Ms G Platukyte v Secretary of State for Justice: 2200224/2024

EMPLOYMENT TRIBUNALS

Case No 2200224/2024

Between

Ms G PlatukyteClaimant

Secretary of State for JusticeRespondent

Before

Employment Judge Brown

Mr W Brown (instructed by Solicitor) for claimant

Mr J Hurd (instructed by Counsel) for respondent

Date 27 June 2025

JUDGMENT

[1]The Respondent shall pay the Claimant a grand total of £29,065.64 in compensation for injury to feelings and interest thereon, comprising: 1.1. £24,000 injury to feelings award; 1.2. £5,065.64 interest.

[2]The Claimant’s manager did not refuse to endorse her Expressions of Interest and the live warnings were not any part of the reason that her job applications, or expressions of interest, were unsuccessful. The discriminatory treatment therefore did not result in any loss of earnings.

REASONS

[1]By a claim form presented on 5 January 2024 the Claimant brought complaints of discrimination arising from disability and failure to make reasonable adjustments against the Respondent, her employer.

[2]On 30 January 2025 the Respondent wrote to the Tribunal in the following terms, “… the respondent is prepared to concede that it has breached its duty to make reasonable adjustments and that it would not be able to discharge the burden of proof upon it in respect of the section 15 justification defence. The extent of the concession is:

[1]The respondent failed to comply with the duty to make reasonable adjustments during the time period covered by the claimant’s claim, in that it did not always allow the claimant to work from home on a consecutive basis between 3 and 5 days per month, when her symptoms were most acute, and often at short notice.

[2]The imposition of an unsatisfactory attendance warning (stage 1) on 18 January 2023 and a final written warning in relation to attendance on 9 October 2023 (albeit withdrawn on appeal on 7 May 2024) amounted to discrimination arising from the claimant’s disability pursuant to s15 Equality Act.

[3]The Respondent asked that the Final Hearing, which had already been listed, be postponed and re-listed for a one day Remedy Hearing.

[4]At a Case Management hearing on 7 February 2025, EJ Joffe recorded as follows: “4. I checked with the parties that the respondent’s concession covered all of the claims made by the claimant and they confirmed that it did.

[5]One of the claims was for breach of a duty to make reasonable adjustments. It was unclear as to whether the parties were agreed as to the extent of the breach, although it appeared that this should be capable of agreement. I therefore made the following orders:5.1 By 4 pm on 21 February 2025, the respondent will send the claimant a draft statement of agreed facts about the extent of the breach;

5.2 By 4 pm on 7 March 2025, the parties will send the Tribunal a finalised statement of agreed facts.

[6]Once the extent of the breach has been agreed, a judgment by consent on liability can be issued. Claims and Issues

[7]The substantive claims are as identified in the Case Management orders of Judge Emery dated 16 April 2024. The main issues for the remedy hearing will be:7.1 The appropriate compensation for injury to feelings;

7.2 The amount of any financial loss. The claimant says that she lost out on promotions and hence higher rates of pay due to the discrimination she suffered. In particular, she says that the warnings she was given prevented her from being appointed to other roles. 5. Unfortunately, by the start of this remedy hearing, the parties had not finalised their statement of agreed facts. 6. The only outstanding issue from EJ Joffe’s hearing appeared to be the number of occasions on which the Respondent had failed to make reasonable adjustments. I gave the Claimant time to discuss her position with her solicitor, Mr Brown. 7. Having done so, she agreed to the facts as set out in the Respondent’s draft statement of facts as being the basis for the liability judgment, and that the Respondent failed to make reasonable adjustments on 4 occasions: 7 November 2022, 28 February 2023, on an unspecified date in June 2023 and on 19 September 2023.

[8]By consent I issued a liability judgment reflecting the Respondent’s concession and the agreed occasions on which the Respondent failed to make reasonable adjustments, as follows: 1. The Respondent failed to comply with the duty to make reasonable adjustments in that it did not allow the claimant to work from home on the following occasions: 7 November 2022, 28 February 2023, a date in June 2023 and 19 September 2023. 2. The Respondent subjected the Claimant to discrimination arising from disability by giving her an unsatisfactory attendance warning (stage 1) on 18 January 2023 and a final written warning in relation to attendance on 9 October 2023.

