Miss G Raja v Starling Bank and Mr M F Newman: 2203318/2020
EMPLOYMENT TRIBUNALS
Case No 2203318/2020
Between
Miss G RajaClaimantStarling Bank (1) Mr M F Newman (2) RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge DavidsonIn person for claimantMs E Smith (instructed by Solicitor) for respondentDate 5 September 2022
JUDGMENT
[1]By letter dated 27 October 2020, the claimant requested inclusion of her communications with ACAS in the trial bundle. She says this will show that ACAS told her that the respondent’s position was that she was ‘not going to pass her probation and was going to be dismissed’.[2]The respondent’s primary defence to the claimant’s claims is that the claimant was going to be dismissed before she requested a meeting on 9 March 2020 (which turned out to be her dismissal meeting). Her requesting this meeting is the basis of her claims of discrimination, whistleblowing and health and safety.[3]The respondent accepts that the claimant had passed her probation although the respondent’s representative, Ms Smith, who had been in contact with ACAS during the Early Conciliation period, was not aware of this at the time and recalls telling the conciliation officer that she did not know if the claimant had passed probation.[4]I cannot form a view whether the comment was made. The claimant suggests that ACAS told her this and therefore it must be true. However, this does not allow for misunderstandings along the line of communication and that can never be ruled out. 1 of 3[5]The claimant’s complaint of victimisation is based on this comment and, for this reason, she states that it is imperative that document is admitted and the Conciliation Officer is called to give evidence. Of course, by that token if the Conciliation Officer does give evidence and admits to the possibility of a misunderstanding, that would undermine the claimant’s victimisation claim.[6]However, I will consider the application taking the claimant’s case at its highest and assuming such a comment was made. The respondent maintains that it should not be disclosed as it is privileged. All communications with ACAS are made on the express understanding that they cannot be used against the party making them.[7]The claimant accepts the starting principle that communications with ACAS are privileged but contends that this is an exception because she believes the respondent tried to intimidate her into not bringing her claim by telling ACAS a lie. She relies on the ET case of Vernon v London Borough of Hammersmith and Fulham (ET/2200455/10 and 2205480/10) in which a tribunal found that communications between the employer and ACAS could be admitted in evidence. These communications had been expressly authorised by the employer to be disclosed to the employee, and they contained unfounded criticisms of the employee which had not been advanced as part of the defence to the claim. The comments regarding the employee’s performance would have the effect of dissuading her from seeking promotion in future. In that case, unlike this case, the employment was continuing and the effect of the respondent’s comments was designed to impact the ongoing relationship.[8]The Vernon case also found that other communications with ACAS which the employer asked to be confidential from the claimant could not form part of the claimant’s case as they were privileged, and the claimant failed in arguing that those comments showed unambiguous impropriety.[9]The claimant also relies on Ferster v Ferster [2016] EWCA Civ 717 in support of her claim. This case referred to a mediation offer which contained express threats which the court found amounted to blackmail and was therefore within the definition of unambiguous impropriety.[10]Having reviewed the authorities, the test is whether treating the communication as privileged will act as a ‘cloak for perjury, blackmail or another unambiguous impropriety’, bearing in mind that unambiguous impropriety will only be found to be present in the clearest of cases. I find that the alleged comment made to ACAS, even if found to have been said, does not satisfy this test. Even if the claimant could establish that the respondent gave inaccurate information about whether she had passed her probation, this comes nowhere near that level of impropriety. It is open to the respondent to put forward their position which, in this case, was that the claimant’s performance was not good enough. The comment regarding probation does not add much to their primary position which is that the decision had been taken to terminate her employment before any event which could give rise to her disability, health and safety or whistleblowing claims. The claimant knew that she had passed her probation and that the comment was factually inaccurate. In the course of negotiations, she could have made that 2 of 3 point to ACAS, who would have passed it back to the respondent. Even if the comment was made, it was not going to change anything, particularly as the claimant knew it was not true and it was not the main basis on which the respondents were defending the claim.