Ms C Ramos Alvarez v The Royal Borough of Kensington and Chelsea: 2201145/2015
JUDGMENT
[1]The Tribunal orders that the Claimant is to be reinstated to her role of Legal Secretary (Scale 6) in the Respondent’s tri-borough shared Legal Services by 28 July 2017.[2]The Respondent is to pay to the Claimant a lump sum to reflect the wages that she would have received as a Scale 6 Legal Secretary between 10 December 2014 and 28 July 2017 less the redundancy payment made to the Claimant. If the parties cannot agree the amount, the Tribunal will determine the amount to be paid.[3]The Respondent is to restore all the Claimant’s pension rights and seniority by taking the necessary steps to ensure that that her service is preserved for the period between 10 December 2014 and 28 July 2017 and by making any payments that need to be made into the pension fund for that purpose.REASONS
[1]In a claim form presented on 2 April 2015 the Claimant complained of unfair dismissal and race and disability discrimination.[2]At a preliminary hearing on 29 July 2015 the case was listed for a preliminary hearing on 18 and 19 November 2015 to determine whether the Claimant was disabled and whether it was just and equitable to consider a large number of her race and disability discrimination complaints which had not been presented within the prescribed time limit. That hearing had to be adjourned, mainly because the Claimant had not complied with the orders made at the hearing on 29 July 2015.[3]At a preliminary hearing on 3 December 2015 further orders were made for the Claimant to comply with the original orders and it was made clear that failure to do so would lead to her discrimination claims being struck out. On 22 January 2016 the Claimant clarified that the only complaints of discrimination being pursued were of direct disability discrimination, discrimination arising from disability and disabilityrelated harassment. At that stage the Claimant abandoned all complaints of race discrimination, indirect disability discrimination and victimisation.[4]At a preliminary hearing on 29 February 2016 the Claimant clarified that the only complaints that she was pursuing were the complaints of unfair dismissal and discrimination arising from disability in connection with her dismissal. The case was listed for a hearing (five days) starting on 16 May 2016. That hearing was adjourned at the request of both parties.[5]A further preliminary hearing took place on 21 October 2016. At that hearing the Respondent was permitted to withdraw the concession that it had made in January 2016 about the Claimant’s disability. The reason for the withdrawal was that a recent report from a jointly instructed expert had cast doubt on whether the Claimant had been disabled at the material time. The Respondent also applied for a deposit order in respect of the disability discrimination claim. The order was made. The case was listed for a hearing to start on 24 April 2017.[6]On 10 November 2016 the Claimant withdrew the disability discrimination claim. That only left the unfair dismissal claim before the Tribunal.[7]On 29 November 2016 the Respondent conceded that the Claimant had been unfairly dismissed and asked the Tribunal to list the case for a remedy hearing. The remedy hearing was ultimately listed for 9 and 10 March.The issues
[8]The Respondent conceded before me that the Claimant should be awarded the maximum compensation for unfair dismissal, which it said was £26,508. The Claimant did not dispute that figure. The Claimant sought an order for reinstatement or, in the alternative, re-engagement. The Respondent argued that it was not practicable for it to comply with an order for either reinstatement or re-engagement. The sole issue that I had to determine was whether it was practicable for the Respondent to comply with either of those orders.The Law
[9]Section 116 of the Employment Rights Act 1996 (“ERA 1996”) provides that in exercising its discretion as to whether the to make an order for reinstatement or reengagement, the Tribunal should first consider whether to make an order for reinstatement. In considering whether to make either order, it should take into account, among other things, whether it is practicable for the employer to comply with the order in question. Section 116(5) ERA 1996 provides, “Where in any case an employer has engaged a permanent replacement for the dismissed employee, the tribunal shall not take that fact into account in determining … whether it is practicable to comply with an order for reinstatement or re-engagement.” However, section 116(5) does not apply where the employer shows that it was not practicable for him to arrange for the dismissed employee’s work to done without engaging a permanent replacement (116(6)(a) ERA 1996).[10]Section 114(1) ERA 1996 provides, “An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed”. The effect of an order for reinstatement is to put the employee back in the role that he or she had before dismissal. Section 115(1) ERA 1996 provides, “An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that form which he was dismissed or other suitable employment.” On making an order for re-engagement the Tribunal must specify the terms on which re-engagement is to take place, including among other things, the nature of the employment (section 115(2)(b)).[11]In Lincolnshire County Council v Lupton (EAT/0328/15) Simler J in the EAT stated at paragraph 18, “ “Practicable” in this context means more than merely possible but “capable of being carried into effect with success” (see Coleman and Anor v Magnet Joinery Ltd [1975] ICR 46 at page 52). Re-engagement is not to be used as a means of imposing a duty to search for and find a generally suitable place within the ranks for dismissed employee irrespective of actual vacancies. That, as the Council, contends puts the duty too high. An employer does not necessarily have a duty to create space for a dismissed employee to be re-engaged. The question at the end of the day is one of fact and degree by reference to what is capable of being carried into effect with success.” In considering the meaning of practicable Neill LJ in Port of London Authority v Payne [1994] IRLR 9 expressed it as follows – “The standard must not be set too high. The employer cannot be expected to explore every possible avenue which ingenuity might suggest. The employer does not have to show that reinstatement or re-engagement is impossible. It is a matter of what is practicable in the circumstances of the employer’s business at the relevant time.”[12]The courts have held that tribunals would be justified in refusing to order reemployment in the following circumstances – If the employee distrusts or lacks confidence in the employer, for example, because he/she believes that there has been a long-standing conspiracy against him/her by her employers; such an employee is unlikely to be a satisfactory employee if he/she were to be re-employed (Nothman v London Borough of Barnet [1980] IRLR 65. If the manner in which a dismissed employee has pursued his/her successful complaint of unfair dismissal has so soured his relationship with those with whom he/she would have to work that reinstatement or reengagement is impracticable, even though the damage done might have been the inevitable result of fighting his/her case (Oasis Community Learning v Wolff EAT/0364/12).[13]The requirement to identify the nature of the employment under section 115(2) ERA 1996 is mandatory and the failure to identify it with any degree of detail and precision is an error of law – Lincolnshire County Council v Lupton.The Evidence