[9]I heard evidence from the Claimant. For the Respondent, I heard evidence from Neelam Ahuja, Team Leader, who had been the Claimant’s line manager for a period of time; and Ian Byfield, Operations Manager. There was a Bundle of documents. Both parties made submissions. I reserved my judgment. The hearing was conducted by CVP videolink with no interruptions. Relevant Facts 4. The following statement of facts was agreed: “Facts in relation to the Extent of the Breach Failure to Make Reasonable Adjustments The claimant’s ET1 and Particulars of Claim alleged that from March 2022 the respondent failed to allow her to work from home when symptomatic, contrary to OH Advice. The claimant sets out the monthly symptoms she experiences as a result of her disability at paragraph 4 of her Particulars of Claim as follows: “..menstrually associated migraine attacks with aura, severe pain leading to vomiting and loss of consciousness, heavy bleeding, above average abdominal pain, severe constipation causing excessive gas and bloating and piles”. The case summary at paragraph 47 of the CMO of April 2024 records that the claimant’s disability meant that she could not travel to work on approximately 5 days per month, but was able to work from home. The claimant states that adjustments were agreed and implemented by her managers, including work from home when she could not attend the office; but that the adjustment was withdrawn in March 2022 and she was told she was required to attend the office, if not she must take sick leave. As a consequence, she says her sickness absences were such that she was given a first written warning and a final written warning. The respondent acknowledges that the claimant was informed via email on 4 March 2022 that as of the next week she would be expected to be physically in the office 5 days a week. If she felt unable to attend she would need to contact her manager on the day straight away and he’d see if working from home could be accommodated based on the needs of the business. If working from home could not be accommodated, then the claimant was informed she would have to take the day off as sick. Requests to Work from Home as Symptomatic No confirmation as to the precise dates relied on by the claimant, on which she says her requests to work from home when experiencing her monthly symptoms, were set out as part of the claim brought; however, the following dates have been identified as dates on which requests for this reason were either partially or fully denied: a) On 7 November 2022 the claimant requested, via email, to work from home the following day and the next few days, on the basis that her migraine was rising. The respondent acknowledges that she was told that there was insufficient work for her to do from home the following day, so her request was not granted. b) On 28 February 2023 the claimant requested, via email, to work from home the following day as she was experiencing an onset of pain. The respondent acknowledges that the request was initially refused on the basis that there was a need for the claimant to attend the office, however, the claimant did then work from home the following day. c) On 19 September 2023 the claimant requested to work from home the following day, and advised via WhatsApp message that she would feel safer if she could work from home on 20 September was agreed, but the claimant attended the office on the following days of the week. Discrimination Arising from Disability The respondent accepts that the claimant was issued with attendance warnings on 18 January and 9 October 2023 (the second attendance warning was rescinded on appeal, as of 10 April 2024). The attendance warnings were issued in respect of sickness absences which, according to the respondent’s records were recorded as follows: 08.04.22 – migraine 14.06.22 – migraine 16.06.22 – 17.06.22 – migraine 23.06.22 – 22.07.22 – genitourinary 08.08.22 – 22.08.22 – genitourinary 08.11.22 – 23.11.22 – genitourinary 29.08.23 – 19.09.23 - genitourinary The respondent accepts that the above absences were, in the main, likely to have arisen in relation to the claimant’s disability, or as a result of treatment which she was undergoing in relation to her disability. The respondent accepts that, in all the circumstances, it would not be able to discharge the burden of proof upon it in respect of the justification defence.” 5. The Claimant was not challenged in her evidence that she had been forced either to take sick leave or to attend the office while she was in a vulnerable, painful and sometimes semi-conscious state. She was also not challenged on her evidence regarding the emotional and physical effects of the treatment. I therefore accepted her evidence on all this and found that, as a result of the discrimination, she experienced: severe and sustained stress, anxiety, and loss of self-worth; bouts of depression, tearfulness, social withdrawal, and a significant reduction in motivation; serious strain on her marriage and relationships with family and friends; stress-induced hair loss, which undermined her confidence and wellbeing; and sleep disturbances and the inability to properly rest or recover during periods of illness due to the burden of having to prepare for formal meetings. 6. The Claimant did not produce any medical evidence to show that she had been diagnosed with a medical condition, or had received any medical treatment, for her low mood. However, the Tribunal accepted that she did feel depressed. 7. The Tribunal accepted, as the Respondent did, that the Claimant would have inevitably felt strain and anxiety due to the threat to her continued employment which the final written warning would have represented. 8. In evidence at the Tribunal, Mr Byfield said, “I apologise for any distress caused to the claimant by the failure to consistently apply the recommended reasonable adjustment or the fact that the claimant had been subjected to attendance management warnings. I regret that the Claimant had this happen to her when it should not have done.” 9. On the agreed facts, it was not the case that the Claimant was always refused working from home after March 2022, but only when working from home could not be accommodated. Mr Byfield gave evidence that the Respondent had misunderstood the advice of Occupational Health and had believed that there was only a requirement to allow the Claimant to work from home when business needs could accommodate this. I accepted his evidence, as this was consistent with how the Respondent, in fact, behaved, in sometimes permitting working from home - and sometimes not.

Relevant Facts

[10]The Claimant gave evidence that, “Her pleas for understanding and reasonable treatment were often met with scepticism, dismissal, or inappropriate comments.” She gave no details of any of these.

[11]Ms Ahuja was cross examined about the warnings given to the Claimant. She explained that they were given in accordance with the Respondent’s policies, when the Claimant hit trigger points. The Respondent’s witnesses were not cross examined about inappropriate comments, scepticism or dismissiveness on their part. I did not find that the Respondent’s managers behaved personally in an insulting manner towards the Claimant.

[12]On the facts, including the fact that the reasonable adjustments were not always denied to the Claimant, I found that the Respondent’s managers believed that they were acting in accordance with the Respondent’s policies and advice when they subjected the Claimant to the discriminatory treatment.

[13]The Claimant was employed at AO grade (Administrative Officer).

[14]The Claimant was interested in applying for 5 jobs, which would have represented a promotion for her, during the currency of the written warnings. She listed these as follows:a. Service Support Assistant (EO Grade) 71716 , in February 2023, Application ID:5158388 – declined no feedback provided;

b. Judicial Assistant in Court of Appeal 72681, April 2023, Application ID:5230326 - declined no feedback provided;

c. EO Listing officer Administrative Court Office Expression of Interest; July 2023 - Line manager denied Endorsement (Neelam Ahuja);

d. Diary Manager, Business Support Officer EO 77678, August 2023;

e. Job Bulletin Board -3 X Expressions of Interest various operational support EO roles, August 2023 - Line manager denied Endorsement (Neelam Ahuja)

[15]Executive Officer (“EC”) roles are one grade above the Claimant’s Administrative Officer role. The Judicial Assistant in the Court of Appeal role was 2 grades above Administrative Officer.

[16]For “Expression of Interest” opportunities, the candidate’s application needs to be endorsed by their line manager. There was a dispute of fact as to whether the Claimant sought endorsement from her line manager for the Expression of Interest roles.

[17]I preferred Ms Ahuja’s evidence that the Claimant did not seek her endorsement for these roles. While the Claimant told the Tribunal that Ms Ahuja does not put matters in writing, so that the Claimant asked her verbally, I considered that the Claimant could easily have put her own request in an email, even if Ms Ahuja herself generally spoke with colleagues, rather than writing to them. The complete absence of any written request by the Claimant for endorsement of her expressions of interest was significant, in my view.

[18]In any event, I found Ms Ahuja’s evidence to be persuasive and compelling. She gave a convincing account of her practice when asked for an endorsement. She explained that this would not simply be a casual exchange in the open plan office, but that Ms Ahuja would consider the employee’s written expression of interest, including whether the examples they had given were in line with the new role, and would suggest other examples they might give, from Ms Ahuja’s knowledge of their work. Ms Ahuja would also discuss with the employee, more generally, whether the role would be suitable for them and whether they had the experience required for the role.

[19]I accepted Ms Ahuja’s repeated insistence that the Claimant had not approached her for an endorsement. I considered that, given her careful approach to endorsements, she would have remembered if the Claimant had asked her.

[20]I rejected the Claimant’s evidence that Ms Ahuja had told the Claimant that she was not prepared to endorse her expression of interest due to the Claimant’s attendance being poor.

[21]The Claimant contended that she had applied for the above jobs, but had been rejected because she was subject to live written warnings.

[22]It was not in dispute that an employee applying for a role, or submitting an expression of interest, is required to state if they are subject to live warnings.

[23]However, the Respondent’s policies provide as followsa. Expressions of Interest (EOI) Guidance for Managers, p355- 369 at p364, states: i. (42) Candidates that are subject to live disciplinary or poor performance warnings are required to declare this as part of their EOI applications. The vacancy manager must progress the candidate through the recruitment process as normal. ii. (43) Advice should be sought from HR Casework in these cases, to avoid any unfair treatment.

b. Ministry of Justice Resourcing Policy, p370-417 at p397, provides that: i. a vacancy manager must progress a candidate with a live disciplinary warning through the recruitment process “as normal” (3.71). ii. It states, at (3.73): “Where an application who has recently undergone disciplinary action is a successful applicant in a recruitment campaign, the vacancy manager should come to an evidence-based decision regarding whether to proceed with the offer or not. Decisions should be made on a case by case basis and records of the decision should be stored securely with the rest of the campaign documentation.”

[24]The Claimant told the Tribunal that she knew that this guidance had not been applied in her case. However, there was no evidence to back up her assertion in this regard. There was no supporting evidence that her candidacy for any post had been rejected on the grounds of her written warnings. The Claimant did not give evidence that she was ever told by a member of HR, or selection panel, that she had been rejected because of the written warnings. There was also no written record of this having happened.

[25]The Claimant applied for 2 Team Leader roles in September 2024, after her written warnings were expunged. She was unsuccessful in both applications. The fact that she was also unsuccessful in her applications after the written warnings were removed from her record pointed against the written warnings ever having been a reason for her lack of success in applications.

[26]On the evidence, there was nothing more than the Claimant’s assertion that her applications had been rejected because of the live written warnings. The Respondent’s policies specifically direct that applications must be progressed through the recruitment process as normal, notwithstanding live disciplinary warnings, until offer stage.

[27]On all the evidence, I did not find that the Claimant’s live written warnings were any part of the reason that her job applications, or expressions of interest, were not successful. That was mere assertion by the Claimant, with nothing to support it.

[28]Nevertheless, I accepted that, subjectively, the Claimant believed that the warnings would hamper her career progression.

[29]The Claimant did not bring a harassment or victimisation complaint. Relevant Law Injury to Feelings

Relevant Law

[30]The Tribunal is guided by principles set out in Prison Service v Johnson

[1997] IRLR 162

in relation to assessing injury to feeling awards. Awards for injury to feelings are compensatory. They should be just to both parties, fully compensating the Claimant, (without punishing the Respondent) only for proven, unlawful discrimination for which the Respondent is liable. Awards that are too low would diminish respect for the policy underlying anti-discrimination legislation. However, excessive awards could also have the same effect. Awards need to command public respect. Society has condemned discrimination because of a protected characteristic and awards must ensure that it is seen to be wrong.

[31]Awards should bear some broad general similarity to the range of awards in personal injury cases. Tribunals should remind themselves of the value in everyday life of the sum they have in mind by reference to purchasing power.

[32]It is helpful to consider the band into which the injury falls, Vento v Chief Constable of West Yorkshire Police

[2003] IRLR 102

. In Vento the Court of Appeal said that the top band should be awarded in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the grounds of race or sex. The middle band should be use for serious cases which do not merit an award in the highest band and the lower band is appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence.

[33]The Claimant’s claim was presented on 5 January 2024. The relevant Joint Presidential Guidance https://www.judiciary.uk/wp-content/uploads/2023/03/Ventobands-presidential-guidance-April-2023-addendum.pdf. provides, “.In respect of claims presented on or after 6 April 2023, the “Vento bands” shall be as follows: a lower band of £1,100 to £11,200 (less serious cases); a middle band of £11,200 to £33,700 (cases that do not merit an award in the upper band); and an upper band of £33,700 to £56,200 (the most serious cases), with the most exceptional cases capable of exceeding £56,200.” These bands take account of the 10 per cent Simmons v Castle uplift. Aggravated Damages

[34]Aggravated damages are available for an act of discrimination, Armitage, Marsden and HM Prison Service v Johnson

[1997] IRLR 162

[1997] ICR 275

, EAT.

[35]The award must still be compensatory and not punitive in nature, Commissioner of Police of the Metropolis v Shaw

[2012] IRLR 291

, EAT . In that case, the EAT said that aggravated damages are usually an aspect of injury to feelings. The aggravating factors cause greater hurt, thus increasing damages. The EAT also said that a separate figure for aggravated damages can be given; or it can be wrapped up in one overall figure. The circumstances attracting an award of aggravated damages fall into three categories:(a) The manner in which the wrong was committed. The basic concept here is that the distress caused by an act of discrimination may be made worse by it being done in an exceptionally upsetting way. In this context the phrase “high-handed, malicious, insulting or oppressive” is often referred to – it gives a good general idea of the kind of behaviour which may justify an award, but should not be treated as an exhaustive definition. An award can be made in the case of any exceptional or contumelious conduct which has the effect of seriously increasing the claimant's distress.

(b) Motive. Discriminatory conduct which is evidently based on prejudice or animosity or which is spiteful or vindictive or intended to wound is, as a matter of common sense and common experience, likely to cause more distress than the same acts would cause if evidently done without such a motive – say, as a result of ignorance or insensitivity. That will, however, only of course be the case if the claimant is aware of the motive in question: otherwise it could not be effective to aggravate the injury. There is thus in practice a considerable overlap with (a).

[36]In HM Land Registry v McGlue

UKEAT/0435/11

, [2013] EqLR 701, EAT. The EAT said that aggravated damages 'have a proper place and role to fill', but that a tribunal should also 'be aware and be cautious not to award under the heading “injury to feelings” damages for the self-same conduct as it then compensates under the heading of “aggravated damages”'. Discussion and Decision Injury to Feelings

[37]The Tribunal accepted that the Claimant had suffered significant injury to feelings as a result of the failures to make reasonable adjustments and the imposition of the warnings upon her and that the injury to her feelings persisted over an extended period of time.

[38]The Claimant was told in March 2022 that she was required to be in the office 5 days a week. Reasonable adjustments were then denied on 7 November 2022, 28 February 2023, a date in June 2023 and 19 September 2023. The written warnings were in place throughout the period 18 January 2023 to 10 April 2023, with the final written warning being in place from 9 October 2023 10 April 2024.

[39]In total, the discriminatory acts took place over a period from 7 November 2022 to 10 April 2024 – some 17 months.

[40]During that period, the Claimant suffered severe and sustained stress, anxiety, and loss of self-worth; periods of feeling depressed, tearfulness, social withdrawal, and a significant reduction in motivation; serious strain on her marriage and relationships with family and friends; stress-induced hair loss, which undermined her confidence and wellbeing; sleep disturbances and the inability to properly rest or recover during periods of illness due to the burden of having to prepare for formal meetings. She also inevitably felt anxious due to the threat to her continued employment which the final written warning would have represented during some of that period. She also came into the office when she was feeling unwell.

[41]Regarding aggravated damages, the Claimant contended that these were appropriate because the Respondent had acted in a high handed manner. I did not make findings that it did, nor that any of her managers were insulting towards her. I found that the Respondent’s managers believed that they were acting in accordance with the Respondent’s policies and advice when they subjected the Claimant to the discriminatory treatment.

[42]I noted that the Respondent had conceded liability and that Mr Byfield had apologised to the Claimant in the course of these proceedings.

[43]I concluded that aggravated damages were not appropriate. None of the grounds for awarding aggravated damages were made out. The Respondent did not act in a “highhanded, malicious, insulting or oppressive” way. The discriminatory conduct arose from misunderstanding policies and advice, and not from prejudice, animosity or vindictiveness. In its subsequent conduct, the Respondent acted responsibly during these proceedings, conceding liability and apologising to the Claimant.

[44]Nevertheless, a significant injury to feelings award was appropriate. I took into account that the discriminatory acts took place over the period of about 17 months. I took into account that the Claimant suffered significant injury to feelings throughout this lengthy period, including tearfulness, anxiety, disturbed sleep and damage to her relationships with family and friends. She had the added significant anxiety of a threat to her employment. The Claimant believed that her career was under threat, both in terms of a barrier to any advancement and in terms of actually losing her job. She came into the office when she was feeling very unwell.

[45]The parties agreed that an award in the Middle Band of Vento was appropriate. I agreed with their assessment. This was clearly not a lower band case, as it involved a number of discriminatory acts over a sustained period, with significant injury to feelings throughout. Nor was it a higher band case – the Claimant continued to work and remains employed by the Respondent. She has not, in fact suffered any damage to her career.

[46]On all the facts, I considered that an award well into the middle band of Vento was appropriate, because of the length of the period of injury to feelings and the severity of them. It was not at the top of the Middle Band, however, as it was not near a Higher Band case.

[47]At the relevant dates, the middle band was between £11,200 and £33,700.

[48]I decided that the appropriate award for injury to feelings in the case was £24,000. No Economic Loss

[49]I found that the Claimant’s manager did not refuse to endorse her Expressions of Interest and I also found that the live warnings were not any part of the reason that her job applications, or expressions of interest, were unsuccessful. The discriminatory treatment therefore did not result in any loss of earnings. Interest

[50]The parties agreed that interest should be awarded from the date of the first act of discrimination. That was the failure to make a reasonable adjustment on 7 November 2022.

[51]There were 365 + 365 + 233 = 963 days between that date and the last day of the remedy hearing.

[52]The calculation was as follows:

[53]Injury to feelings: 0.08 x £24,000 x 963/365 = £5,065.64.

[54]The total injury to feelings award, including interest, is therefore £29,065.64.