[11]I also note that the conciliation officer does not make adjudications in the conciliation process so, even if the conciliation officer thought this strengthened the respondent’s claim, it made no difference as the conciliation officer’s view on the merits did not affect anything. The claimant is intelligent enough and sophisticated enough to be able to respond to the conciliation officer that, as a matter of fact, she had completed her probation.[12]Parties are encouraged to use the conciliation service provided by ACAS and they do so in the expectation that what they say will not be used against them. Clearly there are communications which will lose that protection if they fall within the ‘unambiguous impropriety’ category but I find that if every comment made to a conciliation officer needs to be fact-checked for fear of it being held against a party when putting their case forward, the efficacy of conciliation will be affected. For that reason, my understanding of the authorities is that the threshold for losing privilege is set high. In my view, this comment does not reach the threshold.[13]The application is refused. . 19 November 202020/11/2020 . 3 of 3[1]The claimant’s claim that she was unfavourably treated by the respondents because of something arising from disability in being dismissed, contrary to Section 15 Equality Act 2010, is upheld.[2]The claimant’s claim that she was unfavourably treated by the respondents because of something arising from disability in the respondents not investigating her allegations of discrimination, contrary to section 15 Equality Act 2010, is not upheld and is dismissed.[3]The claimant’s claim that she was unfairly dismissed contrary to section 100(1)(e) Employment Rights Act 1996 is not upheld and is dismissed.[4]The claimant’s claim that she was subjected to a detriment contrary to section 44(1)(e) of the Employment Rights Act 1996 in the respondents not holding a meeting to discuss her health and safety concerns and instantly dismissing her on 9 March 2020 is upheld.[5]The claimant’s claim that she was victimised contrary to section 27 Equality Act 2010 is not upheld and is dismissed.
REASONS
[1]The issues had been agreed at a case management hearing before Employment Judge Davidson on 19 November 2020. The claimant wished to make some changes to the List of Issues. These did not go outside the ambit of her claim form and Ms Tuck did not suggest the respondent was unable to deal with the issues as amended or prejudiced by them. In those circumstances, we allowed the list of issues to be amended and it was as follows: The claimant’s disability (asthma) and the respondent’s knowledge of that disability were not in issue.[1]Discrimination arising from disability (s 15 EqA)a. Was the claimant treated unfavourably – i.e. dismissed – because of something arising from her disability?b. The claimant says the ‘something’ being: (para 5.1.1 at page 50): “the claimant’s past and turbulent health condition, disability related sickness absence, likely future time off work, her likely need for workplace adjustments such as working from home, social distancing, her likely need to self-isolate; and her propensity to cough over colleagues at work” which arose in consequence of her disability.c. The claimant says the ‘something’ being: (para 3.2 at page 49, A3(b) claim form at page 15) asking for a discussion with the line manager, the second respondent, about her medical condition in response to the first respondent’s email of 06 March 2020, which arose in consequence of her disability.d. The claimant says the ‘something’ being: (A4, A6, B1 and B2(j) claim form at page 15 and 16) her ignored grievance and appeal letter dated 11 March 2020 and 23 March 2020 respectively, sent to the respondent which alleges the protected act, disability discrimination, which arose in consequence of her disability. The unfavourable treatment being the respondent’s failure to act and investigate the allegation of discrimination following dismissal, despite providing appeal rights.[2]Automatically unfair dismissal for taking an appropriate step in a health and safety case (s100(1)(e) ERA 1996)a. Was the reason or principal reason for dismissal that, in circumstances of danger which the claimant reasonably believed to be serious and imminent, she took appropriate steps to protect herself?b. The “step” relied upon (para 7.1, page 51) is “asking for a discussion with the line manager, the second respondent, about her medical condition which she was very concerned about.”[3]Detriment for taking an appropriate step in a health and safety case, (s 44(1)(e) ERA (now s 44 (1A) (b) ERA))a. Was the claimant subjected to a detriment on the ground that, in circumstances of danger which the claimant reasonably believed to be serious and imminent, she took appropriate steps to protect herself?b. The “step” relied upon (para 7.1, page 51) is “asking for a discussion with the line manager, the second respondent, about her medical condition which she was very concerned about.”c. The detriment (at para 7.4.1 and 7.4.2, page 51) is alleged to be the respondents “retaliated against the claimant….by subjecting her to instant dismissal” and “deliberately failed to have a separate meeting with the claimant to specifically discuss her health and safety concerns.”