[14]The Claimant gave evidence in support of her claim. Joyce Golder (Principal Solicitor for Litigation) and Leverne Parker (Chief Solicitor and Monitoring Officer) gave evidence on behalf of the Respondent. Having considered all the oral and documentary evidence the Tribunal makes the following findings of fact.Findings of Fact
[15]The Claimant commenced employment with the Respondent on 23 August 2003 as a legal secretary in its Legal Services Department. She worked in the Litigation section. Joyce Golder was appointed Principal Solicitor for Litigation in March 2010.[16]On 7 July 2010 Ms Golder gave the Claimant an informal verbal warning (which was not recorded as a formal warning or on her personnel file) for speaking loudly about Toro (a colleague with whom the Claimant was annoyed because she had not answered her telephone while she was not at her desk) to two other colleagues. Ms Golder said that if she had concerns about any of her colleagues they should be raised with her or another manager. Ms Golder also said that she had had heard that the Claimant had made disrespectful comments about colleagues and managers on the telephone and in the hallway where they could be heard by others. She told the Claimant that that kind of conduct had to stop. She praised the Claimant’s professionalism as a secretary and her excellent work. The verbal warning was recorded in an email to the Claimant.[17]On 22 November 2010 Louise Edwards, an Executive Officer in the Business Support section in the Legal Services Department, complained to Joyce Golder about an email which the Claimant had sent to Leela and which Ms Edwards had read because she was working at Leela’s computer when the email arrived. She said that the Claimant had made disparaging comments about her and had questioned her professionalism and the reason for her employment. She said that she had found the comments to be highly offensive and distressing.[18]Ms Golder discussed the matter with the Claimant on 1 December 2010. The Claimant said that the email had not been intended for public distribution and that it was not right for Louise to have gone into Leela’s inbox and read an email that was addressed to Leela. Ms Golder told the Claimant that she had not been right to use to the Council’s email facilities to distribute derogatory comments about another. She gave the Claimant another informal verbal warning which would sit on a file which she held. This was also recorded in an email to the Claimant.[19]On 1 March 2011 the Claimant made a formal complaint against Louise Edwards in respect of the same matter. She said that under the Respondent’s email usage policy only a manager was entitled to read other employees’ emails, and that as Louise was not a manager she did not have the right to read Leela’s email. The Claimant said that Joyce Golder had been wrong to give her a verbal warning, and asked for her verbal warning to be removed from her file and for Louise to offer her a written apology. She also gave examples of other occasions when she said that Louise Edwards had not been helpful.[20]On 4 March 2011 Leverne Parker, Chief Solicitor, advised the Claimant that there was no power for her to review the informal verbal warning given by Ms Golder and it would, therefore, remain. She passed the Claimant’s complaint against Louise Edwards to Don Pitts, Ms Edwards’ line manager, to investigate.[21]Mr Pitts spoke to Louise Edwards about the complaint. She said that Leela had left her inbox open and she had seen the email when it arrived. The subject heading referred to the IT problem that she was investigating and she opened it because she believed that it related to that. Mr Pitts dealt with the matter informally by reminding Ms Edwards and others in the team to be mindful of their responsibilities when working on their colleagues’ PCs.[22]On 24 March 2011 Mr Pitts informed Leverne Parker of how he had dealt with the Claimant’s complaint. He also said that the Claimant had used her complaint to make a number of unconnected and disparaging remarks about Business Support in general and Louise Edwards in particular and that he found her comments to be offensive and unacceptable. He copied his email to her to Joyce Golder so that she could take appropriate action.[23]On 25 March Mr Pitts sent the Claimant his response to her complaint and informed her how he had dealt with it.[24]On 5 July 2011 the Claimant complained in writing to Leverne Parker about Don Pitts. The essence of her complaint was that Business Support did not carry out tasks that were its responsibility and she had to carry them out and that the additional work and pressure had a negative impact upon her health. Mr Pitts’ reaction on seeing the complaint was that it was unwarranted, without merit and highly offensive. He did not think that anything short of formal disciplinary action would have any effect on the Claimant’s behavior. On 27 July 2011 Ms Parker responded to the Claimant’s complaint. She concluded that the tasks about which the Claimant was complaining were those which legal secretaries could reasonably be expected to do. She apologised for the fact that the Claimant had felt that she was put under unacceptable stress on one particular day, but concluded that Mr Pitts was not to blame for that. She continued that since then the Respondent had received a report from Occupational Health that the Claimant’s stress levels increased when she was under pressure. She had, therefore, given managers in the Litigation team an instruction that the Claimant should not be asked to make any more deliveries.[25]On 28 November 2011 Rea Holbrook, an office junior, in the Business Support team complained to Louise Edwards (her manager) about the Claimant “huffing and puffing” and “muttering under her breath” when she told the Claimant that she could not go to the Post Room to check something out. Ms Edwards and Mr Pitts brought the matter to the attention of Joyce Golder. Joyce Golder spoke to the Claimant about it on 30 November. The Claimant disagreed with the account given by Ms Holbrook and felt that the incident was just another example of Business Support staff not supporting her. At the meeting the Claimant raised her voice and was clearly upset. She accused Ms Golder of twisting her words and said that she had had a conversation with other lawyers at her level about how Ms Golder twisted words. Ms Golder told her that if she had any complaint about her she should raise the matter with Leverne Parker. The Claimant rolled her eyes and said “ha” and explained that she had an issue with her as well.[26]Ms Golder discussed the matter with Mr Pitts in early January 2012 and considered dealing with it by way of another informal verbal warning. Mr Pitts’ view was that that was not appropriate as it had been tried in in the past but the Claimant’s unpleasant and offensive behavior had continued.[27]On 23 January 2012 Ms Golder invited the Claimant to a disciplinary hearing on 31 January to answer two allegations of misconduct. The first was that her behavior to a colleague on 28 November had been offensive and upsetting to a colleague. The second was that on 30 November she had been unprofessional and offensive about the Business Support team, insubordinate and offensive toward her and Leverne Parker.