Mr M Keenan v Department for Work and Pensions: 1804312/2019
EMPLOYMENT TRIBUNALS
Case No 1804312/2019
Between
Mr M KeenanClaimantDepartment for Work and PensionsRespondent
Before
Employment Judge Maidment
Members
Mr R WebbMr G CorbettIn person for claimantMr A Serr (instructed by Counsel) for respondentDate 8 March 2021
JUDGMENT
[1]The Claimant’s complaint of victimisation pursuant to Section 27 of the Equality Act 2010 succeeds in respect of a reference sent by the Respondent to WEA dated 12 March 2020.[2]The Claimant’s remaining complaints of victimisation fail and are dismissed. ORDERS[1]The matter will be listed for an attended hearing to take place from 9 November 2020 onwards as to remedy in respect of the detriment referred to at paragraph 1 above with a time estimate of one day.[2]By not later than 7 October 2020 the claimant shall provide to the respondent copies of his GP medical notes from the beginning of 2010 to date and any other relevant remedy documents. The claimant confirms that there are no other medical records upon which he intends to rely.[3]By not later than 7 October 2020 the claimant shall provide to the respondent his statement of evidence as to remedy together with his schedule of loss. 10.2 Judgment - rule 61 March Case No: 1804312/2019
REASONS
Issues
[1]The Claimant alleges that there is a conflict of interest in my hearing this case. That is because he says that he has previously put in a complaint against me. Whilst it is right that Mr Keenan has appeared before me as a representative, acting for a former work colleague of his in a claim which I struck out (Mr J Malcolm v Delta Academies Trust 1805522/2018), I have absolutely no recollection of ever having been made aware of any subsequent complaint about my conduct of that case.[2]In the circumstances , and since this preliminary hearing involves a pure question of law there is no reason for me not to hear it.[3]The breach of contract claim relates to the provision of a reference or references which were in terms outside the format specified in an agreement, which was entered into in October 2015 following the Claimant’s dismissal by this Respondent in September 2014.[4]As that agreement, even if it was “a contract connected with employment” , had not been entered into at the date of dismissal and the alleged breaches were even later, this claim did not arise, nor was it outstanding on the termination of the employees’ employment: article 3 (c) Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. The Respondent referred to Miller Bros and FP Butler Ltd v Johnston [2002] IRLR 386 which is clear authority in support of this conclusion. Case: 1804312/2019[5]The tribunal therefor has no jurisdiction to hear the breach of contract claim: it is dismissed and only the post-employment victimisation claim founded on the same facts will proceed. JUDGMENT having been sent to the parties on 10 September and written reasons having been requested by the Claimant in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
Issues
[1]The claimant’s complaint in these proceedings is of unlawful victimisation. The claimant brought Employment Tribunal proceedings against the respondent in 2013 alleging disability discrimination and a further claim on 30 July 2015 of victimisation in the provision by the respondent of employment references. This latter complaint of victimisation succeeded in respect of a form of reference given to him by the respondent dated 21 May 2015. A different form of reference provided to him dated 27 April 2015 did also amount to detrimental treatment, but this was not found to have been provided because of a protected act.[2]The factual background of this earlier victimisation complaint is relevant to the current complaint in terms of how the tribunal found that the respondent dealt with the issue of the provision of references in respect of former employees and the difference when an employee had subsequently brought successful Employment Tribunal proceedings. The judgment and reasons were included within the agreed bundle of documents for this case and the tribunal was referred to the findings therein.[3]There was no dispute that the above mentioned earlier Employment Tribunal proceedings amounted to protected acts.[4]The claimant’s claim now is that he was subjected to detrimental treatment in the provision/non-provision of references to several prospective employers. He complains about the reference provided to Academies Enterprise Trust in June 2017, to a (now agreed) failure by the respondent to provide a reference to Kerr Mackie Primary School in October 2017, and then about the references supplied to Pudsey School in January 2018, to WEA on 18 March 2018 and to Horsforth New Laithes Primary School in October 2018.[5]In respect of Academies Enterprise Trust, Pudsey School and Horsforth New Laithes Primary School, the respondent denies that any reference was sent at all. It accepts that a reference was sent to WEA on 18 March 2018, which was not in the form previously agreed with the claimant.
Evidence
[6]The Tribunal had before it an agreed bundle of documents numbering some 276 pages.[7]The tribunal heard evidence from the claimant. The respondent elected not to call any witness evidence.[8]Submissions were then heard from both parties, the claimant providing his submissions in writing and supplementing them in an oral submission.[9]Having considered all relevant evidence, the tribunal makes the following factual findings.
Facts
[10]The claimant was employed by the respondent until 17 October 2014. He commenced Employment Tribunal proceedings against it in 2013 which led to a judgment upholding certain claims of disability discrimination and of unfair dismissal. The claimant brought further Employment Tribunal proceedings in July 2015 claiming victimisation in respect of references issued by the respondent to prospective employers. Two forms of detrimental reference were issued. One dated 27 April 2015 referred to the claimant’s dismissal as being for unsatisfactory attendance and detailed the number of days of sickness absence. A second, dated 21 May 2015, omitted the reason for the termination of the claimant’s employment but made no positive comments regarding the claimant performance whilst working for the Respondent. Only the second of the two references was found to have been issued because of a protected act. His complaint of victimisation in respect of that reference, therefore succeeded.[11]The respondent, in these proceedings, accepts that the earlier Employment Tribunal proceedings brought by the claimant constitute protected acts.[12]Prior to the 2015 victimisation claim being heard by the tribunal, the claimant did correspond further with the respondent regarding the appropriate form of any reference to be given to prospective employers and a form of reference was agreed which gave the dates of the claimant’s employment and commented positively on the claimant’s performance and conduct without specifying the reason for the claimant leaving the respondent’s employment.[13]The respondent outsources, to a large extent, responsibility for the provision of references for former employees to a third-party company known as SSCL which operates from offices in Newcastle. It appears that, at all material times in these complaints, SSCL also maintained an offshore operation based in India. The tribunal has seen references to matters being passed onshore by a group of call and reference handlers with non-British origin names. Whilst the tribunal has heard no evidence on the point, it is unlikely that a reference to moving a matter “onshore” was a reference to a referral to the respondent in circumstances where the term “client” or “business partner” would have been much more likely to have been used. The terms “onshore” and “offshore” denote changes in physical location.[14]In any event, the claimant had an agreed form of reference which in the respondent’s own terminology was labelled a “compromise agreement” reference. The respondent’s practice was to flag up in the case of relevant individual former employees that, if a reference request was made in respect of them, a compromise agreement reference was to be provided. This was to ensure that an operative of SSCL did not simply raise a standard form of reference, but instead ensured ultimately that the agreed form of reference was issued following a still required approval by one of the respondent’s managers.[15]The respondent and SSCL had shared access to an electronic system where reference requests were logged as well as actions taken in response to them. Any particular requirements in respect of an individual’s reference could and were logged within that system and appropriate forms of reference could and were stored in a document folder.[16]An entry on the system from a Mr Renton on 11 July 2016 relating to the claimant recorded that “if this officer contacts us for a compromise agreement reference we need to make Nina Ballantyne in CCSA aware first.” Ms Ballantyne was an HR consultant in the respondent.