[4]Victimisation (s.27(1)(a) and s.27(2)(d)) EqAa. Was the claimant victimised by the respondents by subjecting the claimant to a detriment because the claimant did a protected act by making an allegation that the respondents have contravened the Equality Act?b. The claimant says the protected act being (at 9.1.1, page 53 and A4, A6, B1 and B2(j) claim form at page 15 and 16): “making an allegation the respondents were in breach of the Equality Act 2010 within her grievance and appeal letter dated 11 and 23 March 2020,” namely disability discrimination.c. The claimant says the detriment being failure to act and investigate the allegation of discrimination following dismissal, despite providing appeal rights, and subjecting her to further unfavourable discriminatory treatment. Findings of fact The hearing 2. We had an electronic hearing bundle of some 1368 pages. Many of these documents were not referred to by the parties as they concerned mitigation. We read the documents we were directed to by the parties. 3. The claimant produced a witness statement and gave evidence on her own behalf. For the respondents we heard from: a) Mr M Newman, chief administrative officer, general counsel and company secretary; b) Ms S Yallop, chief people officer. 4. We also had a witness statement from Ms H Swain, senior people partner, for the respondents. Ms Swain was abroad and unable to give live evidence, as permission from the country she was in could not be obtained in time for the hearing.
The hearing
[5]We agreed a timetable with the parties and they were able to work to that timetable. There were some technical issues but not such as to prevent the hearing being conducted fairly. The parties[6]The first respondent is a bank which has been rapidly growing. At the time of the claimant’s employment, it had about 1000 employees; it now has now nearly 2000. In 2017, it only had 70 people. The second respondent said that the first respondent had not historically had a ‘regimented’ structure because it had grown so rapidly.[7]The second respondent is chief administrative officer, general counsel and company secretary for the first respondent. He is a qualified solicitor and is responsible for all the legal affairs of the first respondent. He has been general counsel since 2015, working closely with Ms A Boden, the CEO. He leads a function which now has about 40 staff.[8]The claimant is a qualified solicitor, having qualified in 2010. Prior to her employment by the first respondent, she most recently worked as deputy company secretary at a building society and had previous posts at banks as a regulatory lawyer. At the time of her appointment, she was studying for ICSA fast track exams to qualify as a company secretary. Policies and procedures[9]We were provided with the first respondent’s company handbook, which included an equal opportunities policy with the following section: DISABILITIES If you are disabled or become disabled, we encourage you to tell us about your condition so that we can consider what reasonable adjustments or support may be appropriate.[10]There was an ill health reporting procedure and a long term absence procedure. Otherwise the performance management process was part of the disciplinary procedure; it appeared from this that performance management would be dealt with in much the same way as misconduct, by a system of warnings.[11]The first respondent also used a system called Small Improvements: this seemed to be for continuous monitoring of performance in relation to staff at a lower level than the claimant. The second respondent did not use this system.[12]There was no bank-wide policy or process for salary increases at material times.[13]We saw no written probation policy. We were told there had been a standard six month probation period. During the claimant’s employment, the period had been reduced to three months. We were told that it had since been increased to six months again. The first respondent’s HR function[14]This was headed by Ms Yallop, who reported to the second respondent. There were dedicated senior people partners for different areas. Ms Swain was the partner for the second respondent’s area of the business. There were a total of about ten HR employees. Policy of recording / file notes:[15]Ms Yallop’s evidence was that file notes were sometimes kept by HR but it was not clear in what circumstances this happened. None were kept by Ms Yallop or Ms Swain of any discussion they had with the second respondent about the claimant’s performance. Evidence about disabled employees[16]The second respondent told the Tribunal that he had made reasonable adjustments for a dyslexic employee and adjustments for an employee with diabetes Chronology[17]In the spring of 2019, the second respondent discussed with Ms Boden and Ms Yallop the need to recruit a deputy company secretary to assist with the company secretarial element of his role. The first respondent was also recruiting for a corporate lawyer at the same time. The second respondent said that the intention was to recruit someone with the potential to take over the company secretary role in full. It was important that candidates had the potential to grow.