[28]The disciplinary hearing took place on 31 January 2012 and Ms Parker was the disciplining officer. The outcome was communicated to the Claimant on 6 February 2012. Ms Parker found the allegations to be proven and concluded that they were part of a pattern of continuing behavior about which the Claimant had been warned in the past. She issued the Claimant with a written warning which was to be placed on her file for 12 months.[29]The Claimant appealed against the written warning. The appeal was heard by Michael Coghler, Director of Legal Services, and the decision, conveyed to the Claimant on 19 March 2012, was to uphold the written warning. Mr Coghler’s conclusion was that the Claimant’s right to hold and express views did not extend to rudeness and insubordination in the workplace and that such behavior infringed the rights of other employees whom the Respondent had a duty to protect. He urged the Claimant to moderate her behavior and warned her that repetition of that behavior would put her at risk of further disciplinary action.[30]In July 2012 Louise Edwards and the Claimant exchanged emails in order to arrange a meeting to discuss the Claimant’s Occupational Health report. In an email on 25 July Ms Edwards told the Claimant that she found the tone of her last email to be discourteous, rude and uncivil and said that if she did not conduct herself in a courteous and professional manner she would consider further disciplinary action against her. The Claimant responded that she considered Ms Edwards’ email to be “bullying and harassment” and asked her to refrain from harassing her any more. On 8 August Don Pitt wrote to the Claimant that he needed to investigate her allegations of bullying and harassment and asked her to confirm whether they related solely to Ms Edwards’ email or she was saying that the email was symptomatic of a wider pattern of bullying and harassment by Ms Edwards.[31]The Claimant responded to that email on 12 September by sending Mr Pitts a written complaint against Louise Edwards. In that document she complained of Ms Edwards having been appointed to manage secretaries when she did not have the experience to do so, not arranging a meeting to discuss her Occupational Health report until some five weeks after she had received the report, threatening, in an email copied to Ms Parker and Mr Pitts, to consider further disciplinary action against her and calling her discourteous, rude and uncivil. She felt that the last matter was insulting and that the threat of disciplinary action amounted to bullying and harassment. She also complained of having been treated less favourably than Ms Edwards in respect of the email which the Claimant had sent to Leela in November 2010 and which Ms Edwards had read.[32]Mr Pitts met with the Claimant on 4 October to discuss her complaint. He sent her his decision on 9 October 2012. He concluded that Ms Edwards’ email of 25 July and her conduct in general towards the Claimant did not amount to bullying and harassment, the Claimant’s email had been rude, discourteous and uncivil and that the Claimant had not been the victim of race discrimination in respect of the way she and Ms Edwards were dealt with in relation to the emails she sent in November 2010.[33]On 23 November 2012 Mr Pitts invited the Claimant to a disciplinary hearing on 5 December to answer allegations of misconduct, namely that she had made unjustified and unsubstantiated allegations of bullying, harassment, discrimination, and personal injury against Louise Edwards and of discrimination against Leverne Parker. Mr Pitts conducted the disciplinary hearing and conveyed his decision in a letter dated 7 December 2012. He concluded that the allegations had been made out and gave the Claimant a further written warning that was to remain on her file for twelve months.[34]On 28 February 2013 the Claimant requested a change in her working hours. In her application she said that her health had deteriorated considerably over the previous two years because of the bullying, harassment and racial discrimination to which she had been subjected. She gave as examples of this the fact that she had been given an informal verbal warning in December 2010 and a written warning in January 2012. Mr Pitts responded to that by saying that he was disappointed that she had repeated allegations that she had been subjected to bullying, harassment and discrimination at work. He said that those allegations had been investigated and found to be unjustified in every respect. He warned her that repeating them amounted to insubordination.[35]In April 2013 some of the Respondent’s Services, including Legal Services, merged with those of the London Borough of Hammersmith and Fulham. In January 2014 a reorganisation of the Bi-Borough Legal Services took place, as a result of which the number of Legal Secretaries was reduced from eight to three. There was a competitive selection process for the three posts. It consisted of the candidates supplying a supporting statement, which accounted for 15% of the overall marks, and a panel interview, which accounted for the remaining 85% of the marks.[36]Ultimately, six Legal Secretaries (three from the Respondent and three from Hammersmith and Fulham) were interested in the three posts available and they were interviewed on 31 March and 1 April 2014. The Claimant was one of them. The interview panel comprised Don Pitts, Janet Mullins (Principal Solicitor) and Jacque Jellow (HR Consultant). Each member of the panel individually scored all the candidates on their personal statement and their interview. The Claimant received the fourth highest score and was, therefore, not selected.[37]The candidates were informed verbally of the outcome of the selection process on 11 April and in writing on 17 April. The letters to those who had not been successful (including the Claimant) confirmed their redundancy and gave them notice of the termination of their employment. The Claimant was advised of her right to appeal against her selection for redundancy within two weeks. At the same time the Respondent confirmed to those who had been successful that they had not been selected for redundancy and that their services would be retained. They were Sheila Leathes, Jacqueline Hutchings and Sallie Langley. Ms Leathes was employed by the Respondent while the other two were Hammersmith and Fulham employees. On the same day Mr Pitts informed everybody in Legal Services of the new structure and where the three secretaries being retained were to be placed in that structure. Ms Hutchings was placed in the Regeneration team and Ms Leathes and Ms Langley were placed in the Social care and Litigation team. There was a fourth Legal Secretary, Geraldine James, who was TUPE transferred to Hammersmith and Fulham from an external firm of solicitors. She was also placed in the Social Care and Litigation team.[38]On 30 April 2014 the Claimant appealed against her selection for redundancy.