[17]In November 2016, the respondent received a reference request from the Elland Academy. On 17 November the respondent replied to the Academy stating that reference could only be provided with the claimant’s written consent and enclosing a consent form. A letter of the same date was also issued asking, for security/identity checking reasons, for 2 out of the following: the claimant’s date of birth, national insurance number and his former staff number with the respondent.[18]It is noted that the respondent appears to have reacted to a further reference request from the Elland Academy by sending correspondence in identical form to Jane Jones of Elland Academy dated 28 November 2016.[19]The respondent then issued a reference addressed to Delta Academies Trust dated 25 November. It is accepted that this related to same position in respect of which the Elland Academy had requested a reference – Elland Academy was part of the Delta Academies Trust. This was in the form previously agreed with the claimant – a “compromise agreement” form of reference.[20]The claimant position is that the agreed reference was only sent because he had to chase it up and the respondent understood that the claimant was requesting a copy. The respondent’s systems include a note of 30 November 2016 by Mr Renton that a reference request had been received from Delta and checked with Ms Ballantyne first, to see if the template they were going to use was acceptable. She had confirmed that it was, so that the reference was posted to Jane Jones. A further note on the system by Mr Renton of the same date is to the effect that the claimant had requested a copy of the reference “we issued”. This was noted as having been posted on 30 November 2016.[21]The claimant was successful in obtaining the position with Delta, which was on a temporary contract.[22]The claimant applied for a job around June 2017 at Swallow Hill Community College, part of the Academies Enterprise Trust. On 11 June the claimant was invited to an interview, which took place on 15 June. The claimant was unsuccessful in this application, of which he learned a few days after the interview. His belief (on the basis of a later discovery referred to below) is that it was because an adverse reference had been issued by respondent. The claimant’s evidence was that, in the education sector, employers request references before interviews. He said that on the application form there was a question asking for the candidate’s agreement to that.[23]On 17 June 2019 the claimant asked the Academies Enterprise Trust for a copy of the reference the respondent issued to it in 2017. The response he received was that the Trust only held data which it had a statutory duty to retain or which it was actively using. That did not include references in relation unsuccessful candidates which, it said, were disposed of immediately following the conclusion of the appointment process.[24]The tribunal cannot agree with the claimant that this response disclosed or inferred that any reference for him had actually been received from the respondent. It is a generic and general response regarding the retention of a category of data. There is no evidence of a reference request having been made from the Trust to the respondent or the respondent issuing any consent or security information forms, as was, the tribunal finds its normal practice. The respondent’s electronic systems do not log any request or action taken in respect of this position.[25]The tribunal cannot simply accept that because the Trust, as a matter of its expressed ordinary practice, asked for references before an interview, it asked in this case and received one from the respondent. The fact that an interview took place is not confirmatory of the fact that a reference had been received. It is indeed possible that the interview went ahead despite the lack of any reference receipt and that a reference was not followed up in circumstances where the claimant was unsuccessful in any event. The tribunal does not know. However certainly it cannot conclude on the evidence that any reference was provided by the respondent and, if so, what form that reference might have been in.[26]Around October 2017 the claimant applied for a position with the Kerr Mackie Primary School. The claimant now accepts, as a matter of fact, that no reference was ever sent by the respondent to that school. The failure to provide any reference at all amounted to a separate detriment, he says.[27]On 12 October 2017 the claimant emailed the respondent’s HR Director General asking for an alternative reference request email address as specified addresses had appeared to be no longer active. The claimant said that Ms Begum of the School had received bounce back emails when requesting references from the respondent. The claimant received a response on 13 October asking if the claimant was a current or former employee and the type of reference sought. He replied on 16 October saying that he was a former employee but asking Ms Alder of the respondent to be careful “as I should have a compromise employment reference on my file due to my successful Employment Tribunal claims…” A response shortly afterwards on that morning provided the claimant with an alternative email to be used in requesting references. It noted also that Ms Alder had just received a reference request from Ms Begum. The claimant was also advised that he could call a number to give verbal permission for SSCL to release the claimant’s personal information. The claimant responded to that point saying that was not correct.[28]The respondent issued Ms Begum on 18 October 2017 with the standard letter the tribunal has already referred to asking for personal security information. There is no evidence that this was fabricated. The claimant doubts that this letter was sent and notes that no one from the school has ever made reference to it. There is, however, no basis for the tribunal concluding that this was fabricated. The claimant’s position is that he had already given consent to the production of a reference and that there was no reason why Ms Begum would not have replied to the security information requested such that a reference ought to have been generated. The claimant agreed that Ms Begum had not sought any personal security information from him, but said that she didn’t need to, as the information was on his job application form already, at least his date of birth and national insurance number. There is no record, however, of a reply from Ms Begum to the respondent.[29]The claimant’s evidence is that he was interviewed but was unsuccessful in his application. He did not ask for any feedback. His conclusion now was that he had not been successful because no reference had been received.[30]The claimant made a subject access request of the School in May 2019. He received a response of 7 May from the School’s data protection officer, Mr Lewis-Ogden which said that he had no authority to release any reference without the consent of the referee. He went on that the school had no desire to be obstructive and had attempted to obtain consent from the referee but without success as the individual was no longer employed by the relevant organisation. The claimant had assumed that Mr Lewis-Ogden was talking about the respondent as referee.[31]The School was further contacted by the respondent during the disclosure exercise in these proceedings. On 19 February 2020 Mr Lewis-Ogden advised that the School had only received one reference in respect of the claimant. from Delta Academies Trust. It was an individual at that organisation who had left employment, thus preventing the School from obtaining consent to the release of the reference. He went on that he did not believe that the school had received any reference from or on behalf of the respondent. The School’s Business Manager, Heather Proctor, confirmed to Mr Lewis-Ogden that the DWP reference was not the one received and from memory she believed all the correspondence was bounce back emails. She went on: “Mr Keenan was updated by yourself and I to this effect at the time.” Mr Lewis-Ogden reverted to the Government Legal Department on 24 February relaying that information. There has been debate as to when “at the time” referred to, the suggestion being made that the claimant had been aware at the time of his application to the School that no reference had been sent by the respondent. That is possible, but it is more likely that the only interaction the claimant had with Mr Lewis-Ogden, given his position as a data protection officer, was when he made the subject access request at a later stage.[32]In any event, whilst it can be concluded that no reference was provided by the respondent, there is no evidence that the respondent received a response to its request for security information. If that information was not provided to the respondent then no reference would have been issued. The respondent would not have chased it. Without evidence that the information was provided, the tribunal cannot conclude that there was a deliberate failure to provide the reference. The tribunal does not agree with the claimant that, since Ms Begum had been chasing a reference, a suggestion that Ms Begum did not respond to the respondent’s request was absurd.[33]The claimant next applied for a position with Pudsey School in January 2018. The claimant has sought disclosure of the reference he believes the respondent issued in respect of this position, but received a response from Kate Spence, Business Manager of the School that documents for an unsuccessful candidate were only retained for six months. The claimant sought confirmation that as part of the shortlisting process, the reference would have been requested. The response from Ms Spence was that if the claimant had a particular referee listed on his application form then “we would have approached them for a reference as we do with all applicants.”[34]There is no evidence of any communications between the School and the respondent in either direction. It is not possible for the tribunal on the evidence to conclude that any reference was sent by the respondent. The respondent’s systems do not indicate the issue of any reference. Ms Spence’s response to the claimant was an explanation of the School’s general practice, not confirmation that the respondent had been asked for a reference.[35]It is noted that the claimant was unsuccessful in this application.[36]The claimant next applied for a position with WEA in early February 2018. The claimant was successful at interview. He took with him to his interview a copy of the reference which the respondent had previously issued to him addressed to Delta Academies Trust. He disclosed this to WEA.[37]Nevertheless, WEA wished to have a form of reference directly from the respondent. The claimant emailed SSCL on 5 March 2018 saying that WEA had requested a reference over two weeks previously but had not received a response. He asked that the reference be provided as soon as possible and that he be given a copy “as previously agreed within my compromise reference”.[38]Internal correspondence within SSCL requested a postal address for WEA and that security information be requested. The claimant provided security information in response to this communication being forwarded to him. A further internal email within SSCL stated: “we can send the reference letter through email however we require the postal address to be updated on the reference letter.”[39]On 12 March 2018 a reference went out to WEA which gave the dates of the claimant’s employment, but which also referred to the termination of his employment following “dismissal due to unsatisfactory attendance” with no positive comments made regarding the claimant’s performance or conduct. The system log notes the receipt of a reference request from WEA on 12 March 2018 with security and consent received. A further entry also made by an SSCL employee called Haokip records that the reference letter had been issued stating: “employment reference letter prepared and sent to onshore for printing and posting.” The tribunal does not agree with the claimant that this ought to be taken to mean that it was sent to a DWP manager for approval.[40]The claimant maintains that the aforementioned internal communication regarding updating the postal address is evidence that this (noncompromise agreement) reference was already on the respondent’s systems and had therefore been provided already to other prospective employers. This communication is not proof of that or that this is what had occurred. There would always be a need to insert or update a postal address in any reference and there is, again, no evidence that the form of reference which was issued to WEA was issued to any other prospective employer.[41]Having received this reference, WEA did not raise it or what it said with the claimant. His employment continued. Whilst the claimant said that there could have been conversations between the respondent and WEA, this was raised by him as a possibility. He has no evidence of any such conversations or their content.[42]The claimant discovered that this form of reference had been issued to WEA following a subject access request he made of WEA on 3 April 2019.[43]He then wrote to the respondent asking for employment references sent in respect of him since November 2016. Mr Chris Francis of SSCL asked internally for copies of any references sent in respect of the claimant since November 2016. He also asked for confirmation if there was a compromise agreement in place. A colleague, Piyush Singh, responded on 17 May 2019 saying that “the officer is in compromise agreement record” but that no reference letter had been issued for him from November 2016 until now. The tribunal notes that in fact a reference, as already mentioned, was sent to Delta Academy on 17 November 2016 and there was of course also the reference sent to WEA.[44]The claimant’s position is that this statement was a lie. In particular, the respondent was dishonest in not admitting that the agreed reference had been sent to Delta. If it had been truthful, he said, then that would have disclosed a reference letter which could easily subsequently have been updated and sent to other prospective employers in circumstances where in fact adverse references had instead been sent.[45]Mr Francis responded to Piyush Singh saying that, according to the system notes, a reference had been issued on 12 March 2018 (the WEA reference) and asking for a copy. In subsequent internal correspondence, Mr Francis noted that the reference had been issued in March 2018 without the full compromise agreement wording and he needed to share what had been sent with claimant as well as what should be sent. A response from Michael Renton of 22 May apologised saying that he should have seen this note also in the call centre and he set out the form of compromise agreement reference which should have been used. He said that he had saved a revised template in his folder, that this must be used and that Nina Ballantyne needed to see the reference before it was issued. Mr Francis then advised internally (attaching the wording which had to be used) that this had to be included in the compromise agreement folder for claimant and asking that the reference be drafted and sent to Mr Francis as they needed to get the respondent’s approval before it was sent out to the claimant.[46]It is clear that some investigation then took place as to how WEA had been issued with the incorrect form of reference. The response on 30 May of Vincent Geevarghese to Mr Francis advised that this should not have been sent by the team as the request consisted of compromise agreement wording. The processor should have sent it onshore for the team to include that wording. Feedback had been sent to the processor and it was stated that they would ensure that these instances were not repeated.[47]The claimant received a letter of 5 June 2019 from Mr Francis in response to a request for a copy of the investigation report. Mr Francis stated that the conclusion was that the reference had been issued as a result of human error. The processor, it was said, should have checked to see if there was any agreed compromise agreement wording before compiling the letter. The letter had been generated without such a check.[48]The claimant accepted that none of the individuals referred to as involved with the reference processing were people known to him. Whilst the claimant was adamant that the WEA reference must have already gone to Nina Ballantyne for approval, in circumstances where this is what the procedure provided for, there was no evidence that it had done.[49]The claimant applied for a further position with Horsforth New Laithes Primary School in October 2018. The claimant says that he was shortlisted on 10 October and understood that the respondent would be contacting his referees. He was interviewed shortly afterwards, wasn’t successful in the application and did not seek feedback. The tribunal accepts that the school requested a reference. The tribunal accepts that on 11 October 2018 the respondent replied with the standard two letters seeking firstly consent and secondly security information. Again, the claimant’s understanding from the School was simply that any documentation had been destroyed. There was no evidence that a reference had ever been received or that the School had responded to the requests for information. The tribunal cannot conclude on the evidence that a reference was ever sent.[50]The claimant subsequently applied for a position with Broadgates Primary School. A reference was requested. The respondent wrote on 28 May with the consent form and separate request for security information. The claimant, however, withdrew from the application process, he said, because of the effect of medication he had taken to assist with his anxiety attacks.
Applicable law
[51]Pursuant to section 27 of the Equality Act 2010: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – (a) B does a protected act; …. Sub-paragraph (2) of this section provides: (2) Each of the following is a protected act – (b) bringing proceedings under this Act; …
Conclusions
[52]In this case there is no dispute that the Claimant indeed did a protected act by his bringing of Employment Tribunal proceedings alleging unlawful discrimination and victimisation respectively. It is also accepted on behalf of the Respondent that acts of post-employment victimisation are covered by the wording of section 27(1).[53]As regards the meaning of “detriment” the Tribunal refers to the case of Chief Constable of West Yorkshire Police –v- Khan [2001] 1 WLR where it was said that the term has been given a wide meaning by the Courts and quoting the case of Ministry of Defence –v- Jeremiah [1980] QB 87 where is was said that “a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment”.[54]To succeed in a complaint of victimisation, the detriment must be “because” of the protected act. This requires knowledge of the protected act.[55]For guidance, the Tribunal directs itself to the statement of Lord Nicholls in Nagarajan –v- London Regional Transport [1999] IRLR 572 where he stated at paragraphs 18 and 19: “Thus far I have been considering the position under s.1(1)(a). I can see no reason to apply a different approach to s.2. “On [racial] grounds” in s.1(1)(a) and “by reason that” in s.2(1) are interchangeable expressions in this context. The key question under s.2 is the same as under s.1(1)(a): Why did the complainant receive less favourable treatment? The considerations mentioned above regarding direct discrimination under s.1(1)(a) are correspondingly appropriate under s.2. If the answer to this question is that the discriminator treated the person victimised less favourably by reason of his having done one of the acts (“protected acts”) listed in s.2(1), the case falls within the section. It does so even if the discriminator did not consciously realise that, for example, he was prejudiced because the job applicant had previously brought claims against him under the Act…. Although victimisation has a ring of conscious targeting this is an insufficient basis for excluding cases of unrecognised prejudice from the scope of s.2. Such an exclusion would partially undermine the protection s.2 seeks to give those who have sought to rely on the Act or been involved in the operation of the Act in other ways. Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome discrimination is made out. Read in context, that was the industrial tribunal’s finding in the present case. The tribunal found that the interviewers were “consciously or subconsciously influenced by the fact that the applicant had previously brought tribunal proceedings against the respondent”.”[56]It is further clear from authorities, including that of Igen Limited –v- Wong [2005] ICR 931, that for an influence to be “significant” it does not have to be of great importance. A significant influence is rather “an influence which is more than trivial. We find it hard to believe that the principle of equal treatment would be breached by the merely trivial.”[57]In the Khan case Lord Nicholls put forward that the “by reason that” element “does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the “operative” cause, or the “effective” cause. Sometimes it may apply a “but for” approach. For the reasons I sought to explain in Nagarajan –v- London Regional Transport, a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases “on racial grounds” and “by reason that” denote a different exercise: Why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”[58]The Act deals with the burden of proof at Section 136 as follows: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravenes the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provisions”.[59]In Igen guidance was given on the operation of the burden of proof provisions in the preceding discrimination legislation albeit with the caveat that this is not a substitute for the statutory language. The Tribunal also takes notice of the case of Madarassy v Nomura International Plc [2007] ICR 867.[60]It is permissible for the Tribunal to consider the explanations of the Respondent at the stage of deciding whether a prima facie case is made out (see also Laing v Manchester CC IRLR 748). Langstaff J in Birmingham CC v Millwood 2012 EqLR 910 commented that unaccepted explanations may be sufficient to cause the shifting of the burden of proof. At this second stage the employer must show on the balance of probabilities that the treatment of the Claimant was in no sense whatsoever because of the protected characteristic. At this stage the Tribunal is simply concerned with the reason the employer acted as it did. The burden imposed on the employer will depend on the strength of the prima facie case – see Network Rail Infrastructure Limited v Griffiths-Henry 2006 IRLR 865.[61]Applying the aforementioned legal principles to the facts as found, the Tribunal reaches the following conclusions.
Conclusions
[62]As regards the claimant’s applications for employment with the Academies Enterprise Trust, Pudsey School and Horsforth New Laithes school, the tribunal has not been able, on the balance of probabilities, to make any finding that an adverse form of reference in respect of the claimant was sent to them.[63]The claimant’s detriment complaints - complaints that a non-compromise agreement form of reference was sent - in respect of those job applications must therefore fail.[64]As regards the application to the Kerr Mackie school, the claimant’s initial case in respect of the School and indeed all of the other schools was that the respondent deliberately issued an unfavourable reference.[65]It has since been accepted in respect of the Kerr Mackie School, that no reference was issued at all.[66]A refusal to provide an employment reference, particularly where there is an agreement to provide an agreed form of reference in respect of an employee, would certainly amount to an act of detriment.[67]However, on the evidence, the tribunal has only been able to conclude that no reference was provided – not that there had been a refusal on the respondent’s part. An innocent failure is not what the claimant contends for as that would not have the necessary connection with the protected acts.[68]The respondent required the School to provide security information as a standard precondition to it then providing a reference. The tribunal could not conclude that that security information was ever provided to the respondent. There was in the circumstances therefore not the detrimental treatment contended for by the claimant.[69]Alternatively, the best evidence is that after the respondent requested the security information the paper trail goes cold such that, on the available evidence, the reference was not provided due to the lack of follow up by the School with the security information. This detriment complaint must therefore fail.[70]It is accepted by Mr Serr that the reference provided to WEA was capable of amounting to a detriment. That is both in the sense that it provided negative information whilst omitting positive comments and in that it was not the form of reference the respondent had been agreed would be provided to prospective employers.[71]It is sensibly accepted also by Mr Serr that, if this claim was not brought within the applicable time limit, it would be just and equitable to extend time in circumstances where the claimant was only aware of the reference when he made a subject access request of WEA in April 2019 and where he submitted his tribunal complaint within three months of that discovery, allowing for extensions of time as a result of the mandatory ACAS Early Conciliation procedure.[72]Has then the claimant shown facts from which the tribunal might reasonably conclude that the issuing of the detrimental reference was because of his earlier Employment Tribunal proceedings?[73]Mr Serr understandably and with appropriate force refers to the fact that the respondent had already in the past issued a favourable reference to Delta Academies Trust noting the care with which that reference had been provided. He queried why the respondent would wish then to have done the claimant down in respect of his application to WEA. He refers to the lack of proximity of the WEA reference to the protected acts. He says there is no evidence that anyone involved knew the claimant or about his litigation. Whilst that is correct, those processing the request could have found out about this, including by and after being alerted to the possibility of previous proceedings by the reference on the system to there being a compromise agreement reference in place. It is said that the references were produced by a large processing centre dealing with information relating thousands of DWP personnel. The tribunal can accept that the ordinary process for generating references for the respondent could be described as remote and impersonal, but it has no idea of the prevalence of former DWP employees with compromise agreement reference requirements. The issue of the reference appears, Mr Serr says, to have been an administrative error. The tribunal does not disagree that this is a very possible explanation.[74]However, systems were in place so that the correct references would be supplied. The respondent’s procedures envisaged that the need for any compromise agreement reference would be flagged up and then generated to be checked by Ms Ballantyne, who was of course aware of the claimant’s protected acts.[75]Various alerts were on the system with the claimant’s reference history and steps which needed to be taken. The individual processor may have failed to notice these, but we do not know how he or she can have failed in that manner given the number and prominence of the alerts on the system.[76]The reference then produced is not in fact in the same form as the previous references produced and which were the subject matter of the claimant’s earlier Tribunal claim. This is new reference wording. The tribunal has no idea how it came to be drafted and why in this form.[77]The respondent has provided inconsistent explanations in that the processor, it is said, should have sent the reference request “onshore” and then, in the communication the claimant received from Mr Francis, ought to have processed it, him or herself after checking for any agreed wording.[78]On the claimant raising the question of how many references had been sent, the respondent did not accurately inform the claimant that 2 references had been supplied from November 2016. The system log, however, clearly disclosed the references which had been issued.[79]The claimant has suffered unlawful victimisation previously in the provision of a reference by the respondent.[80]The tribunal’s findings and aforementioned factors, viewed as a whole, cause the tribunal to look to the respondent to provide an explanation that the issuing of the reference to WEA was in no sense whatsoever related to the claimant’s protected acts. The claimant has successfully shifted the burden of proof.[81]The respondent’s difficulty is then that the tribunal has no evidence or explanation from it or any potential witnesses. The tribunal has before it submissions based on documents, but where the tribunal is left having to consider unevidenced possibilities. The tribunal does not know why any of the 5 or 6 witnesses, which it was said at the first preliminary hearing would be giving evidence, have not done so. Mr Serr can tell us what could have happened or might have been in the minds of the reference processors, but he cannot tell us what did happen or what they did know or think.[82]The respondent has in all circumstances failed to discharge the evidential burden now upon it, such that the claimant’s detriment claim in respect of the WEA reference must succeed.[1]As compensation for victimisation the respondent is ordered to pay to the claimant as compensation for injury to feelings the sum of £4,000 together with an additional sum of £541.54 in respect of interest thereon. The claimant’s application for costs is refused.[1]This remedy hearing resulted from the claimant’s successful complaint of victimisation, heard on 8 and 9 September 2020 in respect of a reference sent by the respondent to a new employer of the claimant, WEA, dated 12 March 2018. The claimant has also made a costs application which was listed to be determined today. Evidence[2]This hearing took place as a hybrid hearing with the claimant attending the Leeds Employment Tribunal. The tribunal panel and respondent’s representative attended by CVP videoconferencing. This arrangement was made in view of the claimant’s lack of access to appropriate equipment. During the course of the hearing the claimant expressed some dissatisfaction that it was not being recorded. The tribunal explained that it was not currently the practice within the Leeds Employment Tribunal for hearings conducted by CVP videoconferencing to be recorded.[3]The tribunal heard evidence from the claimant who confirmed, as his evidence, a typed “amended remedy submission” which included matters of evidence and submissions/legal argument. The tribunal had before it an agreed remedy bundle numbering some 146 pages and which included a transcript of his medical records. It became apparent during submissions that the claimant was referring to some documents contained only in the original liability hearing bundle. Whilst the Employment Judge had this with him, the tribunal’s non-legal members did not. The members were appraised of those documents during the tribunal’s deliberations.[4]The claimant included within his witness statement/remedy submission, reference to issues arising with a new employer, WEA. The claimant wished the tribunal to read this evidence, which he said had been prepared before he entered into a non-disclosure agreement with WEA. He said that it was reasonable to conclude that WEA’s “unexplained acts” were due to the respondent’s unfavourable reference. He had also disclosed documents relating to his employment with WEA which were in the agreed remedy bundle. Before the tribunal, the claimant’s position was that the nondisclosure agreement prevented him from referring to the circumstances surrounding the termination of his employment with WEA. He would not answer any questions (at all) about his employment with WEA. The tribunal stated its view that he would not be in breach of that agreement, if required by a court of law to answer questions. The claimant was unwilling to accept that position and asked for the tribunal to set out in writing that he would have no liability towards WEA if he answered the respondent’s questions. He proceeded, when asked any questions about his employment with WEA, to say that he could not comment due to him being bound by the nondisclosure agreement. He did not suggest that the tribunal could not or should not have regard to what he had said in his witness statement/submission or the documents he had disclosed, which in fact largely spoke for themselves in terms of the factual scenario of the claimant’s employment dispute with WEA as set out below. The Tribunal also had before it public documents relating to Employment Tribunal claims he had brought against WEA. Factual background and findings[5]The tribunal has been referred to the claimant having been successful in previous Employment Tribunal claims against the respondent. This included a complaint of unfair dismissal and a failure to make reasonable adjustments in a reserved Judgment and reasons sent to the parties on 16 March 2015. The claimant asserts that a finding was made in those proceedings that the respondent had lied to the tribunal. The tribunal has been pointed to no such finding in the earlier tribunal’s judgment and reasons.[6]Another tribunal Judgment of 3 March 2016 found that a form of reference then supplied by the respondent to the claimant dated 21 May 2015 was an act of victimisation. The situation which led to that Judgment also resulted in the claimant and the respondent coming to an agreement about the form of reference which would be issued in respect of him to any prospective employer in the future. This was known within the respondent as a “compromise agreement” form of reference. The claimant subsequently applied for employment positions on the basis that this agreed form of reference would be the one provided on a request of a prospective employer.[7]The claimant has not worked for the respondent since 24 July 2014. He applied for a position with WEA in early February 2018. He was successful at interview, having provided to WEA a copy of an agreed “compromise agreement” form of reference which the respondent had previously supplied to another employer of the claimant, subsequent to him leaving the respondent, Delta Academies Trust, dated 25 November 2016.[8]Nevertheless, WEA wanted a reference directly from the respondent and the respondent supplied the detrimental reference dated 12 March 2018 in response to its request.[9]WEA did not raise this form of reference with the claimant. His employment with WEA continued. The tribunal has made no finding that WEA read the detrimental reference or contacted the respondent to discuss it. It appreciates the claimant’s position that WEA must have done, but there is no evidence to support that.[10]The claimant received the detrimental reference only on 3 April 2019 when he received, from WEA, documentation provided pursuant to a subject access request he made of WEA. The tribunal accepts the claimant’s evidence that he did not notice straightaway that WEA had received a reference from the respondent which was not in the agreed form which the respondent was to provide to prospective employers. The tribunal accepts that the claimant’s primary purpose in requesting documentation from WEA was in respect of an employment dispute he had with WEA unrelated to his offer of employment. He did not initially notice the form of reference provided by the respondent in the paperwork. He contacted the respondent on 10 May 2019 asking for copies of all employment references issued by the respondent from November 2016 and, on balance, it is unlikely that he would have waited this length of time to do so had he been aware of the detrimental reference a significant time before 10 May 2019. The tribunal notes also that the claimant told his doctor about the respondent’s form of reference on 4 June 2018. He did not tell his doctor about it on his earlier doctor’s appointment on 8 May 2019. It is more likely than not that, had he been aware of the reference at the time of his 8 May appointment, he would have told his GP.[11]As noted, the discovery of the reference caused the claimant to seek to ascertain from the respondent how this could have happened and to investigate what form of reference had been provided to other prospective employers in the interim, where the claimant’s applications for employment had been unsuccessful.[12]The tribunal did not conclude that any other acts of victimisation had occurred in the provision or non-provision of a reference or its content to any other prospective employers. The claimant’s belief was and remains nevertheless that he has suffered additional acts of victimisation.[13]There were inaccuracies and inconsistencies in the respondent’s responses to the claimant’s enquiries. The tribunal was unable to make a positive finding as to why the non-agreed form of reference was provided to WEA. The claimant had shown facts from which the tribunal could reasonably conclude there to have been victimisation, such as to shift the burden of proof to the respondent to show that the provision of the reference was in no sense whatsoever related to the claimant’s protected acts. The respondent failed to discharge the burden, having called no witnesses to explain what had happened.[14]In terms of the respondent’s conduct in this case, the tribunal has made no finding that the issuing of the reference to WEA was a malicious and orchestrated act. The tribunal did not know how a processor had failed to notice a number of prominent alerts on the system, where the compromise agreement form was logged as having been placed in the claimant’s folder – hence the requirement of the respondent to provide a non-discriminatory explanation. However, just because the respondent’s procedures provide in certain circumstances for the checking of references by a manager, does not mean that checking occurred here. It was the claimant’s case that a manager of the respondent knew that an unfavourable reference was going out to WEA and was happy to allow that to happen. That was not a finding the tribunal could make. The claimant submits that the tribunal’s earlier Judgment proves that the respondent was guilty of deliberate, malicious and discriminatory victimisation of him and that the respondent has lied to the tribunal to cover up repeated acts of discrimination. He has pointed to paragraphs of the tribunal’s Judgment and evidence before the tribunal at the liability stage in support of that contention. The tribunal has reminded itself of those findings. It notes that in fact the claimant has drawn his own inferences from some of the tribunal’s conclusions to support his argument and is in effect seeking the tribunal to reconsider its liability Judgment. A failure to act, even if not explained to the tribunal’s satisfaction, does not however necessarily equate to a deliberate, malicious or dishonest action. Where an email disclosed appears to be incomplete (with a signature missing), the tribunal cannot simply (and without having any evidence of any text omitted) come to a conclusion that a section has been omitted which shows malicious intent and dishonesty.[15]The respondent did incorrectly communicate to the claimant on 17 May 2019 that no references had been sent in respect of the claimant from November 2016 and provided inconsistent explanations as to what had happened. Wider allegations made by the claimant of a conspiracy were not, however, supported by the tribunal’s findings.[16]At the time the claimant discovered the detrimental reference then, he was still employed by WEA. However, from January 2019 he had been suspended for, the claimant alleged, his having made a protected disclosure in January 2019 relating to the heating. The claimant continued in employment with WEA, albeit he was absent due to ill-health, until he resigned on 9 December 2019.[17]The tribunal has no evidence of any connection between the difficulties the claimant experienced with WEA and the detrimental reference. It has only the claimant’s assertion that WEA’s acts were “unexplained”. The tribunal would note the timeline as follows.[19]The claimant had been prescribed the anti-depressant, citalopram, on 30 November 2012 with a diagnosis of a depressive disorder. He was then prescribed this medication on a continuing basis up to June 2016.[20]The claimant received his offer of employment with WEA by letter of 5 February 2018 with a start date of 12 February. As already referred to, the detrimental reference was (unbeknown to the claimant at the time) sent from the respondent to WEA dated 12 March 2018. The claimant’s employment with WEA continued.[21]The claimant submitted for consideration in the agreed bundle of documents a letter of 1 October 2019 from Krystyna Petersen, an HR consultant engaged by WEA to consider an appeal he had lodged. This referred to an appeal hearing having taken place on 5 September, following an appeal raised on 29 July against a decision at a grievance hearing on 11 June 2019 rejecting the claimant’s grievances. The letter records that the claimant had raised a complaint about the heating at his place of work which was to be investigated. A Judgment of Employment Judge Wade on 30 August 2020 referred to the claimant first bringing a tribunal complaint on 12 March 2019 in which he complained that an 8 week period of suspension from January 2019 was a detriment on the grounds of his having made a protected disclosure.[22]The claimant’s suspension followed (in time at least) allegations made against the claimant of sexual harassment.[23]The claimant then submitted a further grievance to WEA - there is reference in the appeal decision to the claimant raising 9 complaints/grievances between 27 January and 10 June 2019. A grievance meeting had been set for 18 February until, on 17 February, the claimant raised a further grievance.[24]On 12 March the claimant brought a tribunal complaint against WEA.[25]He made a subject access request and received WEA’s response on 3 April 2019, which included the respondent’s detrimental reference. As found, he did not notice this until sometime later, on or shortly before 10 May 2019.[26]Details of the allegations against the claimant were provided to him by WEA on 12 April 2019. An investigation meeting was scheduled for 17 April, which the claimant did not attend.[27]The claimant attended a preliminary hearing in his tribunal complaint against WEA on 3 May 2019. This resulted in a deposit order which was not met by the claimant.[28]The claimant saw his GP on 8 May 2019. This produced a diagnosis of a stress-related problem with a discussion of medication or counselling which the claimant was not keen on. The claimant was recorded as going through stress at work [with WEA] since January 2019. He referred to the problem with the heating and that he was suspended due to a harassment investigation. He referred to recently going through the tribunal, that the harassment allegations had been withdrawn and that WEA wanted him to go back to work without explanation. He said that he had put in a grievance against them. He referred to being able to sleep, but having a lack of motivation and concentration.[29]Again, the claimant said (and it is accepted) that he had identified the detrimental reference after this appointment – on or shortly before 10 May 2019.[30]He next returned to his GP on 4 June 2019. The claimant told the tribunal that this was a pre-arranged review rather than an appointment he specifically requested. He explained to his doctor that his tribunal hearing with WEA was going to be in September, but that his manager still hadn’t disclosed the witness statements about him. He also referred to coming to know that the respondent had sent the wrong reference letter saying that he had been dismissed previously due to inadequate attendance which was not in line with the agreed form of reference. He said that he was also going to take the respondent to the tribunal and voiced concern that his future career would be affected. He said that he had a solicitor to deal with this and said he “is feeling more anxious and stressed due to all these”. There was a diagnosis of “anxiety state” and the claimant was prescribed citalopram with a review to take place in 8 weeks. The claimant’s position before the tribunal was that the state of his health was due to the respondent’s reference. The claimant has taken citalopram on an ongoing basis since then.[31]The claimant’s whistleblowing detriment complaint against WEA was struck out by a Judgment of 7 June 2019.[32]The claimant attended his grievance hearing with WEA on 11 June.