[18]There were 49 applicants for the role, of whom the respondents interviewed five, including the claimant.[19]On 17 May 2019, the claimant was interviewed by the second respondent. There was a short written exercise and a discussion about the role and the answers to the test.[20]There was an issue between the parties as to whether the second respondent said during the interview that the claimant would have to hire a secretariat assistant.[21]The claimant says that the second respondent informed her that he was planning to grow the company secretariat function and the role would require hiring a secretariat assistant, due to business expansion plans. He asked her if she would be comfortable with hiring an assistant to support with minute taking for executive committees and general secretariat duties. She said that she said she would be happy to support with hiring and training an assistant.[22]The respondents’ case was that the claimant at a later date herself suggested hiring an assistant and they acceded to the request in order to support the claimant’s performance. We return to this issue later but in brief we preferred the claimant’s account which was consistent with the timeline.[23]The claimant said that the second respondent also asked if she would be comfortable supporting behind the scenes rather than being the company secretary as this was his role. She said that he said he was hiring a corporate lawyer to handle corporate transactions and employee share schemes. We accepted that evidence.[24]The second respondent said that he emphasised that he wanted an appointee to ‘grab the role’ and ‘make it their own’. The claimant accepted in cross examination that he had indicated he wanted someone proactive, but said that was true of any such role. We concluded that the second respondent had said something about the appointee grabbing the role and making it their own.[25]The claimant told the Tribunal that the second respondent took detailed notes of her responses. No notes of the interview appeared to have been retained. One of a number of issues the claimant raised about disclosure is the lack of interview notes.[26]There was an internal email dated 3 April 2020 in which Ms Swain told another member of staff, in relation to the claimant’s later Data Subject Access Request: ‘I have reviewed our systems and we have no data on Gulnaz at all other than CV and interview notes which I can provide?’[27]The respondents said that ‘interview notes’ were simply notes on the Workable recruitment system, which we understood to be a type of software the first respondent used.[28]On 30 May 2019, the second respondent sent an email to Ms Boden asking for written approval for the claimant and a corporate lawyer to commence employment.[29]On 31 May 2019, the claimant was offered the role on a salary of £75,000 per annum. Much was made by the respondents of the claimant being highly paid. We note that the salary is not an especially high salary in the banking sector.[30]On 1 July 2019, the claimant commenced employment as deputy company secretary. The second respondent was her line manager and she had a range of duties including minuting a number of executive and board meetings and other secretariat and governance functions.[31]We could see from documents that in August 2019, the recruitment process for an assistant for the claimant commenced. The claimant contacted the first respondent’s recruitment team and interviewed candidates. She decided to appoint Ms M Fox by September 2019. Ms Fox had a three month notice period to work out in her existing role and did not start until December 2019. It was clear to us that the second respondent’s account that the claimant had asked for an assistant later in the autumn and he had agreed to provide her with one to help her out was incorrect. We accepted the claimant’s evidence that there had always been a proposal to recruit an assistant for her and this was discussed during her interview.[32]On 6 August 2019, the claimant passed her corporate secretarial practice exam.[33]On 8 October 2019, the claimant passed her probation. There was no discussion or assessment. She received an email with a letter attached. The email from the second respondent read: Gulnaz See below and attached - well done! Matt[34]The letter read: As you are aware, your employment with Starling Bank is subject to a probationary period. l am pleased to confirm that you have successfully completed your probationary period. … I would like to take this opportunity to congratulate you on your hard work to date and look forward to continuing to work with you in future.[35]The second respondent’s evidence was that at this point he felt the claimant’s performance was satisfactory but that she never extended herself; the example he gave was that board meetings started at 8:30 am. He would be in at 7:45 am checking that the room, communications systems and refreshments were ready. He said that he appreciated not everyone can turn up that early but also said there was a ‘lack of ownership’ by the claimant. He said she would turn up at 8:25 am.