[39]On closer inspection of the selection process, Jonathan Bore (who had been appointed to hear the Claimant’s appeal) realised that an error had been made in the calculations. The error was that all the panel members had multiplied their scores for the supporting statement by 15% and their scores for the interview by 85%. The total achievable for the interview was 30 and for the personal statement 15. It was felt that the correct approach would have been to determine 85% and 15% of 45 (the total score available). That came to 38.25 and 6.75 respectively. Then the candidate’s score for the interview should have been divided by 30 and multiplied by 38.5 and the score for the statement should have been divided by 15 and multiplied by 6.75. The result of applying the correct calculation was that the Claimant received the third highest score and Sallie Langley, who was previously third, moved into the fourth position. It did not result in any other changes in the ranking of the candidates. The result was that the Claimant should have been retained and Sallie Langley should have been selected for redundancy.[40]On 6 June 2014 (before the Claimant’s appeal was heard) Tasnim Shawkat, Bi-Borough Director of Law, wrote to the Claimant about the calculation error and the result of the recalculation. She said that it was “a most unfortunate situation” as Ms Langley had already been confirmed in post. She agreed with Jonathan Bore that it had been an innocent error of calculation applied by all the panel members to all the candidates and that there had not been any discrimination of any kind. She said that she felt that the fairest approach going forward would be for the Claimant and Ms Langley to be interviewed again and scored again by a different panel.[41]The Claimant, quite understandably, objected to the course being proposed by Ms Shawkat. Her view was that as it had been established that she had received the third highest score she should be retained and should not have to submit to a further selection process. She also made the point that no final decision should have been made until appeal process had been exhausted or, at the very least, the time limit for appealing had expired.[42]The Claimant’s appeal was heard on 18 August 2014. At the appeal hearing Mr Bore asked Ms Shawkat several times whether if the calculation had been done properly the Claimant would have been appointed. Ms Shawkat was not prepared to accept that and kept saying that she could not answer that. It appeared obvious to Mr Bore that if the Claimant had been correctly scored she would have been retained and not selected for redundancy. The Claimant was understandably shocked by Ms Shawkat’s response.[43]Mr Bore upheld the Claimant’s appeal on 19 August 2014. He noted that it was common ground that the Claimant would have been third in the ranking if the correct weighting had been applied and he could see no reason as to why she would not have been appointed in those circumstances. It was clear to him that she had wrongly been served with a redundancy notice. The appointment of Ms Langley was a management decision taken prior to the outcome of the appeal and, although there were understandable reasons for it (keeping delay and uncertainty to a minimum), it carried the risk that an appeal might bring to light a mistake. He concluded that the approach taken to resolve matters, the invitation to a second interview, was not appropriate for two reasons: firstly, because the Claimant ought to have been appointed as a result of the first selection process and should not have needed to go through an interview again; secondly, because there was a strong possibility that the new panel’s selection process would have been tainted by knowledge of the circumstances, carrying the perception of inherent bias regardless of the composition of the panel.[44]On 24 September 2014, in spite of the Claimant’s appeal having been upheld, Ms Shawkat confirmed her redundancy and gave her notice that her employment would terminate 3 December 2014. Notwithstanding Mr Bore’s conclusions about the inappropriateness of a second interview, she said that she believed that it was the most appropriate and fair course of action in difficult circumstances. She also said that as the Claimant had already appealed against the decision to select her for redundancy, a further appeal was not available to her.[45]The Claimant’s employment terminated on 10 December 2014. She was 56 years old at the time.[46]Prior to the Claimant’s dismissal approval was given to merge the Bi-Borough Legal Services with Westminster Legal Services to create a new Tri-Borough shared service. The merger took place after the Claimant’s dismissal. Although the three boroughs operate a shared legal services function, each of the three boroughs operates with a degree of autonomy, particularly in respect of staff employment and recruitment.[47]Having gone through Early Conciliation, the Claimant presented her claim to this Tribunal on 2 April 2015. In that claim the Claimant complained that her dismissal was unfair, an act of direct race and/or disability discrimination or unfavourable treatment because of something arising in consequence of her disability. She described herself as being of Spanish race and nationality and ethnicity and said that she was disabled by reason of depression and anxiety, diabetes and hypertension. She also complained of race and disability discrimination in respect of Joyce Golder’s handling of the incident in July 2010, the Respondent threatening her with or subjecting her to disciplinary action on 31 January 2012, 6 February 2012, 25 July 2012, 5 December 2012, and 5 March 2013, Mr Pitts incorrectly scoring her in the redundancy selection process, Sally Langley being appointed in preference to her on 1 May 2014 and Don Pitts describing her conduct as “unpleasant and offensive” and encouraging his superior to take formal disciplinary action against her on 22 November 2010, 24 March 2011 and 10 January 2012. She also complained of victimisation.[48]By the end of February 2016 the Claimant had withdrawn all her claims other than that her dismissal was unfair and unfavourable treatment arising from something in consequence of her disability. In March 2016 the Respondent conceded that the Claimant was disabled in April 2012 and July 2015 by reason of severe anxietydepressive disorder.[49]The parties jointly instructed Dr Horsford, a Consultant Psychologist, to prepare an expert psychological assessment report on the Claimant. He was asked to give his opinion on whether she was suffering from any recognised medical illness and, if she was, when it started, the impact that it had upon her behavior and her normal day to day activities, how long the condition persisted, whether it was constant in its severity and whether the Claimant’s behavior, of which the Respondent had complained, arose in consequence of her medical condition. He was provided with the Claimant’s medical records, which included two reports (dated April 2012 and August 2015) from Dr Cabaeiro Febeiro, an expert in Neurology and Psychiatry in Spain who had diagnosed the Claimant as suffering from severe mixed anxietydepressive disorder. He was also provided with her impact statement. Dr Horsford carried out two clinical interviews with the Claimant in July 2016 lasting a total of about eight hours and used a variety of scales to evaluate her reported symptoms and her scores on various tests.[50]Dr Horsford produced his report on 17 August 2016. He concluded that the Claimant was likely to have experienced a mild depressive illness with anxious features (or anxiety and mixed depressive disorder, as it was called previously) from about February to June 2012. That was a single incident which would have been resolved within 12 to 15 weeks. The clinical interviews and the medical documents supported the conclusion that the Claimant had exaggerated or fabricated her condition of anxiety and mixed depressive disorder during the period July 2012 to 10 December 2014. It was improbable that her conduct during that period could be explained by anxiety and mixed depressive disorder. During the period when she had such a condition, it was likely to have had a minimal impact.[51]At a preliminary hearing on 21 October 2016 a deposit order was made in respect of the claim of discrimination arising from something in consequence of a disability. The reasons for making the order were that the Employment Judge considered that the Claimant would have difficulty showing the initial weighting error was related to disability as it applied to all the candidates and not just her, she would have difficulty establishing that she was disabled in light of Dr Horsford’s report and, if she was disabled, she would have to establish that the Respondent had knowledge of it or could reasonably have been expected to have had that knowledge. For all those reasons, the Employment Judge considered that that claim had little reasonable prospect of success. That claim was withdrawn on 10 November 2016.[52]On 23 October 2016 the London Borough of Hammersmith and Fulham advertised a vacancy for a Legal Secretary to work in the Tri-Borough Legal Service was advertised. The vacancy arose as a result of Geraldine James leaving her post. That vacancy has not been filled.[53]The Respondent maintained from 21 May 2015 until 29 November 2016 that the Claimant had been fairly dismissed for redundancy. Only on 29 November 2016, some two years after her dismissal, did the Respondent finally concede that her dismissal was unfair.[54]At the time of the remedy hearing there were four Legal Secretary roles in the Tri-Borough Legal Services department. One of these roles (the one vacated by Geraldine James) was vacant. The other three roles were stilled filled by the persons who were appointed to those roles in April 2014.[55]The Respondent produced a list of its vacancies as at the date of the remedy hearing. None of them was comparable to the Claimant’s old role or suitable for her, and she did not express a desire to be re-engaged into any of those roles.Conclusions
[56]The Respondent argued that neither reinstatement nor re-engagement was practicable because:(a) The Claimant’s old role no longer existed and the Respondent did not have vacancies for any other role that was suitable for the Claimant;(b) The Claimant had destroyed the relationship of trust and confidence that is required between employer and employee by: Making and then withdrawing unjustified allegations of direct race and disability discrimination, harassment and victimisation, relating to matters that occurred as long ago as 2010, against various managers; and Deliberately exaggerating her medical condition in order to mount an unmeritorious claim in disability discrimination.[57]I do not accept that the Claimant’s old role no longer exists. Prior to her dismissal the Claimant was a Legal Secretary in the shared Legal Services function. That role continued to exist after the April 2014 re-organisation and still exists after the merger with a third borough. The number of Legal Secretaries working in the shared Legal Services function has decreased, but the role of Legal Secretary in the shared legal Services continues to exist.[58]I then considered whether it would be practicable for the Respondent to comply with an order to reinstate the Claimant to a Legal Secretary role in the tri-borough shared Legal Services department. I accept that it would generally not be practicable for an employer to reinstate a dismissed employee if the reinstatement would lead to overstaffing or the need to make other employees redundant. However, I do not consider that it would in this case lead to overstaffing or the need to make redundancies. It is clear that the tri-Borough Legal Services department needs four Legal Secretaries. There were four Legal Secretaries working in the shared Legal Services department from April 2014 to October 2016. When Ms James left in October 2016 Hammersmith and Fulham advertised for a Legal Secretary to work in the tri-borough Legal Services department. It would not have done that if there had not been the need for a fourth Legal Secretary in the tri-borough shared Legal Services department. Therefore, reinstating the Claimant to the position of Legal Secretary will not lead to overstaffing in the tri-borough shared Legal Services department. It will not necessitate any redundancies. The employment of the Claimant by the Respondent into that role will obviate the need for Hammersmith and Fulham to recruit another Legal Secretary.[59]Even if I am wrong in that analysis and it does lead to overstaffing and the need to make someone redundant, that would not arise from reinstating the Claimant to a role from which she ought never to have been dismissed, but from the failure of the Respondent and Hammersmith and Fulham to dismiss the employee who ought to have been dismissed as a result of the selection exercise. For all the above reasons, I concluded that the fact that the Respondent was not seeking to recruit a Legal Secretary did not mean that it would not be practicable for it to comply with an order for reinstatement.[60]I then considered whether it would not be practicable for the Respondent to comply with an order for reinstatement because of the Claimant’s conduct in the course of this litigation. I accept that in the course of this litigation the Claimant has made allegations of race and disability discrimination against a number of managers, the majority of them against Don Pitts. However, it is significant to note that the Claimant made allegations of bullying, harassment and race discrimination while employed in 2012 and early 2013. It was not suggested by the Respondent that that had led to loss of trust and confidence which made her employment thereafter untenable. She continued to be employed by the Respondent until 10 December 2014, and it was not in dispute that she was a good Legal Secretary. It is also significant that all the complaints of discrimination, bar one relating to the Claimant’s dismissal, were withdrawn in January and February 2016, several months before the hearing that was initially scheduled to start in May 2016. The claims were withdrawn before witness statements were exchanged. The allegations of discrimination were not pursued in witness statements or at protracted hearing in the Tribunal. In those circumstances, it appears to me that the damage done to the employment relationship by the Claimant bringing those claims must be limited.[61]It was also submitted that the Claimant had failed to accept that there had been a genuine mistake in the scoring in the selection exercise and that she had impugned the integrity of Mr Pitts and Tasnim Shawkat. The Claimant had had a difficult relationship with Mr Pitts and, in those circumstances, it was not entirely surprising that she was suspicious as to whether the miscalculation had been a genuine error on his part. That suspicion was then compounded by the Respondent’s conduct once it acknowledged that the scores were incorrect. The Claimant had reason to question Ms Shawkat’s conduct – she was unwilling to admit at the appeal hearing that had the Claimant been correctly scored she would have been retained, she insisted that a second interview would have been the most appropriate way to deal with the matter even though Mr Bore, who heard the appeal, concluded that it was not and she dismissed the Claimant for redundancy in spite of her appeal against her selection for redundancy having been upheld.[62]Don Pitts and Louise Edwards are no longer employed by the Respondent. Joyce Golder and Leverne Parker were able to work with the Claimant previously after she made allegations of discrimination against them in the course of her employment. It is not uncommon for claimants, both those who are still in employment and those who are no longer in employment, to make allegations of discrimination. That fact in itself is not sufficient to destroy trust and confidence between employer and employee. If it were, no existing employee would dare bring a claim of discrimination for fear that the employer would dismiss him or her thereafter on the grounds that trust and confidence had been destroyed. As the allegations were withdrawn I have not heard all the evidence in respect of them. I cannot say on the basis of the evidence put before me that the allegations were unfounded and unjustified.[63]The Respondent’s conduct in this matter has not helped and might well have given the Claimant cause to think that there might be some ulterior motive for not treating her fairly. Once the mistake had been drawn to its attention, the Respondent did not immediately rectify the matter by retaining the Claimant (which was the only right and fair thing to do) and, if it thought it necessary, dismissing Ms Langley. It ignored the conclusions of the appeal officer. It must have known, when it dismissed the Claimant, that the dismissal was bound to be unfair. It did not concede unfair dismissal until 29 November 2016 – nearly two years after the Claimant’s employment terminated and some 19 months after she presented her claim.[64]I accept that Dr Horsford’s opinion was that the Claimant’s mental illness was less severe and of shorter duration than she had claimed and that she fabricated or exaggerated her condition in her impact statement and in the assessment with him. That opinion, however, does not accord with Dr Cabaleiro Fabeiro’s opinion that the Claimant had severe mixed anxiety-depressive disorder. Dr Horsford’s explanation for that was that Dr Cabaleiro Fabeiro could have mistakenly reached the conclusion which he did. It would, in my view, be unsafe to draw any conclusions about the honesty and trustworthiness of the Claimant from the contradictory medical evidence before the Tribunal.[65]Having considered and taken into account all the above matters I consider that it is practicable for the Respondent to comply with an order for reinstatement. The Claimant wishes to be reinstated and she did not cause or contribute to her dismissal. In all the circumstances of this case, I considered that it would be appropriate to make an order for reinstatement.Conclusions
[1]The Respondent is to pay the Claimant compensation in the sum of £81,355.78 made up as follows – Basic award - £35.80 Additional Award - £25,428.00 Compensatory Award - £55,891.38[2]The Claimant’s application for a preparation time order is refused.[3]The Respondent’s application for costs is refused.[4]The Claimant should be able to recover the £250 fee that she paid for bringing the claim from the government. In the event that she is unable to do so she may apply to the Tribunal for an order that that be paid by the Respondent.Conclusions
[1]This hearing was listed to determine what compensation should be awarded to the Claimant under section 117 of the Employment Rights Acts 1996 (“ERA 1996”) following the Respondent’s failure to comply with the order to reinstate her and costs applications made by both parties. Compensation[2]It was not in dispute that the redundancy payment of £8,032.70 could be offset against any basic award payable to the Claimant. At the hearing I accepted that the redundancy payment had exceeded the basic award and that no basic award was, therefore, payable. Upon looking at it again, it appears to me that that was an error because the Respondent had used the incorrect statutory maximum for a week’s pay. Please see paragraph 3 (below) for the maximum to be applied in the case of awards made under section 117(1) ERA 1996. On the basis that £489 is the correct maximum for a week’s pay, the Claimant is entitled to a basic award of £8,068.50. A basic award of £35.80 is, therefore, payable to the Claimant.[3]The Respondent did not dispute that the Tribunal could award the maximum of fiftytwo weeks’ pay (subject to the statutory maximum) as an additional award under section 117(3)(b) ERA 1996. The maximum set in The Employment Rights (Increase of Limits) Order 2017 applies where “the appropriate date” falls after 6 April 2017. The appropriate date in the case of an award under section 117(1) or (3) ERA 1996 is the date by which the order of reinstatement should have been complied with (article 4(2)(l) of the 2017 Order). The appropriate date in this case is 28 July 2017. The maximum set in the 2017 Order is £489. I made an additional award of £25,428.[4]The Respondent conceded that compensation payable to the Claimant would exceed the maximum amount that the Tribunal could award and that she was entitled to the maximum. I had to determine what that maximum was.[5]Section 124(4) ERA 1996 provides, “Where –(a) a compensatory award is an award under paragraph (a) of subsection (3) of section 117, and(b) an additional award falls to be made under paragraph (b) of that subsection, the limit imposed by this section on the compensatory award may be exceeded to the extent necessary to enable the aggregate of the compensatory and additional awards fully to reflect the amount specified as payable under section 114(2)(a) …”[6]Section 114 ERA 1996 provides, “(1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed. (2) On making an order for reinstatement the tribunal shall specify -(a) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatement,(b) any rights or privileges (including seniority and pension rights) which must be restored to the employee and,(c) the day by which the order must be complied with. (3) If the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date on which he would have done so but for being dismissed. (4) In calculating for the purpose of subsection (2)(a) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer’s liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement by way of - (a) wages in lieu of notice or ex gratia payments paid by the employer, or (b) remuneration paid in respect of employment with another employer and such other benefits as the tribunal thinks appropriate in the circumstances.”[7]At the time that I made the order for reinstatement I did not have the details of what the Claimant would have been paid and of the contributions that would have been made to her pension between 10 December 2014 and 28 July 2017. I, therefore, did not specify the amount that was payable to her under section 114(2)(a) ERA 1996. The order that I made was for the Respondent to pay her a lump sum to reflect the wages that she would have received during that period and to restore her pension rights and seniority by taking steps to ensure that her period of service was preserved for the period between 10 December 2014 and 28 July 2017 and by making any payments that needed to be made into the pension fund for that purpose.[8]The issues that I had to determine were:(a) Whether the Claimant would have increased her working hours to 36 hours per week between December 2014 and July 2017;(b) Whether she would have been promoted during that period;(c) Whether the payments made to the pension fund for restoring her rights would fall within section 114(2)(a) ERA 1996; and(d) Whether, under section 114(4) ERA 1996, the pension payments received by the Claimant should be deducted from the sum payable to her under section 114(2)(a).[9]On 3 August 2012 the Claimant had asked to reduce her working hours from 36 hours a week to 33.5 hours per week. The Claimant suffered from diabetes and hypertension and in 2012 her medication for hypertension had been increased. She was concerned because a friend of hers who was about the same age as her and had also suffered from hypertension had needed a heart operation and had had to retire on health grounds. The Claimant’s request was granted and on her return from annual leave in September 2012 she started working 33.5 hours per week. The situation was reviewed in March 2013 and the Claimant’s request to continue working reduced hours on a permanent basis was granted. The Claimant worked 33.5 hours until her employment terminated in December 2014. She never asked for her hours to be increased. Since the Claimant stopped working there has been no change in her hypertension or the medication that she takes for it. The medication that she takes for diabetes has increased. As there has been no change in the Claimant’s medical condition in the last three years, I consider it extremely unlikely that she would have increased her hours had she continued working for the Respondent between December 2014 and July 2017.[10]There was no evidence that prior to her dismissal the Claimant had been actively pursuing promotion. She accepted in her evidence that it was unlikely that as a legal secretary she would have been promoted in Legal Services. She said that she could have moved to another department and sought promotion. She had worked in the same department for many years and had not sought to move. The three legal secretaries who had been retained when the Claimant was dismissed were still working as legal secretaries in the legal services department. I considered that it was extremely unlikely that the Claimant would have been promoted had she continued in employment between December 2014 and July 2017.[11]Jamie Steere, Payroll Manager, gave evidence about what the Claimant would have been paid and the contributions that would have been made to her pension had she continued in employment between 11 December 2014 and 31 July 2017. His evidence was not challenged and I accepted it. The Claimant would have been paid a gross salary of £68,885.94 during that period. The Respondent would have deducted from that the sum of £4,477.71 to represent her contributions to her pension. It would also have deducted tax and employee National Insurance contributions from that. The net pay that the Claimant would have received during that period would have been £51,702.24. In addition, the Respondent would have paid to the pension fund £10,389.20 as the employer’s pension contribution.[12]The evidence of Maria Bailey, Pensions Manager, was that in order to restore the Claimant’s pension rights both the employer and the employee contributions for that period (i.e. the sum of £14,866.91) would have had to have been paid to the pension fund. She also said that if the Claimant had been reinstated and treated as if she had continued in employment since December 2012 the pension fund would have recuperated from her the lump sum and monthly pension that she had received.[13]The Respondent’s submission was that there were three possible interpretations. These were:(a) All matters relating to pension, including any capital payments to be made by the employer, fell within section 114(2)(b) ERA 1996;(b) The payment of the employer’s pension contributions fell within section 114(2)(a) ERA 1996; or(c) All payments required to restore the Claimant’s pension rights (including the employee contributions) fell within section 114(2)(a) ERA 1996. The Respondent’s submission was that both (a) and (b) above were right and it was prepared to adopt (b), but that (c) was wrong. The argument was that (c) was wrong because section 114(2)(a) talked about any amount that was payable by the employer and the employee’s contributions were not payable by the employer but by the employee.[14]I did at one stage consider that everything relating to restoring pension rights, including the payments to be made, fell within section 114(2)(b) but concluded, on reflection, that that was not correct. What the Tribunal was required to do under section 114(2)(b) was simply to specify which rights and privileges were to be restored. Any payments to be made by the employer in respect of the benefits that the Claimant lost as a result of the dismissal and not being employed between the date of dismissal and reinstatement fell within section 114(2)(a). That included payments to cover pension contributions that had not been made during that period.[15]I then considered whether that applied just to the employer’s pension contributions or both the employer’s and the employee’s pension contributions. Had the Claimant continued in employment, the Respondent would have deducted a total of £4,477.71 from her pay as employee pension contributions, and would have paid that amount into the pension fund. The only purpose of deducting it was to pay it as her contribution to the pension. The Respondent’s calculation of the arrears of pay to be paid under section 114(2)(a) (£51,702.24) is based on that sum having been deducted. If the Respondent’s argument is that it does not have to pay the employee’s contributions to restore her pension rights, then the amount to be paid as arrears of pay should include the sums that have been deducted for her pension contributions. The Respondent cannot deduct that sum unless it is to be used to make the employee pension contributions. I am, therefore, satisfied that it would be correct to include the sum of £4,477.71 in the amount payable by the employer to confer on the Claimant the benefit that she would have had in relation to her pension. It would have been payable by the employer as part of the Claimant’s wages (which she would then have used to made her pension contributions) or as a sum that it had deducted from her wages to make her pension contribution.[16]Between 11 December 2014 and 31 July 2017 the Claimant received as pension a lump sum of £4,722.44 and monthly payments, the net total of which was £11,837.10. In making any award under section 114(2)(a) ERA 1996 I would have considered whether it would be appropriate to take those sums into account in order to reduce the employer’s liability. The Respondent submitted that it should have been deducted from any award under section 114(2)(a) because she only received those payments because she had been dismissed. If her pension rights were reinstated she would receive the lump sum whenever she became entitled to her pension. If they were not deducted the Claimant would end up by getting more than she would have had she not been dismissed. She would get her arrears of pay and the pension payments and get her lump sum twice. I would have accepted that argument had Ms Bailey’s evidence not been that if the Claimant had been reinstated the pension fund would have recouped those sums from the Claimant. On the basis of that evidence, I would not have deducted those sums because the Claimant was not going to retain the money that she had received from that source. If she had to repay the money, she was not going to end up with more than if she had not been dismissed. In light of that, I would not have deducted those sums from the order that I made under section 114(2)(a). 16 If I had had the figures to hand when I made my reinstatement order I would have ordered the Respondent to pay the Claimant the net sum of £66,569.15 (£51,702.44 arrears of pay + £4,477.71 employee’s pension contributions which the Respondent deducted from the Claimant’s pay + £10,389.20 employer’s pension contribution).[17]It was agreed that that figure needed to be grossed up. I have adopted the Respondent’s method of grossing up. The Claimant will receive £21,967.30 as a tax free termination payment (£30,000 less the redundancy payment of £8,032.70) and her personal allowance will be £6,809 (£11,500 less the Claimant’s pension income of £4,691). Therefore, the amount that the Claimant will have to pay tax on would be £39,900.85 (£66.569.15 - £26,668.30). The Claimant will pay 20% tax on £33,500 and 40% tax on £6,400.85. Those two figures grossed up come to £52,543.08 (£41,875 + £10,668.08). I then added to that the tax-fee elements of £21,967.30 and £6,809. That comes to a total of £81,319.98. The aggregate of the additional award and the compensatory award cannot exceed that sum. Costs[18]The Respondent applied for the costs that it incurred between the presentation of the claim on 2 April 2015 and 10 November 2016, the vast majority of which it claimed were incurred in defending the claims of race and disability discrimination, the last of which was withdrawn on 10 November 2016. The total costs incurred in that period were £43,743.24. It applied on the grounds that the discrimination claims had had no reasonable prospect of success and that the Claimant and/or her representative had acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting the discrimination claims.[19]The Claimant applied for a preparation time order in the sum of £6,800 for the 200 hours the Claimant’s lay representative said that he that he spent working on her case. She also applied for a costs order for the fee of £250 she had paid to bring her claim. She applied on the grounds that the Respondent had acted vexatiously, abusively, disruptively or otherwise unreasonably in the way that it had conducted proceedings. She relied in particular on the fact that the Respondent’s defence of the unfair dismissal claim had no reasonable prospect of success and that it had not conceded that the dismissal was unfair until 29 November 2016 and that it had refused to comply with the Tribunal’s order for reinstatement.[20]The procedural history of the proceedings is set out at paragraphs 1 - 7, 47 – 51 and 53 of the remedy decision sent to the parties on 29 June 2017 and I do not intend to repeat it here. It is clear from that that the Claimant had brought a large number of race and disability discrimination claims and that they had necessitated three preliminary hearing in this case. However, with the exception of a single claim of discrimination arising from disability in respect of the dismissal, all the other discrimination claims had been withdrawn by 29 February 2016. The unfair dismissal claim was not conceded until 29 November 2016.[21]I do not accept that the Claimant’s complaints of race and disability discrimination had no reasonable prospect of success. I accept, however, that they had little reasonable prospect of success, not least because all the complaints, except those relating to dismissal were out of time. Unless the Claimant established that her dismissal was an act of race and/or disability discrimination, the Tribunal would not have had jurisdiction to consider the pre-dismissal complaints unless it considered it just and equitable to do so. In light of the time that had lapsed since most of them, it was unlikely to do so. The Claimant was going to have difficulty establishing that her scores in the redundancy exercise (by Mr Pitt or the panel as a whole) were influenced in some way by her race and/or any disability, or that they had deliberately applied the weighting incorrectly to disadvantage her.[22]I concluded that the Claimant did not act unreasonably in bringing those complaints but that she did act unreasonably in not complying with the Tribunal’s orders and by not withdrawing those claims earlier. The Respondent’s solicitors had on a number of occasions in “without prejudice” pointed out to the Claimant the unlikelihood of those claims succeeding and the Claimant’s ultimate withdrawal of them indicates that she recognised that too. The Respondent could have been saved considerable costs had she done so. I do not accept that the Claimant brought what she believed were unmeritorious claim in order to be awarded uncapped compensation.[23]I also concluded that the Respondent acted unreasonably in not conceding that the dismissal was unfair before it did. Its defence of that claim had no reasonable prospect of success. There was no basis for linking the concession of that claim to the Claimant abandoning her discrimination claims. The Claimant might have abandoned her discrimination claims earlier if the Respondent had conceded unfair dismissal earlier. It was not clear to me how much of the preparation time claimed by the Claimant’s lay representative had been spent on preparing the unfair dismissal claim. The concession was made several months before the hearing was listed to take place.[24]In considering whether to make an order against either party I took into account that both parties had acted unreasonably. I also took into account the Claimant’s means. She has no assets or savings. She is living with friends. She has not managed to find work and thinks that she is unlikely to do so because of her age. She is not in receipt of any benefits. Her only income is her pension of £386 per month. She clearly does not have the means to comply with any order for costs. The Respondent submitted that I could take into account the compensation that she will get for the unfair dismissal. She will get about £26,000 compensation if the Respondent’s appeal to the EAT succeeds. She will get substantially more if it does not. I am not prepared to take the figure that I have awarded into account as there is a chance that the Claimant might not receive that. As far as the figure of £26,000 is concerned it barely compensates for her the losses that she has actually suffered as a result of the unfair dismissal. In circumstances where both parties have acted unreasonably and the Claimant has very limited means, I did not consider it appropriate to award costs to either side.