[33]The claimant saw his doctor again on 25 July when he described himself as “a bit more relaxed, but not much benefit from citalopram yet… Internal investigation going on at work, not heard anything more yet, also thinking of look for diff job – feels trust is gone, also might start part-time first when returns.”[34]The claimant appealed against the grievance decision on 29 July 2019 with the appeal decision issued on 1 October 2019. This acknowledged some shortcomings in terms of process. However, the material points of the appeal were not upheld.[35]The claimant returned to his doctor on 14 October 2019 when he mentioned the possibility of resigning from WEA’s employment and claiming constructive dismissal. He also referred to having had his first tribunal hearing in respect of the current proceedings against the respondent saying: “mood and stress level up and down”.[36]It is clear from the aforementioned Judgment of Employment Judge Wade, that the claimant resigned from his employment with WEA on 9 December 2019. He then submitted a further employment tribunal complaint against WEA on 12 February 2020. This included a complaint of unfair dismissal which was struck out by Employment Judge Wade. A complaint proceeded in respect of breach of contract. Ultimately a non-disclosure agreement was reached with the claimant on 17 December 2020. The claimant’s viewpoint, as expressed to the tribunal, was that this was a success. Remedies sought[37]In terms of the remedy sought by the claimant, the first option he gave was to be reinstated by the respondent and then transferred to another civil service department. To cover his losses in the interim period, he sought a payment of compensation in the sum of £135,000 and the crediting of his pension account with additional service/contributions.[38]His second option involved financial compensation only. In that regard he sought an award of injury to feelings of £55,000 based on continuing malicious and dishonest discrimination and victimisation over an 8 year period, aggravated damages of £22,000 on the basis of the respondent’s malicious and dishonest lies and an additional sum of £50,000 by way of exemplary damages. In addition, he sought past and future loss of earnings in the sum of £560,000 and compensation for loss of pension of £247,500. He asked the tribunal to make a financial penalty of £20,000 against the respondent.[39]The claimant also asked the tribunal to make recommendations. These included the provision of an apology recognising unlawful and dishonest treatment over an 8 year period, that the employment tribunal Judgment in this and preceding cases are read and reflected upon with the opportunity of the claimant to attend a meeting with senior managers, the respondent approach the EHRC for assistance in reviewing awareness training with a view to providing effective training, the respondent identify the manager “who approved the WEA reference” and that the respondent confirm that each of those recommendations has been complied with within a specified timescale. Applicable law[40]Awards of compensation in claims of discrimination are governed by section 124 of the Equality Act 2010 which gives to the Tribunal the same power to grant any remedy which could be granted in proceedings in tort before the civil courts. Compensation based on tortious principles aims to put the Claimant, so far as possible, into the position that she would have been in had the discrimination not occurred - see Ministry of Defence v Cannock above – essentially a “but for” test in causation when assessing damages flowing from discriminatory acts.[41]As regards injury to feelings arising out of the detriment as found to be proven, according to Prison Service and others v Johnson [1997] ICR 275 the purpose of an award for injury to feelings is to compensate the claimant for injuries suffered as a result of the discriminatory treatment, not to punish the wrongdoer. In accordance with Ministry of Defence v Cannock [1994] ICR 918 the aim is to award a sum that, in so far as money can do so, puts the claimant in the position he or she would have been had the discrimination not taken place. Pursuant to Corus Hotels Plc v Woodward [2006] UK EAT/0536/05, an Employment Tribunal should not allow its feelings of indignation at the employer’s conduct to inflate the award made in favour of the claimant.[42]The Tribunal was referred to the Vento guidelines (derived from Vento v Chief Constable of West Yorkshire 2003 ICR 318) and to the guidance given in that case where reference was made to three bands of awards. Sums within the top band should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory treatment. The middle band was to be used for serious cases which did not merit an award in the highest band. Awards in the lower band were appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. Nevertheless, the tribunal considers that the decisive factor is the effect of the unlawful discrimination on the claimant.[43]The bands originally set out in Vento have increased in their value due to inflation and, a further uplift of 10% given to general damages pursuant to the case of Simmons v Castle [2012] EWCA Civ 1039. This had given rise to Presidential Guidance which re-drew the middle band for claims brought on or after 11 September 2017. That Guidance has since been revised and the sums uprated in respect of later claims. The Tribunal should apply the bands in the Presidential Guidance dated 25 March 2019 applying to claims presented on or after 6 April 2019. This gives a lower band of £900 - £8800, a middle band of £8,800 - £26,300 and a top band from £26,300 - £44,000.[44]In the context of the potential to make an award for aggravated damages, the Tribunal refers, for the principles to be applied, to the decision of Underhill J in Commissioner of Police of the Metropolis v Shaw [2012] ICR 464.[45]Aggravated damages are not ordinary damages for injury to feelings in consequence of discriminatory acts – that would be mere duplication. They may be awarded in appropriate cases in respect of the manner in which the wrong was committed. In this regard a Tribunal might be looking to see whether there has been behaviour of “a high-handed, malicious, insulting or oppressive manner”. Secondly the motive for the conduct of the employer may be relevant, if the employee was aware of it, in circumstances where spiteful, vindictive or deliberately wounding conduct is considered likely to cause more distress than conduct which results from ignorance or insensitivity. Under both these heads this Tribunal is mindful of the need to avoid duplication if indeed such factors are already compensated for within the award of injury to feelings.[46]The third head under which aggravated damages may be available is where an award is warranted by the Respondent’s subsequent conduct after the discriminatory action. For instance, an award may be appropriate in the case of an employer who has deliberately refused to investigate a clear complaint of discrimination, failed to apologise when discrimination was patent or used its superior power and status to cause further distress. Conduct in the course of litigation may aggravate injury in a manner which can properly result in compensation, albeit respondents are allowed to defend themselves and an adversarial approach to a claimant’s evidence is not in itself a ground for an aggravated award.[47]Exemplary damages are damages that are aimed at punishing the wrongdoer not compensating the victim. They can be justified where there is conduct of servants of Government that is oppressive, arbitrary or unconstitutional, conduct of the respondent designed to be self-profiting or where such damages specifically authorised by statute.[48]An employment tribunal may make “a recommendation that within a specified period the respondent takes specified steps the purposes of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate” (see Section 124(3) of the Equality Act 2010.[49]Section 12 of the Employment Tribunals Act 1996 gives to employment tribunals a discretionary power to impose a fine on an employer found to have breached a claimant’s employment rights where the tribunal considers that the breach had “one or more aggravating features.” What may be an “aggravating feature” is not defined, but clearly is more likely where an employer’s action was deliberate or committed with malice, in the context of a sophisticated employer or where the employer had repeatedly breached the employment right concerned.[50]The Tribunal has the power to make an award of costs by virtue of Rules 76 of the Employment Tribunals Rules of Procedure 2013, which provide, so far as material, as follows: “76 When a costs order or a preparation time order may or shall be made A Tribunal may make a costs order …, and shall consider whether to do so, where it considers that – 1. a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or 2. any claim or response had no reasonable prospect of success…..”[51]The Tribunal must identify the unreasonable conduct, say what was unreasonable about it and say what its effect was: see Yerrakalva v Barnsley MBC [2012] ICR 420 CA.
Conclusions
[52]There cannot in the circumstances be any award of compensation in respect of any financial losses. There was no financial loss flowing from the issuing to WEA of the detrimental reference. The provision of that reference did not result in WEA’s termination of his employment. There is no evidence that WEA had any regard or even read that reference. The claimant has been unable to show a causal link between the detrimental reference the issues the claimant subsequently had in his employment by WEA which led to him resigning and claiming to have been constructively dismissed.[53]There ought, however, to be an award in respect of injury to feelings. Mr Serr suggested a figure at the bottom of the lower Vento band, £1,000. The tribunal after consideration has concluded an award of £4,000 to be appropriate. The tribunal is here compensating the claimant for a single act in terms of the provision of the reference to WEA. The claimant has brought prior successful complaints of discrimination/victimisation and has been compensated for the treatment of him. The tribunal cannot compensate him again for those acts or seek to re-evaluate previous compensation awarded in the light of subsequent acts.[54]The claimant, the tribunal accepts, was upset to learn of the detrimental reference. The tribunal accepts that it did have a detrimental effect on his health. He had continuing anxiety that if he applied for future jobs an unfavourable reference would be issued. However, he was already suffering from stress and anxiety due to the treatment he believed he was suffering from at the hands of WEA. Indeed, the detrimental reference added to his concerns, but he was already in the middle of a very significant employment dispute with WEA involving his own grievances and complaints made against him of sexual harassment. They were the issues with immediate impact on him. Employment tribunal proceedings had already been commenced and were, by May 2019, not going as well as the claimant would have hoped, a deposit order having been made, and the claimant was unfit to attend work due to his state of health. In all the circumstances the detrimental reference from the respondent cannot be said to have been the issue of the most significant impact on his state of mental health. It had a significant impact sense of it being certainly more than trivial, but the tribunal cannot consider it to have been the principal reason for the claimant’s poor health which pre-existed his discovery of the detrimental reference. Indeed, the discovery of the detrimental reference caused the claimant to conclude (which added to his upset) that he had lost out on previous job opportunities by reason of unfavourable references having been provided by the respondent. He sought to make enquiries about prior references and has pursued such complaint in these employment tribunal proceedings which have not been found to be acts of victimisation.[55]The tribunal notes that, after the detrimental reference was discovered, the claimant was for the first time for a while prescribed with citalopram, an antidepressant. The tribunal has accepted the claimant’s evidence that he discovered the detrimental reference on or shortly before 10 May 2020. This discovery did not, however, result in an evidenced downturn in his health to the extent that he had to see his doctor as a consequence. When he visited his doctor in June that was a prearranged review appointment at which he updated the doctor regarding his ongoing issues with WEA, which were still affecting him and mentioned also now his concerns arising out of the detrimental reference.[56]The tribunal, on the basis of the evidence before it, might have considered an award in respect of injury to feelings of around £2500 to be appropriate. However, it then considered that there were aggravating features in this case which justified the greater award of £4000.[57]In particular, the tribunal has regard to the fact that the claimant had already brought a successful complaint of victimisation in respect of a detrimental reference arising out of which the respondent had agreed to provide a particular compromise agreement form of reference on any further enquiry of a prospective employer. Despite this, the claimant suffered the detriment of a reference not in the agreed form being provided to WEA. Further, when the claimant enquired about other references which the respondent might have provided to prospective employers he received an inaccurate response and then inconsistent explanations as to how WEA might have been provided with a reference which did not match that which he had agreed. The award of £4000 represents an uplifted award in respect of injury to feelings to reflect the aggravating features.[58]Interest is payable in respect of this award which over a period of 88 weeks up to this remedy hearing and at a rate of interest of 8% gives a further sum payable to the claimant of £541.54.[59]No additional claim is made in respect of damages for personal injury and the tribunal has no medical evidence before it upon which such a claim could be based beyond the award of injury to feelings.[60]There is no basis for award of exemplary damages or for the making of a financial penalty. The tribunal has not made findings in respect of the respondent’s conduct which justify such awards or penalties. This was not the first receipt by the claimant of a detrimental reference, but the factual scenarios in each case are of material difference.[61]The tribunal on balance declines to make a recommendation. Some of the claimant’s requests are dependent upon the recognition of dishonesty on the respondent’s part, which again is not reflected in the tribunal’s findings. It appears to the tribunal that a system is in place to ensure the provision to any prospective employer of the claimant of the compromise agreement form of reference. Obviously, that system has failed in the past, but the respondent in its internal investigations recognised that the failure had occurred and instructions were given within the third party organisation responsible for generating the references to hopefully ensure that there is no re-occurrence. Without understanding more regarding the mechanics of the generation of a reference, the tribunal is unable to make specific recommendations as to any further steps which ought to be taken. The tribunal has been told by the parties that there is now an understanding that the claimant will not have to give specific consent before a reference is provided to a prospective employer. It is clear that the respondent has and might easily in the future make changes to how the provision of references is outsourced. It appears that in between the two sets of proceedings which have dealt with the issue of references, the service provision responsible for references has been moved offshore. Nor did appear to the tribunal to be helpful to recommend the specific involvement of particular managers in circumstances where personnel and lines of authority will inevitably change from time to time and the same individual will not always be available to deal with any issue arising out of the provision of a reference.[62]Finally, the tribunal considers the claimant’s application for costs in which he claims preparation time in respect of 120 hours of time taken to prepare and pursue his complaint. This is based on the claimant’s submissions on the respondent’s vexatious, malicious and dishonest defence of the proceedings. The tribunal has, however, not made any findings which would enable it to characterise the respondent’s defence in such a manner. The respondent acted reasonably in seeking to defend the allegations brought and it could not be said that it did so without any reasonable prospect of success. An inaccurate statement in the response to the claimant’s claim about a reference which was not one of those complained of, does not lead to a contrary conclusion. The claimant’s contention that this evidenced deliberate concealment of the existence of a compromise agreement reference on his file was not accepted. The majority of the claimant’s individual complaints in these proceedings did not succeed. The respondent certainly hampered itself at the final hearing by not calling any witness evidence, but again it was able to successfully defend a number of the claimant’s complaints on the basis that there was no shifting of the burden of proof. The tribunal does not consider that the circumstances of this case cross the threshold necessary for consideration to be given to an award of costs.