[36]The claimant accepted she did not turn up until shortly after 8 am unless there were issues with the underground, in which case she might be a bit later; she said that it was said not possible for her to turn up earlier than that. She said that she would have made sure everything was ready in advance and had total faith in the utilities team. There was no suggestion in evidence that the claimant had been asked to arrive earlier or that she was not working her contracted hours.[37]The second respondent said that the claimant’s performance was acceptable but not dynamic. He said that around this time he began to have doubts about her suitability for the role. She was ‘a very nice lady and seemed positive about her role with the Bank, she did not perform to the level I expected of her and certainly did not seem to be grabbing hold of the role and making it her own.’ He said that he assumed that she was still settling in to a new workplace.[38]There was no probation discussion and no one-to-one meetings. The second respondent said there would be lots of feedback on specific matters and regular discussions but at the time he was not having regular one-to-ones with staff. Nothing was said by the second respondent to the claimant about any concerns about her performance. It was difficult for the Tribunal to accept that there were any significant concerns about the claimant’s performance up to and including the date she passed her probation given the contemporaneous documents and the fact that no issues were raised with the claimant.[39]In November 2019, the second respondent said that he began to really question her suitability for the role and the work involved. He says he was probably quite demanding of his team in terms of the quality of work they turn out and that detail is really important to him.[40]The second respondent accepted there were examples of positive feedback on the claimant’s work, some of which were in writing and in the bundle, but said that these were not for the most complex aspects of the role. He said generally that he was still doing all the strategic work and was disappointed the claimant showed no interest and aptitude for this. He did not however give any clear specifics to the Tribunal about what it was the claimant was failing to do.[41]The claimant said that the second respondent was demanding about people being present and on time and that it was a long hours culture; the second respondent denied that.[42]In his own witness statement the second respondent suggested that it was about this time the claimant asked for an assistant and he authorised her to recruit one to support her, although he did not feel the role was justified.[43]As we have said, we rejected that evidence, which was inconsistent with the contemporaneous documentation.[44]The second respondent gave very positive evidence about Ms Fox. She worked really hard and showed signs of development. He said that the claimant left on time or before almost every evening but Ms Fox worked late every evening and had a great attitude.[45]The claimant said she was not able to stay in the office beyond her contracted hours but would log on and work later in the evening. She gave a couple of examples of very late evenings she worked.[46]It appeared to us from this evidence that employees working long hours in the office was important to the second respondent. There was no good evidence that the claimant was not completing her tasks. It may be that the second respondent was hoping the claimant would build the role in a way which did not happen but in the absence of documented meetings between the claimant and the second respondent, it is difficult for the Tribunal to have a sense of whether the second respondent was conveying to the claimant what his expectations were. It appeared from the claimant’s evidence he was not doing so, and in the absence of any documentary evidence to suggest any substantial feedback, we concluded that he was not.[47]Ms Fox commenced on 9 December 2019. We saw notes of the one-to-ones the claimant carried out with Ms Fox.[48]On 30 December 2019, the claimant received a letter from Ms Boden about her salary increase: I would like to advise that in recognition of your outstanding contribution to Starling, your salary will increase to £76,000 with effect from the 1st of January Please be aware that all decisions affecting salary are made at the Company‘s discretion; this is not to be seen as setting a precedent and no future obligation should be understood from this. Please also be advised that matters relating to salary are confidential in nature and should not be discussed with other employees. Thank you for your hard work to date.[49]The second respondent said that he gave all of his team a pay rise that year and had decided to review all salaries at the same time of year irrespective of when the person joined. He said that the claimant’s increase was the lowest in team (apart from one person set a specific target which that person then met) and significantly less than a pro rated 5%. He said that the reference to ‘outstanding contribution’ was because it was a standard letter used for all employees receiving a salary increase.[50]We did not see any letters for other employees which confirmed that the letter was a standard template. We could not understand why, if the claimant’s performance had genuinely led to her receiving a reduced salary increase, the respondents took no care to convey that in the letter and or to convey to the claimant that there were issues with her performance. Ultimately, we were not able to accept that there were any significant performance concerns by December 2019. For convenience, we set out in a single section later in this Judgment, the chronology of performance concerns asserted by the respondents.[51]In January 2020, the claimant said that Ms Boden told her in conversation ‘you are doing such a good job’. We were given no context for this remark and did not know what it referred to specifically but it seemed to us unlikely the remark would have been made in any context if the claimant’s performance had been felt to be seriously of concern.[52]In late January 2020, Ms Fox had an absence for norovirus. It was suggested to the claimant that the second respondent would have been aware that Ms Fox was off sick because they all worked in an open plan office. It was clear that it was the claimant who was managing the absence and it was not clear to us whether the second respondent would have been aware of Ms Fox’s absence.[53]In February 2020, the claimant passed the ICSA chartered governance qualifying programme and on 24 February 2020, the claimant was admitted as a graduate of the chartered governance institute.[54]In late February – March 2020, the pandemic was developing and government guidance began to be issued. The claimant referred us in particular to guidance that those who were more vulnerable to severe symptoms of Covid because of underlying health conditions.should try to work from home.[55]On 6 March 2020, Ms Fox left the employment of the first respondent. She spoke with Ms Swain. Ms Swain told the second respondent that Ms Fox made reference to her relationship with the claimant. The second respondent said that he asked Ms Fox why she was leaving and she said ‘manager problems’ He asked her “manager me? Or manager Gulnaz?” She replied “Manager Gulnaz.”[56]The second respondent also commented that he felt that the claimant was only concerned with replacing Ms Fox and not about why she left or whether she could be retained. He did not initiate any discussion with the claimant about those matters.[57]The claimant recorded on the Slack system about Ms Fox: Gulnaz Raja [2020-03-03T09:37:462[UTC]] Mon 2 March - MF informed she would like to provide notice to leave. MF felt the organisation was not a fit and she had tried to give this time. She felt the culture had been a bit of a shock for her and difficult to adjust. She also stated matters with the wider legal team were unsustainable and didn't feel comfortable with them. She also stated OJ was negative and sometimes aggressive and never acknowledged. I mentioned it was important to feel happy when coming to work and sometimes an organisation may not be a fit. She felt a larger organisation would be a better fit and had accepted a position with Deloitte Gulnaz Raja [2020-03-03T13:56:01Z[UTC]] people are busy all the time, its boring and dull, no one makes any effort to get dressed up[58]The claimant said that she had had one-to-ones with Ms Fox (and we saw documentary evidence of these) and encouraged her development. Slack messages between the two suggested the relationship was cordial.[59]In Ms Swain’s witness statement, Ms Swain said that Ms Fox told her that her primary reason for leaving was that she found the claimant difficult to work for. Ms Swain conducted an exit interview which was informal and no notes were taken.[60]We concluded that Ms Fox very likely told the claimant that she was leaving for the reasons the claimant recorded. She may well have told the second respondent and Ms Swain that she was unhappy about her relationship with the claimant. In the absence of any recording of concerns or investigation or discussion with the claimant, we were unable to conclude that any problem with the claimant’s relationship with Ms Fox could fairly have been considered by the respondents to be the claimant’s fault.[61]On 6 March 2020, Ms Yallop wrote to staff: All I'm sure no-one has avoided the increased media attention about UK cases of COVID-19 in recent days. We are continuing to follow the updated guidance from the Department of Health and Social Care and consider how we carefully manage this situation at Starling. In addition to the travel guidance below, any travel and or close contact with anyone who has recently travelled to any region of Italy is now included in the government advice. Therefore please let your manager / People Partner know if you have travelled or have plans to travel to Italy or if you are in close contact with anyone who is. … Finally, if you have any underlying medical conditions which gives you any cause for concern, (for example which affect your respiratory system; your immune system etc), then again please speak to your manager or People Partner for additional guidance. If you have any questions please contact your People Partner or local People team member: … Our Employee Assistance Programme via perkbox https://starlingbank.perkbox.com/perks/info/health-assured is also available Claimant’s health[62]It is relevant at this point to interpose the evidence we had about the claimant’s health condition and what the respondents knew about it.[63]The claimant has asthma which is exacerbated by environmental conditions and by respiratory infections. The claimant said that she developed a persistent cough in October 2019 due to the air conditioning in the office being very cold. She raised concerns about the air conditioning with the first respondent’s facilities department on 2 July 2019, 12 July 2019 and 5 September 2019 but, although her concerns were acknowledged, there was no change. On 30 September 2019, the claimant wrote to the second respondent on Slack asking if she could have his old desk to get away from the air conditioning vent. There was no response from the second respondent.[64]The second respondent said that the claimant did not mention asthma; he thought the request for a move was simply to get to a warmer area away from the vent. He thought she took the desk anyway, although he did not reply to the message.[65]In about October 2019, the claimant said that she discussed the air conditioning with the second respondent and he said, ‘Are you trying to say that this is my problem as I’m responsible for facilities’. She said she said, ’No, it’s because it has an impact on my asthma, that’s why I’m coughing.’[66]In cross examination, the second respondent said: ‘Had this conversation occurred, then I am pretty certain that I would have done something about that. I don’t recall that conversation at all’.[67]It made sense to the Tribunal that the claimant would have escalated the matter to the second respondent at this point since she had raised it with facilities a number of times and had no real response. We concluded she had explicitly referred to her asthma given the email which she sent on 7 November 2019 described below. Given the fact that the second respondent had managed to forget most of what the claimant had said about her health by the time the respondents submitted their response to the proceedings, including overt references in written materials to the claimant’s asthma, we did not put much weight on the fact that he could not recall this discussion.[68]On 7 November 2019, the claimant made an appointment with her GP due to her persistent cough and emailed the second respondent: I will need to wfh tomorrow please. I have a chest infection so will need to see my GP to change my inhalers.[69]We note that the reference to inhalers makes best sense in the context of a previous reference by the claimant to having asthma.[70]There was no response from the second respondent. It seemed unusual to the Tribunal that a manager would not at least acknowledge that an employee was unwell and express concern.[71]The claimant said that at this time she used cough sweets and inhalers in meetings. She would apologise about coughing and explain she had asthma. She might use an inhaler two or three times in a meeting. The respondents’ witnesses said they had no recollection of those behaviours and the coughing.[72]Between 16 and 20 December 2019, the claimant was on sick leave. She sent various emails to the second respondent. On 16 December 2019, she wrote: Hi, I’m unable to attend work today due to suffering with flu. There was no response from the second respondent.[74]On 17 December:2019 in the morning, the claimant wrote: Still unwell today with flu and unable to attend. In the afternoon she wrote: I'm unlikely to be back tomorrow - very unwell with fever and troublesome cough. I'll keep you updated. There was no response to that email.[76]The claimant said that she did update the second respondent but that email was not provided on disclosure. She said that she would have said at that point that her problems were to do with asthma. The claimant said that she offered to dial in to the board meeting on 20 December 2019 and that she did dial in and was not acknowledged by the second respondent. We accepted that the claimant had dialled in to the meeting.[77]The second respondent that said if there was no email, there had been no update. No update might have been necessary as it was very close to Christmas.[78]We did not think that the respondent would have repressed a single email and concluded that there was no such email. It was quite likely that the claimant had updated the second respondent in some other way, possibly by way of a Slack message which had not been retrieved.[79]The second respondent was cross examined about not responding to these emails and not making further enquiries. He said that he trusted people to get on with the job, and if they were off ill to keep him updated and let him know when they were back. He would not pry about medical issues which are sensitive, especially when there was a gender difference. It did not indicate a lack of care on his part. He said that the claimant was quite private. He did not conduct return to work interviews and trusted employees to return to work when ready. That was the culture. He ordinarily would ask how someone was when they came back to work. When the claimant returned to work he assumed that she was OK.[80]We were not satisfied with this as a full explanation of why the second respondent failed to respond to communications from the claimant about her health. It seemed to us that it is a usual part of managerial responsibilities to at least express concern and extend an offer of support to an employee who reports being unwell. Human beings regularly express concern or make general enquiries about one another’s health without needing to pry into sensitive details or being seen as doing so.[81]On 23 December 2019, the claimant returned to the office but had not made a full recovery. The second respondent made no enquiry about her health on her return.[82]On 24 December 2019, the claimant attended work. She said that she also worked from home on Christmas and Boxing Day and attended the office on 27 December 2019. She attended the office on 30 and 31 December 2019 and also attended a GP appointment on 30 December.[83]On 3 January 2020, the claimant emailed the second respondent: I have two medical appointments next week (Tuesday and Thursday) in relation to asthma so will need to wfh due to the timing. Sorry, I couldn‘t rearrange these to be on the same day. There was no response from the second respondent.[85]The claimant told the Tribunal that the lack of response felt punishing and that the second respondent was indicating that he was not happy. She said that he was not responsive about health matters but was responsive in relation to work.[86]The claimant said that the respondents should have made the connection between her earlier complaints and asthma at this point as she had had a persistent cough for four months and used inhalers openly in meetings.[87]The claimant said that in early January she asked the second respondent if she could work from home to complete some urgent work as her persistent cough was making her feel unwell and she was suffering from fatigue. She said he refused her request.[88]The second respondent’s evidence was that he did turn down a working from home request from the claimant on one occasion but she did not give a reason for her request. The first respondent’s policy was generally to work in office. It was an office culture, a team culture, he said.[89]We accepted the claimant’s evidence that she would have given a reason for wanting to work from home. She had been sick and she had been open about being sick and having medical appointments.[90]On 13 January 2020, the claimant had a further medical appointment.[91]On 24 January 2020, there were Slack messages between the claimant and the second respondent: Claimant: : I‘ll send the email I hear back from passageways which should be Monday. Also I have a hospital appointment on Monday so will need to wfh pls. Second respondent: ok[92]The claimant cross examined the respondent on whether he thought he should have enquired about her third hospital appointment in a month, or referred the matter to Ms Yallop or Ms Swain; he said could not remember what he thought at the time.[93]On 27 January 2020, the claimant had a medical appointment including a chest Xray. Performance concerns to January 2020[94]We heard evidence from both parties about what the respondents said were the concerns about the claimant’s performance. Up until Janaury 2020, these were as below. November 2019[95]The second respondent said that an email exchange which we were shown indicated a failure by the claimant to know and understand the identity of director. He said that there was a fundamental lack of knowledge or understanding of vital information; he said ‘if I am honest I would say that from this point onwards I began to question whether she should stay with the bank’. He did not investigate the matter with her or raise his concern. The claimant said in evidence that she knew who the directors were as she included them in every set of boardd meeting minutes. Looking at the email exchange it appeared to us that the second respondent had misread a short email by the claimant which was a bit sloppily expressed but that she did know who the directors were and this would have been apparent if the second respondent had raised the matter with her.[96]We saw a redacted document produced by the respondents which looked like this:[97]Ms Yallop’s evidence was that this document was created in late 2019, as part of a discussion about succession planning with Ms Boden and the second respondent. The second respondent did not recognise the document. It is a graph of employees’ performance and attitude. It was said by the respondents to show that the claimant (‘GR’) was below average in relation to performance. We were not persuaded that was the case because the ