jurisdiction and the summary dismissal of the claims on paper. Upon consideration of the written representations of 26 April 2021 and 24 May 2021, I caused a letter to be sent to the parties on 21 June 2021 inviting further representations. The respondent made further representations on 16 July 2021. These were supplemented by representations dated 22 July 2021 in answer to points raised by the claimant in her further submissions which were dated 10 July 2021.[6]The Tribunal shall start its analysis with a consideration of the jurisdiction issue. As will become apparent from these reasons, the Tribunal’s judgment is that jurisdiction to consider the claimant’s complaints has not been ousted by the CVA. The Tribunal will then go on to consider the issue of the summary disposal of the claims.[7]The jurisdiction issue that arises is whether the Tribunal’s jurisdiction to consider the claimant’s claims may be ousted by the terms of a CVA. There is no direct authority upon the point. At any rate, the Tribunal was not referred to any. It may be surmised that there is no such authority because the costs of litigating such a point may reasonably be supposed to outweigh any benefit likely to be obtained from proceedings brought against a company which has entered a CVA.[8]The claimant presented her claim form to the Employment Tribunal on 2 July 2019. She worked as a sales advisor for the respondent between 6 July 1999 and 8 April 2019. The respondent is the principal operating company in the New Look group which operates a retail, clothing, footwear and accessories business. The respondent presented their response on 2 August 2019.[9]The matter then became before Employment Judge Rostant at a case management preliminary hearing which was held on 8 October 2019. He identified that the claimant pursues the following complaints: 9.1. Constructive wrongful dismissal. 9.2. Constructive unfair dismissal. 9.3. Harassment related to disability.[10]The relevant disability is the physical impairment of hyperflexion. This condition causes difficulty for the claimant with day-to-day activities including standing. To alleviate the effects of the impairment upon her, at the material time with which we are concerned (being during her employment with the respondent) she needed to wear or at least preferred to wear trainers upon her feet. It was her wish so to do which led to the conduct of which the claimant complains as identified by Employment Judge Rostant.[11]The claimant’s grounds of complaint annexed to her claim form included complaints of a disability discrimination brought under the 2010 Act (in addition to the complaint of harassment). As has been said, Employment Judge Rostant identified only a complaint of harassment related to disability. As is recorded in the minute of the case management hearing, Employment Judge Rostant “explained that although she has pleaded direct and indirect discrimination and failure to make reasonable adjustments, as well as harassment, the first three claims could not be sustained.” Employment Judge Rostant ordered the parties to inform the Tribunal as soon as possible following their receipt of the case management summary should they consider that the record of the issues that arise in the case is inaccurate or incomplete in any way.[12]Pursuant to that Order, the claimant wrote to the Employment Tribunal on 21 October 2019. She said, “After careful consideration and advice provided by the court, I do not wish to continue with my claims of direct and indirect discrimination and of failure to make a reasonable adjustment on the basis of insufficient evidence, or reason to sustain. I still wish to pursue the claims of harassment (related to disability) and constructive unfair dismissal and wrongful dismissal”.[13]Paragraph 14.9 of the grounds of complaint annexed to the claim form refers in addition to a complaint of discrimination arising from disability (pursuant to section 15 of the 2010 Act). As far as the Tribunal can discern, this complaint was not mentioned or considered by the Tribunal or the parties at the hearing held on 8 October 2019 nor is it referred to in the claimant’s letter of 21 October 2019.[14]The case was listed by Employment Judge Rostant for a hearing to take place upon 4, 5, 6 and 7 May 2020. A notice of hearing to this effect was sent to the parties on 10 October 2019. On 29 October 2019 the claimant’s complaints of direct and indirect discrimination and failure to meet the duty to make reasonable adjustments were dismissed following the claimant’s withdrawal (in her letter of 21 October 2019). A Judgment to this effect was made by Employment Judge Cox on 29 October 2019 and promulgated on 30 October 2019.[15]On 25 November 2019, the respondent filed a position statement upon the question of disability. This followed upon the claimant serving an impact statement and supporting medical evidence. The respondent conceded the claimant to have a physical impairment by reason of arthralgia and hypermobility of her knee joints. However, the respondent did not concede the claimant to be a disabled person for the purposes of section 6 of the 2010 Act. The respondent was unable to concede at that point that that condition had a substantial adverse effect upon her ability to carry out normal day to day activities at the material time.[16]Due to the Covid-19 pandemic, the hearing which had been listed for May 2020 was postponed. In accordance with the practice at the time, the scheduled first day of the hearing was converted to a case management hearing. This came before Employment Judge Shepherd. He gave directions primarily aimed at the case management of the disability issue. He also directed there to be an exchange of witness statements for the purposes of the final hearing. The case was then listed for hearing upon 12, 13, 14 and 15 October 2020.[17]On 23 June 2020, the respondent provided an updated position statement upon the question of disability. The respondent conceded the claimant to be a disabled person for the purposes of section 6 of the 2010 Act (because of her physical impairment of hypermobility or hyperflexion). The respondent put in issue whether it had knowledge of her disability at the material time.[18]On 28 September 2020 the Employment Tribunal received a letter from the respondent. This notified the Employment Tribunal that a proposal for a CVA had been sent to the respondent’s creditors on 26 August 2020 and had been approved by the creditors and members of the respondent on 15 September 2020. Like may businesses, the respondent had suffered enormously as a result of the COVID-19 pandemic.[19]The letter of 28 September 2020 said: “With effect from the approval of the proposal [for the CVA] on 15 September 2020, all unsecured creditors of NLRL [the respondent] are bound by the terms of the proposal, whether or not they receive notice of the meeting and whether or not they voted in favour of it. The claimant is an unsecured creditor of the company and the proposal accordingly sets out the ways in which the claimant’s claims against NLRL are compromised by the proposal, the rights that the claimant and the company have in respect of such claims. Pursuant to the proposal, the claimant waives and releases NLRL from any breaches or defaults (potential or actual) of term of any contract relating to the claimant’s claim, which includes a contract of employment, resulting from nonpayment of any amounts due or from the existence of and/compromises in the CVA, and is not entitled to enforce any rights as a result of legal process or otherwise. The claimant is not entitled therefore to commence or continue any procedural action, statutory action or self-remedy action, including by way of legal proceeding, execution or judgment or other action as a result of such breach or default and is required to discontinue any such action or other action that is ongoing. Further, the claimant is obliged to consent to any application by NLRL and/or any members of NLRL’s group for relief against such process or action”.[20]On 5 October 2020 Employment Judge Lancaster directed that the hearing listed for 12 to 15 October 2020 shall remain listed and that the suggestion that the claimant was disqualified from pursuing the case was misconceived. He noted that the claimant does not require consent to continue a claim against a company in a CVA. This position may be contrasted with the moratorium on legal proceedings which applies in the case of companies who enter administration pursuant to schedule B1 of the 1986 Act. The moratorium on legal proceedings is to be found in section 43 of schedule B1. The effect of section 43 is that no steps may be taken (whether by instituting proceedings or continuing them) against the company in administration without the consent of the administrator or with the permission of the court.[21]On 29 September 2020 the claimant emailed the Tribunal. She said that she had received no prior notification about the proposal for the CVA or indeed the CVA itself until receipt of the respondent’s letter of 28 September 2020. This is accepted by the respondent. In a letter addressed to the claimant dated 22 February 2021 the respondent said that “the respondent believes you were first informed of the CVA by a letter from Deloitte dated 16 October 2020.” (This appears to be factually incorrect as the claimant knew of the CVA in late September 2020. However, the fact remains that she did not know of the CVA until after it had been voted upon affirmatively on 15 September 2020). In the letter of 22 February 2021, the respondent maintained its position that the terms of the CVA meant that the claimant was not entitled to pursue her claim but would agree to the hearing going ahead.[22]On 12 October 2020, the matter came before a full Employment Tribunal panel chaired by Employment Judge Little. He ordered the hearing of the case to be postponed to 1 to 5 March 2021 inclusive. This was principally due to the unavailability of one of the respondent’s key witnesses.[23]As with the preliminary hearing which came before Employment Judge Shepherd, no mention or reference was made to the claimant’s section 15 complaint in Employment Judge Little’s record of the hearing held on 12 October 2020.[24]At the commencement of that hearing, Miss Owusu-Agyei presented an opening note on behalf of the respondent. It was the respondent’s position that the terms of the CVA are such that from 15 September 2020 the claimant has waived her claims against the respondent. Nonetheless, the respondent intended to defend the claim during the liability hearing before the Tribunal without prejudice to their position upon the effect of the CVA. She attached to the note extracts from the CVA. This was very helpful.[25]The CVA runs to some 303 pages. It is a document of considerable complexity which is a challenge even for skilled lawyers to fully comprehend. For an unrepresented claimant, attempting to read and understand the CVA promises only much heft but little enlightenment. Albeit that some of the salient clauses were not included in her extract, the Tribunal has benefited from Miss Owusu-Agyei’s attempts to condense and simplify matters.[26]When the matter came before the Employment Tribunal on 1 March 2021, Miss Owusu-Agyei again presented an opening note. This referred to the claimant’s complaints as being confined to constructive unfair dismissal under the 1996 Act and harassment related to disability under the 2010 Act. No reference was made, again, to the section 15 claim nor the claimant’s complaint of constructive wrongful dismissal.[27]The Tribunal was concerned as to whether there was jurisdiction for it to consider the claimant’s claims in light of the terms of the CVA. Notwithstanding that each party was prepared to go ahead with the hearing, the Tribunal’s view was that a jurisdictional issue had arisen. The Tribunal therefore needed to be satisfied that there was indeed jurisdiction for the Tribunal to consider the case. Accordingly, Orders were made for the parties to make written submissions upon the jurisdiction point.[28]In the course of the parties’ written submissions following the Order of 1 March 2021 the Tribunal’s attention was drawn to two Employment Tribunal Judgments which have considered this matter. As a point of principle, these Judgments are not persuasive let alone binding upon this Tribunal. Nonetheless, the Tribunal has found them helpful.[29]The first of the cases chronologically is a Judgment of Employment Judge Allen sitting in the Watford Employment Tribunal (Kim Burrows v New Look Retailers Ltd: case number 3321958/19). The judgment was promulgated on 31 March 2021. The respondent was represented by Mr Kirk of counsel. Employment Judge Allen held that the CVA does not inhibit the Employment Tribunal from dealing with the merits of the claim.[30]Employment Judge Allen set out a chronology of events. This records that on 26 August 2020 the respondent’s creditors were notified of the meeting to approve the CVA. The creditors meeting approved the CVA on 15 September 2020. High Court approval was obtained on 21 September 2020. Miss Burrows in fact first heard of the CVA on 25 September 2020, around several weeks before the claimant did. Like the claimant, Miss Burrows received a letter dated 16 October 2020 notifying her of the CVA.[31]The second case came before Employment Judge Dunlop sitting in Manchester (Ms H Parry v New Look Retailers Ltd: case number 2409303/20). Miss OwusuAgyei appeared for the respondent. Employment Judge Dunlop rejected the respondent’s application for Ms Parry’s claims of unfair dismissal and discrimination to be dismissed or alternatively for them to be struck out.[32]The Tribunal notes that Employment Judge Dunlop mentioned of a challenge to the validity of the CVA which came before the High Court earlier this year. The High Court’s judgment in the matter was handed down on 10 May 2021. The challenge to the CVA was brought by some of the respondent’s landlords. In the event, the challenge was unsuccessful (Lazari Properties 2 Limited and Others v New Look Retailers Limited and Others [2021] EWHC 1209 (Ch) Zacaroli J). It is perhaps a little surprising that the first that this Employment Tribunal knew of this matter was upon reading it in Employment Judge Dunlop’s judgment. Be that as it may, the challenge was unsuccessful in any case.[33]After setting out the salient parts of the CVA in some detail, Employment Judge Dunlop concluded that the Employment Tribunal’s jurisdiction to consider Miss Parry’s claims (brought under the 1996 Act and the 2010 Act) had not been ousted by the CVA.[34]The Tribunal now turns to the terms of the CVA. As has been said, this is a complex legal document which is some 300 pages in length. As observed by Employment Judge Dunlop, it is “an extremely dense and complex legal document. Its predominant focus is on the relationship between the respondent and its landlords and, in particular, on substantially reducing the rent obligations on many, if not all, of its store properties”. The prescience of Employment Judge Dunlop’s observation is perhaps borne out by the fact that the unsuccessful challenge to the CVA was spearheaded by some of the respondent’s landlords.[35]The CVA applies to those who are a ‘CVA Creditor.’ This term is defined in the lengthy ‘Definitions and Interpretation’ section in schedule 1 to the CVA. There are twelve categories of CVA Creditor. A ‘Category L CVA Creditor’ means ‘any Former Employee to whom New Look owes a Liability, including those Former Employees listed in Part 4 of schedule 19 (List of CVA Creditors).’[36]A ‘Former Employee’ is defined to mean ‘any person who has previously been employed by New Look but is not an Employee at the CVA Creditors’ Meeting Date.’ The CVA Creditors Meeting Date means the date on which the CVA Creditors Meeting was held (that being 15 September 2020). The claimant’s employment with the respondent had terminated by that date. It follows therefore that she comes within the category of ‘Former Employee’ and is therefore a ‘Category L CVA Creditor.’ The claimant is not listed in Part 4 of schedule 19. This would appear to follow because she was not sent notice of the CVA meeting. However, that she does not feature in the Part 4 list does not preclude her from being a Category L CVA Creditor as the definition of that term is only said to be inclusive of those in Part 4 which is thus not an exclusive list.[37]It follows therefore that the claimant is a Former Employee and comes within Category L as she is one to whom the respondent owes or may owe a liability.[38]We must therefore turn to the definition of liability within the CVA. This is very widely defined. The CVA provides that it means “any obligation of a person, whether it is present, future or contingent, whether or not its amount is fixed or liquidated, whether or not it is disputed, whether or not it involves the payment of money, whether it is secured or unsecured and whether it arises at common law, in equity, by contract, or by statute in England or in any other jurisdiction, or by any order, judgment, decree or any other act of any court (including without limitation to the foregoing generality, the Court) or in any other manner whatsoever, and ‘Liabilities’ shall be construed accordingly.”[39]The definitions section then defines the term ‘Compromised CVA Creditor’ to include the category L CVA Creditors. A ‘Compromised CVA Creditor Claim” means the claims of a Compromised CVA Creditor. A ‘Compromised CVA Creditor Contract’ means any contract that relates to the Compromised CVA Creditor Claim as set out in the proposal. A ‘Compromised Former Employee Liability’ is “any and all Liabilities owed by New Look to a Former Employee other than the Redundancy Payments.”[40]Clause 4 of the proposal provides as follows: “4. Waiver and Moratorium4.1 Waiver With effect from the Effective Date:(a) each Compromised CVA Creditor and each Category A Landlord waives and releases New Look from any breaches or potential or actual defaults of any terms of a Lease, Agreement for Lease or Compromised CVA Creditor Contract that may have arisen and are continuing as at the Effective Date or that may arise thereafter in either case as a result of: (i) New Look not paying any amount due under any Lease, Agreement for Lease or Compromised CVA Creditor Contract before the Effective Date; or (ii) a CVA Related Event or the compromises under, or any other provision of, the Proposal; and(b) subject to Clause4.2 (Landlord proprietary rights) below, no Compromised CVA Creditor or Category A Landlord shall be entitled as a result of any of the events referred to in Clause 4.1(a) (Waiver) above, by way of a Legal Process or otherwise: (i)-(ii)… (iii) to enforce any other contractual or other right that they may have in their capacity as Landlords or Compromised CVA Creditors in respect of Leases, Agreements for Lease or Compromised CVA Creditor Contracts (as the case may be); (iv)-(vi)… and any Compromised CVA Creditor or Category A Landlord that has commenced or completed any Legal Process or other action which falls within Clause 4.1(b)(i)-(vi) (Waiver) above, agrees and acknowledges that it will discontinue such Legal Process or other action, and (if applicable) consent to any application by New Look and/or any Group Company for relief against any such process of action.”[41]I now turn again to the Definitions and Interpretation section of the CVA to ascertain the meaning of the term ‘Legal Process’ within clause 4. This means ‘any procedural action, statutory action or self-remedy action (whether by way of demand, legal proceedings, alternative determination process (including an expert determination process), the levying of distress, execution of judgment, any petition for the winding up or liquidation of New Look, or otherwise) or commercial rent arrears recovery.’[42]Although Clause 4 of the CVA is headed ‘Waiver and Moratorium’ nothing is said about a moratorium upon proceedings (as opposed to a waiver of them) within any of the sub-clauses of Clause 4.[43]Clause 5 concerns the effect of a CVA on Ordinary Unsecured Creditors. This term is defined to mean each creditor to whom New Look owes an Ordinary Unsecured Liability. This is inapplicable to the claimant because the term Ordinary Unsecured Liability means any liability of New Look to a creditor other than any Liability owed to that creditor as (amongst other things) a Compromised CVA Creditor. (By way of reminder, the claimant falls into the category of Compromised CVA Creditor by virtue of her status as a category L CVA Creditor which in turn means any Former Employee of New Look to whom New Look owes a Liability (including a contingent liability). In short, therefore, the terms of Clause 5 may be disregarded.[44]Clause 6 is headed, ‘The Effect of the CVA on Employees.’ Again, this appears to be inapplicable in the claimant’s case because clause 6 provides that “The CVA shall not affect the rights of any Employee …” The term “Employee” means those in employment at the CVA Creditors’ Meeting Date and thus is distinct from that of ‘Former Employee.’[45]For the impact of the CVA upon Former Employees such as the claimant we need to turn to Clause 22 which deals with the effects of the CVA upon category L CVA Creditors (who are, by definition, Former Employees).[46]We can pass over the Clause 22.1 which deals with redundancy payments. Such is not relevant to this case.[47]The remainder of Clause 22 provides as follows: “The Effect of the CVA on Category L CVA Creditors – Former Employees22.1 Redundancy Payments ...22.2 Compromise of Compromised Former Employee Liabilities To the extent that a Category L CVA Creditor’s CVA Claim in respect of Compromised Former Employee Liabilities becomes an Allowed CVA Claim in accordance with Clause 30 (Notice and Acceptance of Claim), the CVA will release and compromise the claim for Compromised Former Employee Liabilities held by such Category L CVA Creditor to 2% of the amounts assessed by the Supervisor as outstanding at the Effective Date.22.3 Payment The amount calculated in accordance with Clause 22.2 (Compromise of Compromised Former Employee Liabilities) shall be paid to Category L CVA Creditors by New Look following the Interim CCF Claim Date, provided that no payment shall be made if a Challenge Application has been made to the Court in respect of the CVA on or before the end of the Challenge Period, unless such Challenge Application has been withdrawn, settled or decided judicially in favour of New Look.22.4 Full release and discharge From the Effective Date, each Category L CVA Creditor irrevocably and unconditionally, fully, finally and absolutely releases and discharges New Look from any Compromised Former Employee Liability and from any further actions, proceedings, costs, claims, demands and expenses with respect to any Contingent Liabilities, and accepts such amount to be paid under Clause 22.3 (Payment) in full and final settlement of such Compromised Former Employee Liabilities.”[48]Clause 27 of the proposal reads (in so far as material) as follows: “Full and Final Settlement and Bar Date 27.1 Full and Final Settlement(a) … the provisions of the CVA shall constitute a compromise of all Compromised CVA Creditor Claims which have been modified under the terms of this Proposal. Accordingly, the payments made pursuant to the CVA… to any Compromised CVA Creditor shall be in full and final settlement of any such claims.(b) Without prejudice to the generality of Clause 27.1(a) (Full and Final Settlement) above, New Look’s obligation to make the payments referred to in… Clause 22 (The Effect of the CVA on Category L CVA Creditors – Former Employees)… save as expressly stated in those Clauses, will be accepted in full and final satisfaction of any Liability to a Compromised CVA Creditor.(c) …(d) …(e) For the avoidance of doubt, Clause 4 (Waiver and Moratorium) provides that Category A Landlords and Compromised CVA Creditors may enforce their rights under the CVA, including under the Leases as modified and varied by the CVA and/or for any non-payment of any amount when due under the CVA.”[49]Clause 30 provides that in order to benefit from payments under the CVA, the creditor must submit a notice of claim to the CVA supervisors before the bar date of 31 December 2023. An ‘Allowed CVA Claim’ means, in relation to a CVA Claim [that being any claim against New Look in respect of a CVA Liability], the CVA Claim or that part of a CVA Claim that is admitted by the Supervisors or has been determined in a final and binding manner in accordance with clause 30 (notice and acceptance of claim).[50]Clause 30.3 concerns the process for allowance of Allowed CVA Claims. The allowed CVA claim of a Compromised CVA Creditor (such as the claimant) shall be determined by the supervisors based upon a review as set out in Clause 30.7. This provides that a notice of claim may be admitted by the supervisors either for the whole of the amount claimed by the Compromised CVA Creditor or for part of that amount and that the supervisors may reject a CVA claim in whole or in part for any reason. If they do reject a claim, they shall prepare a written statement of reasons for doing so.[51]A procedure is set out for the resolution of a disputed claim. Clause 31 provides that a Compromised CVA Creditor shall deliver a disputed claim notice within 21 days of the Compromised CVA Creditor receiving confirmation from the supervisors that their CVA Claim has been allowed for a lower amount than claimed or rejected. Clause 33 then provides a dispute resolution procedure. This says that the matter shall be adjudicated by a chartered accountant jointly nominated by the supervisor and the relevant Compromised CVA Creditor or in default of any agreed nomination within seven days, to the President for the time being of the Institute of Chartered Accountants in England and Wales. The adjudicator is known as the ‘Dispute Accountant.’ The agreement provides that the Dispute Accountant shall be a chartered accountant having not less than 10 years’ experience of similar disputes contemplated by the clause. The fees and costs of the Dispute Accountant are to be shared between the parties equally.[52]The Tribunal will now endeavour to pull together all of these threads. The effect of Clause 4(1)(a) is that the claimant waives and releases the respondent from any breaches or potential or actual defaults of any terms of her contract of employment. This is because the contract of employment comes within the definition of a “Comprised CVA Creditor Contract’ and a Compromised CVA Creditor includes category L CVA Creditors being Former Employees of New Look. The definition of “Comprised CVA Creditor Contract” means any contract that relates to the Compromised CVA Creditor Claim. This does not appear to be wide enough, therefore, to catch the statutory claims of unfair dismissal and harassment related to disability.[53]In the Tribunal’s judgment, it is wide enough to encompass complaints of wrongful dismissal. The claimant resigned her position summarily. She claims to be entitled to the payment of notice because she was wrongfully constructively dismissed by the respondent. A wrongful dismissal claim is essentially one made by an employee complaining of a fundamental breach of contract by the employer and that the employer has failed to pay remuneration for the notice period. Such a claim falls four-square within the scope of Clause 4.1(a) as a breach of the Compromised CVA Creditor’s [viz. the claimant’s] Contract [of employment].[54]Clause 4.1(b) provides, as we have seen, that no Compromised CVA Creditor such as the claimant shall be entitled as a result of the events referred to in Clause 4.1(a) to proceed to enforce any contractual or other rights which they may have in their capacity as Compromised CVA Creditors. In and of themselves, the words of Clause 4.1(b)(iii) would wide enough to encompass the statutory claims under the 1996 Act or the 2010 Act, this being ‘other rights.’. However, importantly Clause 4.1(b)(iii) refers to contractual or other rights vested in the Compromised CVA Creditor which arise as a result of the events referred to in Clause 4.1(a). Therefore, Clause 4.1(b) is expressly made subject to Clause 4.1(a). Unfair dismissal and harassment related to a protected characteristic (such as disability) are statutory rights. They are not contractual rights. True it is that in all complaints of unfair dismissal and in the majority of complaints brought under the 2010 Act of discrimination or harassment in the workplace there will be a contract of employment in existence. However, when suing for unfair dismissal or a breach of the Equality Act 2010, the claim is not contractual but statutory. The claims therefore do not arise from a breach or potential breach of a contract that relates to a Compromised CVA Creditor. They arise because the employer has committed acts constituting conduct that is prohibited under the 2010 Act or unfairness in dismissing an employee under the 1996 Act. It follows in my judgment, therefore, that there is no obligation pursuant to Clause 4.1(b) to discontinue the legal proceedings instituted by the claimant in the Employment Tribunal prior to the CVA upon the basis of Clause 4. The harassment and unfair dismissal claims do not arise from a breach of contract. True it is that but for there being a contract of employment between the parties the statutory claims would not have arisen but in my judgment that is insufficient to bring them within the orbit of Clause 4.[55]In my judgment, therefore, Clause 4 does not assist the respondent. It is to Clause 22 that we must now turn.[56]In essence, as the Tribunal understands matters, an employee such as the claimant must demonstrate, in order to participate in the distribution under the CVA, that they have an Allowed CVA Claim which is one that is admitted by the supervisor of the CVA or determined in the creditor’s favour pursuant to the dispute resolution scheme provided for by the CVA. Such a claim may arise in respect of any ‘Liability’ as defined in the CVA. We have already seen that the definition of liability in the CVA is very wide. It expressly covers a present, future or contingent liability arising out of a cause of action arising by statute. On the face of it, therefore, this is wide enough to embrace unfair dismissal and Equality Act claims.[57]A Former Employee such as the claimant is therefore required, under the CVA, to make a claim prior to the bar date of 31 December 2023 by submitting a notice of claim. If this is accepted by the supervisor of the CVA, then the claimant will be entitled to a distribution capped at 2% of the admitted claim. Where the supervisor does not to accept the notice of claim, then the claimant must avail herself of the dispute resolution procedure for disputed claims. The costs of the adjudicating chartered accountant must be split equally between the claimant and the respondent in the case of a disputed claim.[58]It may be anticipated, in this case, that the claimant’s claim will not be categorised by the supervisor as an Allowed CVA Claim. The Tribunal must proceed upon this basis given that the respondent is advancing a defence to the claim and has appeared before the Tribunal to defend it. It will therefore be a disputed claim. Given that the claimant will be paid at 2% of the value of the claim (if determined in her favour by the adjudicator) and must pay 50% of the adjudicator’s fees, it is unlikely to be economically viable or sensible for her to pursue it through the CVA dispute resolution mechanism. If she is bound to pursue vindication of her rights (by the obtaining of a merits judgment in her favour) and must do so through the mechanism provided by the CVA then effective pursuit of her claims will be rendered excessively difficult and expensive.[59]The Tribunal was not taken to any provision obliging a creditor contractually to discontinue a claim other than as provided for in Clause 4. (The Tribunal has held that Clause 4 does not apply to the complaints which the claimant pursues other than the complaint of wrongful constructive dismissal).[60]If the respondent is correct in its interpretation of the provisions between Clauses 22 and 33 of the CVA, then the impact upon the claimant (and other employees in her position) is indeed profound. It will have the effect of ousting the statutory rights vested in the employees pursuant to the 1996 Act and the 2010 Act.[61]The claimant argued in her submissions that she should not be bound by the CVA for lack of notice. Unfortunately for the claimant, the position is that creditors are bound by the CVA whether or not they have notice of the proposal. Section 5(2) of the 1996 Act provides as follows: “The … voluntary arrangement –(a) takes effect as if made by the company at the time the creditors decided to approve the voluntary arrangement, and(b) binds every person who in accordance with the rules – (1) was entitled to vote in the qualifying decision procedure by which the creditors decision to approve the voluntary arrangement was made or (2) would have been so entitled if he had notice of it, as if he were a party to the voluntary arrangement”.[62]Section 5(2)(b) was inserted by the Insolvency Act 2000. Whereas formerly it had been held that a creditor must have actual notice so as to be bound by the arrangement, the provision in the 2000 Act does away with the requirement for actual notice. Instead, section 5(2)(b) binds two classes of person as party to the voluntary arrangement on the assumption that any such person would have been entitled to participate in the creditor’s decision-making process upon the CVA proposal.[63]The two classes of persons bound by section 5(2)(b) are:(1) Every person entitled to vote in a creditor’s decision process (ie who had notice of the decision process, irrespective of whether or not they participated) or(2) Any person who would have been entitled to have had such notice (irrespective of whether such notice was received or otherwise communicated).[64]The Tribunal has considered the work ‘Annotated Insolvency Legislation’ by Doyle, Keary and Curl. This work says that class (2) cited in paragraph 62 above “will catch both creditors who are not known to the nominee initiating the creditor’s decision process and also creditors who are known but to whom notice is not given through, say, an administrative oversight or even a deliberate omission.”[65]Harsh as it may seem to the claimant, therefore, the position is that she is bound by the CVA notwithstanding that (even on the respondent’s case) she was not served with notice of it. That is the clear effect of section 5(2)(b) of the 1986 Act.[66]The Tribunal pauses here to observe that, with respect, the Watford Employment Tribunal in the Burrows case appears to have been incorrect to cite sections 257(2B) and 260(2)(b) as authority for the proposition that the CVA is binding on all creditors whether or not notice was given. Those provisions apply in the case of individual voluntary arrangements which has no applicability to this case.[67]The respondent drew the Tribunal’s attention to the case of Britannia Heat Transfer Limited (in Administration and in Company Voluntary Arrangement) (2007) BCC 470. The Tribunal accepts Miss Owusu-Agyei’s submission that this is an authority binding upon the Employment Tribunal. The High Court is, like the Employment Tribunal, a court of first instance. However, the Tribunal considers there to be much force in her point that the Employment Appeal Tribunal (which hears appeals from Employment Tribunals) is a division of the High Court. Decisions of the EAT are binding upon the Employment Tribunal. As a matter of logic, therefore, it appears to follow that decisions of another branch of the High Court must also be binding. The Tribunal shall therefore proceed upon this basis.[68]Britannia Heat Transfer Limited entered administration on 14 November 2002. One of the purposes of the administration was the approval of a Company Voluntary Arrangement under Part 1 of the 1996 Act. The administrators sold the three trading divisions of Britannia and were then able to propose a CVA providing for a moratorium on legal proceedings and the payment of 100 pence in the pound to preferential creditors and a smaller dividend to unsecured creditors. The CVA creditors included various employees of Britannia and the Redundancy Payments Directorate. (The Redundancy Payments Directorate was involved because payments out had been made to Britannia’s employees from the National Insurance Fund and those employees’ rights were subrogated to the Directorate who pursued them against the company effectively seeking recovery of monies paid to the employees for the benefit of the National Insurance Fund).[69]One of the joint administrators of Britannia who was the supervisor of the CVA sought a declaration from the High Court upon the question of whether the employees‘ statutory rights could be compromised by way of a CVA.[70]The employees’ claims in Britannia all arose under the 1996 Act. There were complaints of: unlawful deductions from wages; the right to a minimum period of notice; the right not to be unfairly dismissed; and the right to a redundancy payment. The employees’ claims in Britannia did not include any arising under the 2010 Act.[71]The concern which arose was whether the statutory rights in the 1996 Act may be compromised pursuant to an arrangement not made in compliance with section 203 of the 1996 Act.[72]Section 203 of the 1996 Act (and equivalent provisions in other statutes including the 2010 Act in section 144) provide that individuals cannot contract out of their statutory employment rights. However, settlement agreements which have this effect are permissible. To be legally binding, settlement agreements must comply with certain formalities as set out in section 203(3) of the 1996 Act and section 147 of the 2010 Act. There was no dispute in Britannia that the CVA did not comply with the provisions of section 203(3) of the 1996 Act. Indeed, HHJ Norris QC who handed down the judgment in Britannia held that in practical terms “it is very difficult to see how the possibility of making a [settlement] agreement validated under section 203(3) could in practice ever be realised. The provisions of section 203(3) are simply not adapted to the procedure for promoting a CVA.”[73]He held that a CVA is not an agreement for the purposes of section 203 of the 1996 Act. Therefore, the statutory requirements and formalities of section 203 did not apply and none of the provisions of the CVA were to be modified or avoided upon that account. The CVA approved in Britannia (on 17 October 2005) was therefore held to be binding upon all parties notwithstanding the provisions of section 203 of the 1996 Act.[74]HHJ Norris held that the CVA effectively bound all non-statutory employment claims. Those complaints (such as a complaint of wrongful dismissal) do not fall within the ambit of section 203 of the 1996 Act (or indeed of section 144 of the 2010 Act). Common law claims such as for wrongful dismissal may be compromised in any way (provided that there is legal certainly) including by way of a CVA. Clause 4 therefore has the effect of ousting the wrongful dismissal claim from the Tribunal’s jurisdiction.[75]As Britannia is binding upon the Tribunal, it follows that the CVA is not avoided in its application to her unfair dismissal claim by reason of a failure to comply with the formalities in section 203(3) of the 1996 Act. That the claimant had no notice of the creditor’s meeting until afterwards and the safeguards in section 203(3) were not followed is of no assistance to her. Upon the unfair dismissal complaint, therefore, she is bound by the terms of the CVA. The pursuit of the unfair dismissal claim is confined and restricted by the terms of the CVA. However, in my judgment, this does not mean that the Tribunal cannot hear her complaint. What it does mean is that the satisfaction of a successful complaint is constrained by the operation of the CVA as I shall now explain.[76]What this means in practical terms is that the claimant must present to the supervisor a notice of claim. Without the benefit of an Employment Tribunal Judgment in her favour it may be anticipated that the claim will be rejected forcing the claimant to utilise the dispute resolution mechanism provided for by the CVA.[77]Britannia Heat Transfers Limited is not authority for the proposition that the Tribunal’s jurisdiction is ousted by the existence of a CVA. It is authority for the proposition that the CVA is not invalidated for want of compliance with the formalities in section 203(3).[78]Unlike the statutory administration process provided for in schedule B1 of the 1996 Act, a CVA does not impose a statutory moratorium upon proceedings. It can be taken therefore that a Parliament decided to distinguish the position between CVAs on the one hand and administrations upon the other and the impact upon those statutory processes upon legal proceedings (actual or contingent). If a CVA resulted in a statutory moratorium, one would have expected Parliament to have expressly provided for such.[79]Further, the CVA itself nowhere provides for a moratorium. The nearest that one gets within the CVA is the reference in Clause 4 to a moratorium (albeit that the terms of Clause 4 appear not to provide for such in any case). While Clause 4 provides for a contractual obligation for discontinuance of legal proceedings caught by it (for our purposes complaints of breach of contract) no such provision applies (so far as the Tribunal is aware) to Clauses 22 to 33.[80]Therefore, both the statutory scheme provided by the 1986 Act and the terms of the CVA itself appear to contemplate or at any rate do not preclude the bringing of or continuance of legal proceedings. It follows, in the Tribunal’s judgment, that the claimant may therefore pursue her complaint of constructive unfair dismissal.[81]Should the claim fail, then that will be the end of matters. Should the claim succeed, then the claimant may present a notice of claim pursuant to the provisions of the CVA. It would be a surprising step, if presented with an Employment Tribunal Judgment, for the supervisor to reject the claim. After all, the complaint will have been adjudicated upon by a specialist labour court. However, that is for another day. For now, the Tribunal’s determination is that for the reasons given the claimant’s unfair dismissal complaint may proceed.[82]The Tribunal also determines that the claimant’s complaint of harassment related to disability brought under the 2010 Act may proceed. This is for the reasons already given. There are however additional considerations under the 2010 Act.[83]Notwithstanding the UK’s decision to withdraw from the European Union, general principles of EU law are retained pursuant to section 6 of the European Union (Withdrawal) Act 2018. These general principles are the fundamental legal principles that govern how EU institutions operate and the application EU law within member states.[84]Since October 2010, the 2010 Act is the legislative instrument by which the UK implements into domestic law the protections from discrimination guaranteed under EU law. In particular, the EU Equal Treatment Framework Directive (No 2000/78) sets out a general framework for eliminating employment or occupational inequalities based upon disability (amongst other things). The concept of disability discrimination in this context includes harassment (pursuant to Article 2).[85]Member states are entitled to impose conditions or limitations upon the exercise of rights derived from EU law such as time limits or territorial restrictions. However, such restrictions must not render virtually impossible or excessively difficult the exercise of EU-derived rights. Member states must also not place conditions and limitations on the enforcement of EU rights that are less favourable than those governing similar domestic rights.[86]The latter principle of equivalence means that it inexorably follows from the Tribunal’s ruling upon the unfair dismissal complaint that the harassment complaint must also be allowed to proceed. It would breach the principle of equivalence for a similar domestic remedy to be allowed to proceed whereas a complaint derived from EU law is not.[87]In any case, as has been said, the principle of effectiveness is binding upon member states (and continues to bind the UK pursuant to the 2018 Act). In the Tribunal’s judgment, it would be a breach of the principle of effectiveness to permit the use of a statutory procedure such as that in Part 1 of the 1986 Act to effectively abrogate the claimant’s rights to have her harassment complaint adjudicated upon by a specialist Tribunal.[88]A finding to the contrary would be that it is permissible under a domestic statute such as the 1986 Act for a statutory scheme provided by that statute to be utilised by a party (such as the respondent) in a way which effectively negates the ability of employees such as the claimant to have a discrimination or harassment claim heard by a specialist labour court. In the Tribunal’s judgment, there would have to be a very clear expression of Parliamentary intent for this result to arise (and even then such would breach the principle of effectiveness in any case and, as the law currently stands, would require the court or tribunal to interpret such domestic legislation in accordance with EU law and with a view to providing effectiveness of it so far as possible).[89]A finding against the claimant would be to bar the claimant from having her harassment case adjudicated upon by the Employment Tribunal and compel it to be submitted for arbitration or adjudication pursuant to the dispute resolution mechanism provided for by the CVA. With respect to those nominated to conduct the adjudication pursuant to Clause 33 of the CVA, it is difficult to see how such can provide an effective remedy. It is difficult to see how the claimant’s harassment complaint could be decided upon (where the core facts are in dispute) other than by proceedings before a specialist Tribunal familiar with and well versed in equality law. In addition, there is no fee payable by the claimant to bring her case before the Employment Tribunal. A significant cost will be incurred by her in pursuit of the matter before the adjudicator appointed under the CVA. The provision in the CVA providing for the sharing of the costs of adjudication offends against the principle prohibiting member states from placing conditions upon the enforcement of EUderived rights such as to make such enforcement excessively difficult. The provision of a statutory scheme such as that in the 1986 Act whereby a CVA can be drawn which binds employees who have had no notice of it and creates a structure for dispute resolution which to all intents and purposes negates EU-derived rights offends against the principle of effectiveness.[90]For these reasons, the Tribunal holds that the Employment Tribunal does have jurisdiction to consider the claimant’s complaints brought under the 1996 Act and 2010 Act. Should the claimant succeed with the complaints, then the CVA may be an effective bar to enforcement of any judgment in the claimant’s favour and may then compel her to utilise the dispute resolution mechanism within the CVA. Indeed, in the Tribunal’s judgment, this is the correct interpretation. In the Tribunal’s judgment, the CVA does not oust the Tribunal’s jurisdiction. The Tribunal can determine the claims. What has effectively happened is that the claimant has compromised her contingent claims under the 1996 Act and 2010 Act. However, the contingency may be determined by the Employment Tribunal. Then, if successful, she is bound by the CVA to be paid out only at the rate of 2% of the value of the claims as determined ultimately by the Tribunal.[91]This is the effect of the CVA. It is difficult to see any basis upon which the Tribunal’s jurisdiction can be ousted other than as provided for by the 1996 Act and 2010 Act themselves in sections 203 and 144 respectively. Indeed, this was the conclusion reached in Britannia. Upon vindication of her contingent claims the claimant is then bound by the straight jacket of the CVA. In my judgment, this is how the CVA and the statutory rights mesh together. The position with the common law wrongful dismissal claim may be distinguished as such a claim may be compromised other than by following the formalities such as those in the 1996 and 2010 Act, there is no EU-law general principle in play and the CVA clearly catches such a claim by the wording of Clause 4. Had the Clause 4 or the CVA generally ben couched in wider terms purporting to waive the statutory claims and requiring discontinuance of them, then my conclusions would have been the same. The statutory rights cannot be ousted other than by compliance with sections 203 and 144, there is no moratorium imposed by a CVA and thus there is no exclusion of the Employment Tribunal’s jurisdiction.[92]The Tribunal now turns to the claimant’s complaint brought under section 15 of the 2010 Act. Upon this issue, I agree with the submissions of Miss Owusu-Agyei that the claim should be struck out as having not been actively pursued.[93]It is the case that the claimant made mention of a complaint of unfavourable treatment for something arising in consequence of disability in the grounds of claim attached to her claim form. However, the matter then appears to have not been referred to or mentioned again until the issue was raised by me at the hearing on 1 March 2021. The claimant had ample opportunities to refer to the matter as the matter proceeded prior to March 2021. There was no reference to it in the hearings before Employment Judges Rostant, Shepherd or Little. The Tribunal agrees with the respondent’s submissions that the claimant’s focus has understandably been entirely upon the harassment and unfair dismissal complaints.[94]Pursuant to Rule 37(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 a claim may be struck out upon the basis that it has not been actively pursued. Pursuant to Rule 37(2) a claim may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. The claimant was given an opportunity to make written representations pursuant to the Orders made at the hearing on 1 March 2021. Notwithstanding what she says, the Tribunal is satisfied that the section 15 claim has simply not be advanced at all. Indeed, the Tribunal would go so far as to say that had I not raised the matter on 1 March 2021, the matter may not have surfaced again.[95]If it is any consolation to the claimant, were she to fail with the complaint of harassment related to disability she would also in all likelihood fail with the section 15 claim in any case. The claimant will appreciate that awards of compensation are not inflated simply by the number of heads of complaint upon which a party succeeds. In reality, as identified by Employment Judge Rostant, the complaint of harassment covers the nature of the matter upon which the claimant wishes to have the Employment Tribunal’s adjudication. It follows therefore that the section 15 complaint is struck out as having not been actively pursued.[96]My ruling upon this issue renders otiose the question of whether the section 15 claim should be struck out as having no reasonable prospect of success. The unfair dismissal and harassment complaints are not amenable to summary disposition. There are disputed facts which need to be adjudicated upon in order to decide these complaints. They shall not be struck out at this stage.[97]In conclusion, therefore, the complaints of harassment related to disability and unfair dismissal shall proceed to an adjudication by the Employment Tribunal. I am satisfied that Clause 4 has the effect of waiving the wrongful dismissal complaint.
Findings of fact
[98]The claimant complains about the way in which the respondent handled the mediation which was held on 14 January 2019. The claimant complains firstly that the meeting was delayed by 45 minutes. There is no dispute that Mrs Sherburn was late in arriving at the meeting. Mrs Sherburn says that this was due to a need to get cover for her store and due to bad traffic.[99]Mrs Richardson’s account is that she took the opportunity presented by Mrs Sherburn’s late arrival to talk to the claimant that day (14 January 2019) about her grievance outcome. Mrs Richardson says (in paragraph 39 of her witness statement0 that, “I told her I had decided not to uphold it and talked her through the reasons. I was conscious this wouldn’t be the outcome she’d hoped 10.5 Reserved judgment with reasons – rule 61 19 March 2017 for and so asked if she felt ok to continue with the mediation. She said that she felt ok to go ahead”.[100]We can see from the notes of the meeting with Kirsty Sherburn of 9 January 2019 that Mrs Richardson told Mrs Sherburn, at the very end of the meeting, that no further action would be taken. Mrs Sherburn therefore effectively knew before the claimant that the claimant’s grievance had been rejected. Although this might strike the claimant as unfair, she was not aware of this until the production of the notes during the course of this hearing. Plainly therefore, it cannot have been a reason for her resignation.[101]Mrs Richardson accepts that there was something of a delay before she was able to hold her meeting with Mrs Sherburn in order “to find out her side of events”. She attributes this to the busy Christmas trading period. The delay in Mrs Richardson speaking to Mrs Sherburn appears not to have contributed to any unreasonable delay with the procedure as a whole, given the context of the claimant initially agreeing to mediation, then appearing reluctant to embark upon mediation, being permitted at the first health and welfare meeting to consider her position and then finally agreeing in the early part of the year to mediation.[102]On 11 January 2019, just three days prior to the mediation meeting, Kirsten Self had written to the claimant (page 227). She directed the claimant to consider the outcomes which she wished to achieve at the mediation session. Kirsten Self told the claimant that a note taker would not be present. This accords with the respondent’s policy that, because mediation is an informal process, there is no need for a note taker to be present.[103]There is therefore much justification in the claimant’s case that she was surprised that the mediation meeting of 14 January 2019 was attended by Melanie Dodsworth who acted as note taker. The claimant was put in a position of finding herself in a meeting with three managers and, contrary to her expectations, discovering that one of them was there in the capacity of a note taker.[104]The claimant says that “on multiple occasions” Melanie Dodsworth contributed to the meeting. Ms Dodsworth’s notes in fact make no record of her saying anything. These notes were signed by the claimant as accurate. We therefore reject this aspect of the claimant’s account of the mediation meeting.[105]On 15 January 2019, Gail Richardson sent a report about the mediation meeting to the respondent’s human resources team. This is within the supplemental bundle. Mrs Richardson said that “tensions ran high” from the start of the meeting and the claimant “got very upset and raised her voice towards [Mrs Sherburn]. At this point I adjourned the meeting to allow both parties to reconsider their behaviour”. Mrs Richardson then reports that the claimant made a telephone call from the toilets. This was in fact made to Mrs Elsey. The claimant returned and, according to Mrs Richardson, said that she was “unable to speak now as there are three store managers against me. Everything has been covered up by everyone. I want an apology and everything investigating impartially. I knew I wouldn’t get either, so my mental health has suffered.” Mrs Richardson says the claimant then read a statement which she had prepared in the toilet. This was effectively a statement of mediation expectations including an apology, the provision of a contact for the eventuality that the claimant suffers bullying in the future and discrimination and equality training to be provided for Mrs Sherburn. 10.5 Reserved judgment with reasons – rule 61 20 March 2017[106]Mrs Richardson reports that she then adjourned the meeting to seek advice from human resources. Mrs Richardson describes the course of the mediation meeting during what doubtless was a difficult afternoon for all present in paragraphs 38 to 45 of her witness statement.[107]We do not consider it necessary to go into any great detail about the ebb and flow of that meeting. There is no dispute that there were several adjournments and that the claimant and Mrs Sherburn were not together the whole time as one or the other of them sat out. Further, there is no dispute that the claimant was very upset during the course of the meeting and the immediate aftermath. The claimant said that afterwards she “was so emotional that [she] hysterically cried to be let out of the building as I could not take any more of this distress and intimidation.” She then describes being unfit to drive home immediately and talked to Mrs Elsey for about 40 minutes before making her way home after leaving the store. The Tribunal accepts the claimant’s account which is corroborated by Mrs Elsey.[108]The claimant was concerned that the respondent’s managers were effectively accusing her of lying. The contemporaneous notes make no reference to an accusation levelled at her of lying albeit that (at page 315) Mrs Sherburn asked the claimant for specific examples of the bullying and harassment alleged against her (Mrs Sherburn).[109]From the relevant passages contained in Gail Richardson’s witness statement, we can see that the mediation focused (at least in part) upon the merits or otherwise of the claimant’s grievances. In paragraph 43, she says that, ‘We then went back to talking about the [till and trainers’ incident]” and in paragraph 44 about the issue of the shift patterns. In paragraph 45 she records there being discussion over the flexible working request. This was at odds with the objectives of the mediation outlined to the claimant by Kirsten Self on 11 January 2019. The claimant was not told that the mediation would be concerned with the merits of her compliant. The claimant had been encouraged to think about what she wanted to achieve from the mediation (as a forward-looking process per the respondent’s policy) and in particular: Objectives: what did the claimant wish to achieve from the mediation session? What concerns and reservations did the claimant entertain about achieving the objectives? Why did the claimant wish to achieve those objectives and what benefits would she gain from them? Who else is impacted through the breakdown in the relationship between her and Mrs Sherburn? What steps may be taken to resolve the relationship?[110]In our judgment, therefore, there is much in the claimant’s point (as pleaded in paragraph 10 of her grounds of claim) that there was little attempt at the mediation meeting to resolve issues and move on. These expectations were not met in the mediation where Mrs Richardson’s focus appeared to be upon debating what had happened in the past.[111]Mrs Richardson sent to the claimant a written confirmation that her grievance was not upheld. The grievance outcome letter dated 18 January 2019 is at pages 321 10.5 Reserved judgment with reasons – rule 61 21 March 2017 to 325. In the Tribunal’s judgment, Mrs Richardson considered the claimant’s grievances in a conscientious manner. The Tribunal only departs from Mrs Richardson’s findings upon the question of the till and trainers’ incident. However, the mere fact that Mrs Richardson did not uphold the claimant’s grievance upon this issue (notwithstanding the Tribunal’s findings) is not suggestive of an investigation falling below reasonable management standards. There is, we think, much merit in Miss Owusu-Agyei’s observation (in paragraph 63 of her submissions) that Gail Richardson is neither a professional investigator nor a lawyer. In our judgment, she undertook a reasonable investigation and reached reasonable and tenable conclusions.[112]The grievance outcome letter also recorded the outcome of the mediation which had been held four days earlier. Mrs Richardson recorded the claimant’s concerns that she (Mrs Richardson) was “not impartial enough” to facilitate mediation. She therefore recommended that the mediation be rescheduled and be managed by Hannah Wade, the store manager of the Leeds White Rose store. It is perhaps unfortunate that this suggestion was not made before Mrs Richardson embarked upon the process.[113]The claimant appealed against the grievance outcome (pages 326 to 328). Amongst other points raised by her, the claimant expressed her unhappiness about the presence of Mrs Dodsworth which was contrary to her expectations that there would be no note taker. She also complained about Mrs Richardson effectively eliding her role as fact finder and mediator. At the bottom of page 327 she records that, “Gail [Richardson] outlined the facts that she had found in favour of my manager Kirsty Sherburn and believed I had only suffered due to the breakdown in the employee to manager relationship that mediation would resolve.” She referred to the letter from Kirsten Self to which we referred in paragraph 109 above. The claimant copied and pasted this into her grievance appeal letter. She drew attention to the fact that her expectation was that only three people would be in attendance (the claimant, Mrs Sherburn and Mrs Richardson). The claimant says that in the appeal letter she had (within the letter) “outlined some of my issues with how my grievance has been dealt with in this letter and will take the opportunity to expand on these along with my other issues at the appeal meeting.”[114]Mr Kirby dealt with the claimant’s appeal. The grievance appeal minutes are in the bundle between pages 339 and 361.[115]Mr Kirby methodically went through each of the claimant’s grievances. The meeting touched upon the issue of the mediation process at pages 359 and 360. The claimant complained that a note taker was present when she had been informed to the contrary. She complained that Mrs Dodsworth had involved herself in the meeting. She said that during the course of the meeting Mrs Sherburn had called the claimant a liar and that the conduct of the meeting had not been fair and impartial.[116]Mr Kirby interviewed Mrs Sherburn and Katie Frith as part of his investigation. Again, these notes were produced during the course of the hearing. Surprisingly, Mr Kirby did not interview Gail Richardson about her conduct of the mediation process.[117]Mr Kirby then wrote to the claimant. He rejected the claimant’s appeal. The letter is at pages 363 to 366. It is mistakenly dated 8 February 2019. There is no dispute that the correct date is 8 March 2019. 10.5 Reserved judgment with reasons – rule 61 22 March 2017[118]Mr Kirby found there to be no undue delay with Mrs Richardson processing the grievance. In our judgment, this is a sustainable conclusion for the reasons which we have set out above. In particular, the grievance was taking place against a background of the peak trading season and of allowing the claimant time to consider how she wished to proceed with matters.[119]Mr Kirby acknowledged that the mediation session took place before the claimant had received her formal written outcome and that such was “not best practice”. Upon the question of Mel Dodsworth’s presence at the mediation meeting, Mr Kirby said, “whilst we don’t usually have a note taker at mediation meetings, Gail felt that it would be beneficial to have Mel present to have brief notes so she could focus on the discussions and facilitating the actual meeting.” Mr Kirby endorsed Mrs Richardson’s conclusion that the matter should proceed by way of mediation to be carried out by Hannah Wade. He then went on to say that should the mediation not succeed then there was the possibility of re-deployment to another store.[120]The claimant suggested to Mr Kirby, during his cross-examination, that Mrs Richardson should have had no involvement in the mediation. This was upon the basis of the procedure which we have cited above in paragraphs 90 to 94. Mr Kirby defended his position upon the basis that he had sought advice from Employee Relations.[121]Mr Lewis asked Mr Kirby upon what basis mediation may be introduced in the middle of a grievance process. Mr Kirby replied that an outcome of a grievance may be a recommendation for mediation.[122]Mr Kirby’s position appears to be a misreading of the respondent’s procedure. Where the matter is (as here) dealt with under the formal process, a mediation may only take place where the manager finds evidence to support some or all of the employee’s concerns. In this case, Mrs Richardson (and then Mr Kirby) had not found in favour of the claimant upon any of the issues raised by her.[123]Indeed, there was a further breach by the respondent of their own policy as Mrs Richardson recommended mediation before she had reached her conclusions upon the claimant’s complaint. This plainly was the case because she recommended it at the first meeting with the claimant held upon 28 November 2018. The matter was explored again at the two subsequent health and well being meetings. These three meetings took place before Mrs Richardson had met with Kirsty Sherburn to get her side of the story. It follows therefore that Mrs Richardson could not have reached a conclusion upon the claimant’s complaints when she made the recommendation of mediation.[124]The difficulty for the respondent upon this issue is that by the time of the mediation meeting, Mrs Richardson reached conclusions upon the claimant’s grievance. These were set out in some detail in the grievance outcome letter at pages 321 to 325. The respondent’s procedure dictates that mediation may be used outside the formal process but may only be used within the formal process in the event of findings in the employee’s favour. What is impermissible is for there to be a formal process, for the outcome to notified to those concerned and then for there to be a subsequent mediation where determinations had been found wholly against the employee. 10.5 Reserved judgment with reasons – rule 61 23 March 2017[125]Further, the mediator must be a neutral third-party manager. Gail Richardson did not meet that requirement. In addition, the mediation must take place without a note taker.[126]Regrettably, therefore, there were a number of significant breaches by the respondent of its own procedure.[127]These procedural breaches were not properly investigated by Mr Kirby. As we say, he did not even interview Mrs Richardson. He found that proceeding with the mediation before the claimant had received her formal written outcome did not impact upon the process. This is, with respect, a remarkable conclusion given that the claimant was notified of the outcome of the grievance verbally very shortly before the mediation commenced. On any view, this had a significant impact upon the conduct of the mediation and doubtless led to the heightened state of emotion of both the claimant and Kirsty Sherburn (who had been told that the allegations against her were not upheld only three days prior).[128]The Employment Judge asked Mr Kirby whether he was concerned that Gail Richardson had dealt with both the grievance and the mediation. Mr Kirby replied rather vaguely and unsatisfactorily that he would have been concerned but “I cannot remember the advice” that he was given (presumably by the respondent’s human resources department).[129]The Tribunal therefore determines that Mr Kirby reached reasonable conclusions upon the appeal against Mrs Richardson’s findings upon the claimant’s grievances. This is for the same reason as we concluded that Gail Richardson had reached reasonable conclusions. However, we find that Mr Kirby reached unsustainable conclusions upon the reasonableness of the procedure carried out by the respondent around the mediation.[130]In paragraph 61 of her witness statement, the claimant says that “At the end of March [2019] on my bank statement I found that I had not been paid correctly in regard to my sick pay for March and that for two months February and March I would have received a total of approximately £105 to live on”. The claimant telephoned to enquire of the position. She spoke to Miss Swindells. This conversation took place on 20 March 2019.[131]Miss Swindells’ evidence is that the claimant had run out of her entitlement to sick pay by this stage. She had been absent from work, as we know, from the end of October 2018. Miss Swindells looked into the matter and found that the claimant had been underpaid by £5.17. Her calculations are at page 378. Miss Swindells says that the claimant “seemed to understand this and be happy enough”. A copy of the calculations at page 378 were sent to the claimant on 22 March 2019 (page 376).[132]The claimant was paid the £5.17 owed to her in the pay run at the end of April 2019. Evidence of this is at page 432.[133]In July 2019, the claimant resurrected the matter claiming that she had not been paid the correct amount of statutory sick pay. Miss Swindells looked into the case again and agreed with the claimant that an error had been made. She explains in paragraph 11 of her witness statement that, “it seemed her manager had made a mistake and put one week’s absence into the system on a single day, so that it appeared she had only one day sick that week. This meant only one day was counted for calculating her SSP”. She goes on to say that, “unfortunately this can happen occasionally, as it’s a manual process for a manager to complete and is 10.5 Reserved judgment with reasons – rule 61 24 March 2017 open to human error. In this case it resulted in an underpayment of £52.50. Please see my emails with our payroll provider at page 389B explaining this”. The £52.50 was paid to the claimant in August 2019.[134]The claimant says in paragraph 61 of her witness statement that she remained sure at the time that she had not received the correct amount of sick pay in March 2019. She says that she had lost trust in the respondent and resigned with immediate effect.[135]Her letter of resignation is at pages 381 and 382. It is worth setting this out in full: “Resignation from post as part time sales assistant On 9 March 2019 you wrote to me to let me have your decision regarding my grievance appeal. Your letter is dated 8 February 2019 although it was posted much later than this. Towards the end of the letter you explained that New Look would be in contact with me to set up a mediation and to review my flexible working contract. Receiving your letter, I have not heard from anyone at New Look at all to further these ideas, and as you will appreciate, I do not agree with the fairness of the outcome of my grievance appeal. To add to the stress and concern that I have about New Look’s management of my grievance, and the conduct of my manager, Kirsty Sherburn, I have now received only a small proportion of the statutory sick pay to which I am entitled, and despite a request for this to be investigated I am told that it is correct as I was not set up on the system as long term sick by my manager. My most recent payslip confirms that you have paid only £105 for the entire month when I should have been receiving Statutory Sick Pay at the statutory rate for each week during which I have been absent from work and sick. The previous month I received no wage at all due to this error and I have received no contact informing me of any issues during any of my absence. Clearly, I cannot survive on £105 for two months. In addition, I have asked New Look to pay unused holiday pay for the holiday year ending 31 March 2019 but have been told that this has not been authorised despite my obvious need. I also need to add that my grievance has been based upon the bullying conduct of Kirsty Sherburn. Although New Look has no established dress code, and although I have always dressed appropriately for work, during August 2018 I was criticised for wearing training shoes – shoes which I have worn for a number of months prior to this without any issue or comment from any manager – because (as you are aware) of a medical condition associated with my knees – hyperflexion. Mrs Sherburn’s insistence that I do not wear training shoes to work, and her conduct following that incident – conduct that was bullying and victimising – has led me to be absent from work suffering from stress, a fact confirmed by my GP’s fit notes. Having received the benefit of legal advice about my position I can see that these are examples of direct discrimination. New Look clearly had a responsibility to make reasonable adjustments to the way I conducted my work to take into account my known knee condition and had to ensure that Mrs Sherburn did not bully or victimise me so as to cause me stress in the way she has. 10.5 Reserved judgment with reasons – rule 61 25 March 2017 In these circumstances, and as a result of New Look’s conduct, and its clear indication that it has no belief in the reasonableness of my complaints I regard my contract of employment as at an end. For the avoidance of doubt this letter should be treated as my letter of resignation which I tender as a direct response to New Look’s breaches of contract. I’m looking for you to make proposals to compensate me for discrimination and unfair dismissal but make the point that I intend to take this matter further.”[136]Mr Kirby spoke to the claimant on 10 April 2019. He followed up with a letter of 11 April 2019 at pages 384 and 385. He asked the claimant to reconsider her resignation. He offered the claimant a week to “cool off” and reconsider. He mentioned that there was a new store manager at Crystal Peaks following Mrs Sherburn’s departure.[137]On 15 April 2019, the claimant replied to Mr Kirby (pages 387 and 388). Amongst other things, the claimant observed that Mr Kirby had informed her in his letter of 11 April 2019 that there was no guarantee that, if she retracted her resignation, he could assure her that she would be able to continue working 20 hours per week. It was upon this basis, the respondent suggested that the claimant resigned because she could no longer sustain working for the respondent alongside her university schedule.[138]This concludes our findings of fact.
The relevant law
[139]We now turn to a consideration of law. Upon the complaint of constructive unfair dismissal, it is for the claimant to show that she was dismissed. By section 95(1)(c) of the 1996 Act, there will have been a dismissal where the employee terminates the contract under which they are employed (with or without notice) in circumstances in which they are entitled to determinate it without notice by reason of the employer’s conduct.[140]It is therefore for the claimant to satisfy the Tribunal that the respondent was in repudiatory breach of contract, that the claimant resigned at least in part in response to the breach and that she did not waive or affirm her right to resign in response to it.[141]The relevant term of the contract in question in this case is the implied term of mutual trust and confidence. In Malik v Bank of Credit and Commerce International SA [1997] IRLR 462 the term was defined as follows: “The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”. In Baldwin v Brighton and Hove Council [2007] IRLR 231, the Employment Appeal Tribunal confirmed that the original formulation of “calculated and likely” was an error. The correct formulation is that “the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.[142]Where there is conduct which amounts to a breach of the implied term of trust and confidence it will follow that there has been a fundamental or repudiatory breach going to the root of the contract entitling the employee to resign and claim constructive dismissal. It is not enough for the employee to find the employer’s 10.5 Reserved judgment with reasons – rule 61 26 March 2017 actions upsetting or to feel that they are unreasonable. Unreasonable behaviour on the part of the employer does not amount to a breach of the implied term of mutual trust and confidence. The breach must be so fundamental and serious that the employee cannot be expected to work any longer for the employer. Authority for this proposition may be found in Bournemouth University Higher Education Corporation v Buckland [2010] ICR 908.[143]The Tribunal’s task therefore is to look at the employee’s conduct as a whole and determine whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it. The Tribunal will take into account all the circumstances which have a bearing upon this objective assessment.[144]Where the employee waits too long after the employer’s breach of contract before resigning, they may be taken to affirm the contract and thereby lose the right to claim constructive dismissal. The issue of affirmation is essentially one of conduct and not simply the passage of time. What matters is whether, in all of the circumstances, the employee’s conduct has shown an intention to continue in employment rather than resign. Resigning from a job is a serious matter with potentially significant consequences for the employee. The more serious the consequences, the longer the employee may take to make such a decision.[145]Where, as here, an employee is on sick leave at the relevant time, it is not so easy to infer that they have decided not to exercise their right to resign. Affirmation may be implied by prolonged delay or if the innocent party calls on the guilty party for further performance of the contract by, for example, claiming sick pay. As observed by Langstaff P in Chindove v William Morrisons Supermarkets Plc [UKEAT/0201/13), the question of affirmation is one of conduct rather than of time. An important part of the context is whether the employee was at work, so that it could be concluded that they were honouring the contract and continuing to do so in a way inconsistent with deciding to go. Where the employee is on sick and not working, that observation has nothing like the same force.[146]A course of conduct can cumulatively amount to a fundamental breach entitling an employee to resign and claim constructive dismissal following a “last straw” incident, even if the last straw by itself does not amount to a breach of contract. The final act in the series must contribute to the breach and cannot be innocuous or utterly trivial.[147]An employee who is the victim of a continuing cumulative breach of contract is entitled to rely on the totality of the employer’s acts, notwithstanding a prior affirmation. In Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1 CA it was held that if the last straw incident is part of a course of conduct that cumulatively amounts to a breach of the implied term of trust and confidence, it does not matter that the employee had affirmed the contract by continuing to work after the previous incidents which formed part of the same course of conduct. The effect of the last straw is to revive the employee’s right to resign. Where the act that tips the employee into resigning is entirely innocuous it will be necessary to consider whether any earlier breach has been affirmed.[148]The repudiatory breach need not be the sole reason for the claimant’s resignation. It need only be a material reason. We refer to Meikle v Nottinghamshire County Council [2005] ICR 1 and Wright v North Ayrshire Council [2014] ICR 77 as authority for this proposition. The essential question is whether the repudiatory breach played a part in the constructive dismissal. 10.5 Reserved judgment with reasons – rule 61 27 March 2017[149]Upon a constructive dismissal case, the Tribunal may only take into account those facts that were known to the claimant at the time of her resignation. Subsequently acquired information plainly cannot be a material reason for an employee’s decision to resign. We refer to the case cited by Miss Owusu-Agyei as authority for this proposition: W Devis and Sons Limited v Atkins [1977] ICR 662, HL. It follows therefore that the claimant cannot rely upon her after acquired knowledge, for example, of Kirsty Sherburn finding out the outcome of her grievance before she was told as a material reason for her resignation.[150]Should the claimant succeed in establishing that she has been constructively dismissed, then it will be for the respondent to show that the dismissal was for one or more of the statutory permitted reasons. As we said earlier, the respondent does not seek to advance a permitted reason for dismissal. Accordingly, it follows that if the claimant establishes that she has been constructively dismissed, then the complaint of constructive unfair dismissal will succeed.[151]We now turn to the claimant’s complaint brought under the 2010 Act. By section 26 of the 2010 Act, a person harasses another if they engage in unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of violating the other’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The prohibited conduct of unlawful harassment related to a relevant protected characteristic is unlawful in the workplace pursuant to section 40 of the 2010 Act.[152]By section 136 of the 2010 Act, the burden is upon the claimant to prove facts from which the Tribunal could decide that an unlawful act of harassment has taken place. If she does so, then the burden shifts to the respondent to prove a non-discriminatory explanation unrelated to the protected characteristic in question.[153]There are three essential elements of a harassment claim: Unwanted conduct. That has the proscribed purpose or effect, and Which relates to a relevant protected characteristic.[154]The Equality and Human Rights Commission’s Code of Practice on Employment notes that unwanted conduct can include “a wide range of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour” – paragraph 7.7. In 7.8 of the Code, guidance is given to the effect that the word “unwanted” is essentially the same as “unwelcome” or “uninvited”.[155]The unwanted conduct must have the purpose or effect of violating the complainant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them.[156]Conduct that is intended to have this effect will be unlawful even if it does not in fact have that effect.[157]However, conduct that does have that effect will be unlawful even if that was not the intention. In deciding whether the conduct has the proscribed effect the following must be taken into account: 10.5 Reserved judgment with reasons – rule 61 28 March 2017 The perception of the complainant. The other circumstances of the case. Whether it is reasonable for the conduct to have that effect. Therefore, the test has subjective and objective elements to it. The subjective part involves the Tribunal looking at the effect that the conduct of the alleged harasser has on the complainant. The objective part requires the Tribunal to ask whether it was reasonable for the complainant to claim that the conduct had that effect. The object of the legislation is to ensure that claims are not brought upon the basis of hypersensitivity.[158]The unwanted and offensive conduct must be related to a relevant protected characteristic. One of these is disability. Whether or not the conduct is related to the characteristic in question is a matter for the appreciation of the Tribunal. The mere fact, in disability cases, that unwanted conduct occurs at a time when a claimant satisfies the definition of a disabled person will not necessarily mean that it is related to the disability.[159]The necessary link will be relatively easy to establish where reference is made to the protected characteristic. On the other hand, where the link between the conduct and the protected characteristic is less obvious, Tribunals may need to analyse the precise words used together with the context in order to establish whether there is any association between the two.[160]By section 123 of the 2010 Act, a complaint of a contravention of the 2010 Act in the work place must be brought to the Employment Tribunal within three months starting with the date of the act to which the complaint relates or such other period as the Tribunal thinks just and equitable. Conduct extending over a period is to be treated as done at the end of the period.[161]If a complaint is out of time, it for the complainant to convince the Tribunal that it is just and equitable to extend time for the presentation of her claim. In Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, Underhill LJ said that the “best approach for a Tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular, … the length of, and the reasons for, the delay.” The Tribunal’s exercise of the power to extend time is the exception and not the rule and should be used with restraint (Robertson v Bexley Community Centre [2003] IRLR 434 CA). That said, exceptional circumstances are not required to be shown.[162]The focus when considering a just and equitable extension should not simply be upon whether the claimant ought to have submitted the claim in time. Tribunals must weigh up the relevant prejudice that extending time would cause to the respondent and to the claimant.
Conclusions
[163]We now turn to our conclusions. We shall apply the legal principles which we have outlined to the findings of fact which we have made in order to arrive at our conclusions upon the issues in the case. 10.5 Reserved judgment with reasons – rule 61 29 March 2017[164]We shall start with the complaint of constructive unfair dismissal. Employment Judge Rostant identified the claimant to have raised seven aspects of the respondent’s conduct which she contended breached the implied term of trust and confidence. We shall consider each of these in turn.[165]The first is the conduct of Kirsty Sherburn as described in paragraph 5 of the claimant’s grounds of claim. We cited paragraph 5 above. By way of reminder, this is the till and trainers’ incident. The relevant factual findings are in paragraphs 50 to 78.[166]It is our judgment that Kirsty Sherburn’s conduct upon the day of the till and trainers’ incident breached the implied term of trust and confidence and was repudiatory. It is the case that there was reasonable and proper cause for her to speak to the claimant about the difficulties which she was having operating the till. There was also reasonable and proper cause to enquire of the claimant as to whether there was a training need. However, there was no reasonable and proper cause for this discussion to take place in a public area. There was also no reasonable and proper cause to rebuke the claimant about the condition of her footwear, much less to do so in a public area. Objectively, Kirsty Sherburn’s conduct that day was likely to seriously damage trust and confidence. There can be no reasonable and proper reason for a store manager to treat a junior employee in this manner.[167]The second issue is the claimant’s contention that she suffered bullying at the hands of Kirsty Sherburn between August and November 2018. This contention fails on the facts. The factual findings are in paragraphs 41 to 49 and 80 to 87. We agree with Miss Owusu-Agyei’s submission that the claimant was reduced to reliance upon generalities and was unable to point to any specific instances of conduct seriously damaging of trust and confidence. She led no evidence upon the clocking in or inhaler incidents. Her evidence did not come up to proof upon the issue of the allocation of shifts. The episode around annual leave in November 2018 was simply an administrative error.[168]The third issue is the claimant’s contention that there was a delay in dealing with her grievance. This allegation fails upon the facts. The factual findings are in paragraphs 95 to 97. There was no actionable delay in dealing with the grievance. We agree with Miss Owusu-Agyei that there was constant process in dealing with the grievance. There may be some criticism of Gail Richardson for not interviewing Kirsty Sherburn for almost two months after the submission by the claimant of her grievance. However, this did not contribute to any delay given the context of the health and well-being meetings and the claimant’s understandable uncertainty over whether to pursue mediation.[169]The fourth contention is that the respondent’s handling of the mediation on 14 January 2018 was a repudiatory breach. The claimant’s contention upon this is set out in paragraph 10 of her grounds of claim which we cited above. This essentially amounted to a contention that the respondent was not seeking to mediate but rather focused upon the facts of the case and “defending Kirsty”.[170]In our judgment, the respondent’s conduct of the mediation was likely to seriously damage trust and confidence. The factual findings are in paragraphs 98 to 110 and 122 to 129. Firstly, the respondent failed to follow their own procedure as set out above. Secondly, Gail Richardson (who was the fact finder) undertook the mediation. This was an unfortunate eliding of roles. It was contrary to the respondent’s policy that the mediation should be conducted by a neutral third- 10.5 Reserved judgment with reasons – rule 61 30 March 2017 party manager. Thirdly, the claimant had been led to believe that only Kirsty Sherburn and Gail Richardson would be present and that no notes would be taken. The claimant then found herself in a meeting with three store managers, one of who was taking notes. The claimant was not warned beforehand that the respondent was proposing to depart from their procedure in this way. Fourthly, the tenor of the meeting focused upon what had happened rather than looking to mediate a solution as the claimant had been led to believe by Kirsten Self would be the process. Fifthly, the claimant had been told that her grievance had failed minutes before the mediation commenced. As the respondent was conducting a formal grievance process, mediation was therefore contra-indicated pursuant to the respondent’s policies. The matter was then compounded by the belated suggestion of a neutral third-party mediator. Again, this is contrary to the respondent’s procedure (as the grievance was rejected as a whole) and may be viewed as acknowledgement by the respondent of the inadvisability of Gail Richardson conducting the mediation at all given her factfinding role.[171]Plainly, there was no reasonable and proper cause for the respondent’s conduct. They appear to have misunderstood their own policy. There was no real attempt to mediate. There can be no justification for springing upon the claimant the presence of a third manager to take notes contrary to her clear expectations. The claimant was justifiably upset by the respondent’s handling of the mediation.[172]The fifth issue is the rejection by Gail Richardson of the claimant’s grievance. In our judgment, this fails upon the facts. The factual findings are in paragraphs and 112. The Tribunal parts company with Gail Richardson upon the issue of the till and trainers’ incident. However, it does not follow from this that Mrs Richardson’s investigation was below reasonable management standards such as to constitute a breach of the implied term of trust and confidence. We have little doubt that the outcome of the grievance came as a disappointment to the claimant and that subjectively this was damaging of trust and confidence. However, there was reasonable and proper cause for Gail Richardson to reach the conclusions which she did. Objectively, therefore, there was no breach of the implied term of trust and confidence.[173]The sixth issue is the rejection of the claimant’s appeal against Gail Richardson’s decision. The Tribunal upholds the claimant’s complaint about this in part. The factual findings are in paragraphs 113 to 129. We find that Mr Kirby reached reasonable and sustainable conclusions in upholding Gail Richardson’s decision upon the grievances themselves. However, on any view, his conclusions upon the claimant’s complaints about the conduct of the mediation was one which no reasonably competent manager properly directed could have reached. It was therefore seriously damaging of trust and confidence.[174]It is difficult to see how Mr Kirby could have concluded that the decision of Gail Richardson to informally impart the outcome of the grievance to the claimant shortly before the commencement of the mediation had no impact on the procedure. The most cursory of investigations would have shown that (as a consequence) the mediation was beset by an air of tension from the outset such that the mediation was unlikely to succeed.[175]Mr Kirby appears to have not considered whether the respondent’s conduct was in breach of their own procedures. His reply to the Employment Judge’s question as to whether he was concerned about Gail Richardson adopting a dual position 10.5 Reserved judgment with reasons – rule 61 31 March 2017 of mediator and fact finding was unimpressive. He could not recall what advice he had been given by the respondent’s human resources department upon this which is indicative of a lack of concern about the eliding of her roles contrary to the respondent’s own policy. No reasonable manager properly directed and carrying out a reasonable investigation could have concluded that there was little of concern about the process followed around the mediation. There was no reasonable and proper cause for Mr Kirby to fail in his investigation as he did. Such was therefore damaging of trust and confidence.[176]The seventh and final issue concerns the underpayment of the claimant of her sick pay in February and March 2019. The factual findings are in paragraphs 130 to 134. There appears to be no factual dispute that the claimant was underpaid. Miss Swindells identified an underpayment of £5.17. Miss Swindells was incorrect in her calculations. The claimant was right to suggest that the underpayment was in a greater amount.[177]Miss Owusu-Agyei submits that the claimant accepted Naomi Swindells’ explanation given on 22 March 2019. In our judgment, this submission is not factually sound. The claimant plainly did not accept the explanation. In her resignation letter she continued to maintain that she had received only a small proportion of the statutory sick pay to which she was entitled. Only when the matter resurfaced in July 2019 did the respondent look at matters again and determine that the claimant was in fact correct after all. It follows therefore that Naomi Swindells carried out an inadequate investigation prior to the claimant’s resignation.[178]There can be no reasonable and proper cause for underpaying the claimant in this way. Human error is not an adequate excuse. Given the claimant’s circumstances, the shortfall was financially significant. The underpayment was therefore seriously damaging of trust and confidence.[179]The claimant resigned just two weeks after her enquiry of Naomi Swindells and the notification that the claimant would only be paid a further £5.17 as opposed to £65. The claimant therefore resigned quickly after the underpayment had occurred and the respondent’s failure to correct it. She was absent from work through ill health at the time. In the circumstances, it is difficult to see any basis upon which it can be said that she affirmed the contract between 22 March and 8 April 2019. This is a very short period in the context of almost 20 years of employment and where the employee is upon long term sick leave.[180]The failure to pay her the proper amount of sick pay was clearly a material reason for her decision to resign. It is included in her resignation letter. It is not the only reason for her resignation. However, it need not be the only reason. We agree with the respondent that part of the reason for her resignation was the claimant’s ongoing concerns about working hours. That does not avail the respondent given our finding that the sick pay issue was a material reason for her resignation.[181]Upon this basis, we find that the claimant was constructively dismissed by the respondent. Her success upon the seventh aspect of the respondent’s impugned conduct is sufficient.[182]As the underpayment of her wages was in itself a fundamental breach, she has no need to rely upon the “last straw” doctrine. The final act in the series of acts upon which the claimant relied was in and of itself a fundamental breach in any 10.5 Reserved judgment with reasons – rule 61 32 March 2017 case. The claimant therefore has no need of a final straw in order to revive any earlier affirmed breaches.[183]For the avoidance of doubt, we find that the claimant did affirm the contract following the till and trainers’ incident. At the latest, this occurred in midSeptember 2018. There was no further conduct from Kirsty Sherburn constituting a breach of the implied term of trust and confidence. By her conduct, the claimant after mid-September 2018 affirmed the contract. She turned in for work until the end of October 2018. After 2 November 2018, she was on long term sick leave. She availed herself of the grievance and mediation procedures. She accepted salary and the sick pay. She indicated her intention to be bound by and perform her employment contract. Her resignation was seven months after the till and trainers’ incident. On any view, therefore, the claimant waived her right to resign in reliance upon Kirsty Sherburn’s conduct in September 2018. In any case, she said in paragraph 5 of the claim form that being berated about the till issue was “not something that I got upset about.” It follows that the claimant resigned in response only to the trainers’ rebuke (albeit that on our findings she affirmed the contract afterwards in any case upon this aspect of matters).[184]We reach a similar conclusion upon the issue of mediation. The impugned conduct occurred on 14 January 2019. The claimant did not then resign for almost three months. She continued to call upon the respondent to perform the contract by sending her the grievance findings and embarking upon the appeal process. Again, she continued to draw statutory sick pay. In those circumstances, the claimant waited too long and waived her right to resign in response to the fundamental breach around the conduct of the mediation.[185]We find that the claimant did not waive the breach around the rejection of her appeal (in part). The appeal outcome was only received by her on or around 9 March 2019. She resigned a month later. By this point, the respondent was failing to pay her statutory sick pay. The claimant remained absent from work upon ill health. The claimant’s conduct therefore does not constitute a waiver of that fundamental breach in the context of such a long employment. The claimant was entitled to resign and did resign in part in response to this breach.[186]If the Tribunal is wrong to find that the underpayment of the statutory sick pay was a fundamental breach, in our judgment, it nonetheless cannot be said to be innocuous or utterly trivial. It contributes to the series of acts constituting a breach of the implied term of trust and confidence. Therefore, if the underpayment of the statutory sick pay is to be viewed through the prism not of a fundamental breach in and of itself but as a final straw, it is sufficient to revive the waived fundamental breaches around the conduct of Kirsty Sherburn regarding the claimant’s trainers (the first allegation) and the conduct of the mediation (the fourth allegation). (The rejection of the appeal is a fundamental breach in any case which was not waived by the claimant).[187]The claimant made express mention of Kirsty Sherburn’s conduct in her letter of resignation of 8 April 2019. Whilst she did not expressly refer to the conduct of the mediation in her resignation letter, we are satisfied from the evidence that it did contribute to her unhappiness with the respondent and was a reason for her resignation. She made clear her unhappiness with the conduct of the mediation in the course of the appeal hearing before Mr Kirby.[188]In summary therefore we find that the respondent was in breach of the implied term of trust and confidence and therefore in fundamental breach of the contract 10.5 Reserved judgment with reasons – rule 61 33 March 2017 arising from Mr Kirby’s conduct of the claimant’s appeal against the grievance outcome and the failure to pay statutory sick pay. The claimant did not affirm the contract of employment and waive her right to resign in response to those breaches. The breaches were a material reason for her decision to resign. She was therefore constructively dismissed.[189]Alternatively, if (contrary to our findings) the failure to pay statutory sick pay (and indeed Mr Kirby’s conduct) were not breaches of the implied term they were more than innocuous and trivial. They materially contributed to the series of acts constituting a breach of the implied term of trust and confidence. They are therefore sufficient to revive the otherwise waived breaches concerning the till and trainers’ incident and the conduct of the mediation. They were material reasons for the claimant’s decision to resign.[190]Either way, therefore, the claimant’s complaint of constructive dismissal succeeds. As she has been dismissed, it is for the respondent to show a statutory permitted reason for the dismissal. None has been advanced. It follows therefore that the claimant was constructively unfairly dismissed.[191]We now turn to the harassment complaint. This in part is about the till and trainers’ incident. We have found as a fact that Kirsty Sherburn improperly criticised the claimant’s footwear. We have determined that the claimant was not prevented from wearing trainers at work between August and November 2018. The harassment complaint therefore, on the facts as found, centres upon the events that took place upon the day of the till and trainers’ incident only and the treatment of the claimant by Mrs Sherburn at the mediation meeting.[192]We have little difficulty in finding that from the claimant’s perspective there was unwanted conduct upon both of those days. It was uninvited and unwelcome. There was also no proper cause for what happened in September 2018 given that the claimant’s trainers, on our findings, were not dirty and unkempt. Kirsty Sherburn’s questioning of the basis for the claimant’s allegations was improper in the context of the mediation and was caused because of the respondent’s mishandling of it.[193]The difficulty for the claimant is upon the issue of whether the unwanted conducted related to the protected characteristic of disability. This turns to a large degree upon the question of Kirsty Sherburn’s knowledge of the claimant’s disability.[194]Mrs Sherburn did know that the claimant had fallen at college in January 2018. She was aware that the claimant had need for a crutch for several weeks and wore a knee support over her clothing over this time. We have also found that Mrs Sherburn knew from Katie Frith’s risk assessment that there was a risk of the claimant’s knee “popping out”.[195]There is no evidence that there was any further need for medical intervention (to the respondent’s knowledge) after the end of January 2018. In those circumstances, we find that Mrs Sherburn did not have actual knowledge of the claimant’s disability nor was there enough to put her on notice that there was an issue around disability such as to constitute constructive knowledge of it. The circumstances are little different to a member of staff suffering, say, a sporting injury and attending work on crutches for a short period. That would not be sufficient to vest the employer with actual or constructive knowledge of disability. 10.5 Reserved judgment with reasons – rule 61 34 March 2017[196]The claimant complains, with some justification, that personnel records are missing. This is consistent with a theme which emerged during the course of the hearing of poor record keeping upon the part of the respondent, hence the very late disclosure of documents and records around the grievance and mediation. We therefore accept the claimant’s case that the respondent has been unable to produce all the records pertaining to the claimant in the respondent’s possession.[197]However, a difficulty for the claimant is that there was no need for her to undergo medical treatment for her knee between 2006 and 2018 and after January or February 2018. Doing the best we can therefore in this somewhat unsatisfactory situation we are compelled to conclude that even if personnel records were available there would be little to put the respondent on notice that the claimant’s knee condition constituted a disability for the purposes of the 2010 Act. If no medical records were created over this period, it is difficult to see why personnel records would be created pertaining to the claimant’s medical condition either.[198]Even if we are wrong on the issue of knowledge, we find that Kirsty Sherburn’s comment about the condition of the claimant’s footwear was not something that is inherently related to the protected characteristic of disability nor were the remarks made during the mediation.[199]In reply to a question from the Employment Judge, Mrs Sherburn accepted that she knew that the claimant had a need to wear trainers because of her knees.[200]However, we find that the remark about the condition of the trainers was said to the claimant by Kirsty Sherburn in a fit of pique or temper. Further, we found as a fact that Mrs Sherburn did not prevent the claimant from wearing trainers after the till and trainers’ incident. We find as a fact that Mrs Sherburn’s demeanour in the mediation was because she knew she had been vindicated as she had been told five days prior that no action was to be taken against her.[201]We conclude therefore that the remark made by Mrs Sherburn about the claimant’s footwear was unprofessional. It was a rebuke made to the claimant as she turned away from Mrs Sherburn after the discussion about the operation of the till. The remark was made in a public area which was inappropriate. It was, on our findings, made in circumstances of stress. The Tribunal cannot accept, given these findings, that Kirsty Sherburn’s conduct related to the claimant’s protected characteristic of disability. If it were, we may have expected to see Mrs Sherburn preventing the claimant from wearing trainers thereafter.[202]We conclude that the conduct of the mediation by Mrs Richardson was unprofessional. It should not have been entertained because the claimant’s claims were dismissed in their entirety. There were many flaws with the way it was carried out as we have said.[203]The Tribunal finds that the two instances of impugned conduct were unwanted. We find that the remarks about the claimant’s trainers were said with the purpose of violating the claimant’s dignity and creating an intimidating, degrading and humiliating environment for her. Kirsty Sherburn spoke to the claimant this way because she was cross with her. She had spent too long on the till dealing with a customer. This had caused Kirsty Sherburn the need to conduct an investigation by viewing CCTV that day. It distracted Mrs Sherburn from her numerous other duties. It led to her speaking inappropriately to the claimant by doing so on the shop floor. 10.5 Reserved judgment with reasons – rule 61 35 March 2017[204]We find that the conduct of the mediation was not done for the purpose of violating the claimant’s dignity or creating an intimidating etc environment for her. However, it reasonably had that effect. The claimant was faced with three managers in circumstances where: all knew that her grievance had been dismissed in toto, the claimant found that out just minutes before the meeting, one of the managers was taking notes and there was no real attempt to engage with mediation as a process as outlined to the claimant by Kirsten Self.[205]Crucially, however, we find that the comment and the conduct of the mediation were not related to the claimant’s disability.[206]We accept of course that the claimant’s need to wear trainers arose from the disability. However Mrs Sherburn had insufficient information to constitute actual or constructive knowledge of disability such that the two instances of impugned conduct were related to disability.[207]The fact that the claimant in any event had a disability was not the reason why the remark was said. It was not a comment which related to disability but rather which related to Kirsty Sherburn’s state of mind that day and wish to take matters out on the claimant. The conduct at the mediation was unrelated to disability as it arose from Mrs Sherburn’s vindication (and doubtless her relief at the outcome) and Gail Richardson’s mishandling of it.[208]A question arises in any case as to whether the Tribunal has jurisdiction to consider the harassment complaint. The till and trainers’ incident was a one-off fact occurring at the latest on 18 September 2018. It was a one-off act as the mediation did not take place until 14 January 2019, around four months later. It was not part of a continuing act. We have found as a fact that there were no incidents of harassment between the date of the till and trainers’ incident and the mediation. The claimant cannot plug the gap by reliance upon acts which do not infringe the provisions of the 2010 Act. The claimant therefore needed to bring proceedings upon the till and trainers’ issue by 17 December 2018. She did not commence ACAS conciliation until 11 April 2019. This is almost four months outside the limitation period laid down by section 123 of the 2010 Act.[209]Even taking the claimant’s case at its height, the bullying of her by Kirsty Sherburn ended prior to her taking a holiday in the last week of October 2018. The claimant never returned to work afterwards. She was no longer exposed to Mrs Sherburn’s management. On that analysis, therefore, at the height of the claimant’s case, the claim has been brought around three months out of time. However, as there were no acts of discrimination or harassment after 18 September 2018 (on our findings) the fact remains that the claim about the till and trainers’ incident has been brought almost four months out of time.[210]The claim about the conduct in the mediation was also brought out of time. Early conciliation commenced within the primary limitation period. The mediation took place on 14 January 2019. Again, it was a one-off act. Acas conciliation commenced on 11 April 2019. It ended on 11 May 2019. The limitation period expired on 11 June 2019. This claim was presented out of time.[211]Upon the till and trainers’ incident, the generalised bullying complaints and the complaint upon the harassment within the mediation the claimant sought to deal with the matter internally. She raised a grievance about the first two matters. She raised the grievance promptly after she went on long term sick leave. Kirsty Sherburn was interviewed by Gail Richardson on 9 January 2019. The interview 10.5 Reserved judgment with reasons – rule 61 36 March 2017 was therefore proximate to the events in question. Any delay in Gail Richardson interviewing Kirsty Sherburn was not attributable to the claimant but rather was to cater for the respondent’s commercial convenience. She appealed against the grievance findings and the conduct of the mediation. Mr Kirby could have but did not interview Gail Richardson about her conduct of the mediation.[212]Given those circumstances, there is no forensic prejudice to the respondent. There is a good explanation for the delay in that the claimant was seeking to deal with matters internally. The balance of prejudice therefore favours the claimant. In the circumstances, it is our conclusion that it is just and equitable to extend time to vest the Tribunal with jurisdiction to consider the harassment claims albeit that it they fail upon their merits.[213]The matter shall now be listed for a remedy hearing upon the claimant’s successful constructive unfair dismissal complaint. In the interests of the future good conduct of the case, a case management preliminary hearing shall be conducted by the Employment Judge by telephone. The parties must therefore write to the Tribunal with their dates of availability within the next two months in order to facilitate the listing of the case management hearing. This step must be taken within 21 days of the date of promulgation of this Reserved Judgment.
Conclusions
[1]Basic award By application of the statutory formula in section 119 of the Employment Rights Act 1996 the claimant is entitled to be paid a basic award in the sum of £3,600. It is not just and equitable for there to be any reduction.[2]Compensatory award It is just and equitable to make a compensatory award as follows: 2.1. For past loss(a) Loss of statutory rights - £500(b) Loss of long service award - £675(c) Loss of staff discount benefits - £1,000 Total £2,175 2.2. For Future Loss (a) Losses from 24 May 2022 to 31 August 2023 66 weeks loss of earnings at £190 per week - £12,540 Case No: 1803618/2019 66 weeks loss of Working Tax Credit in the sum of £67 per week£ 4,422 Total £16,962 2.3. Uplift pursuant to section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 At ten per cent on the amount awarded by way of past and future loss £1,913.70 Total compensatory award £21,050.70 2.4 Capped at 52 weeks’ pay - £8,538.40[3]The total amount of the basic and compensatory award is in the sum of £12,138.40.[4]The Recoupment Regulations do not apply to this award.[5]The claimant’s application for a costs order against the respondent is refused.[6]The amount stated to be payable pursuant to paragraph 3 shall be paid by the respondent to the claimant within 14 days of the date below.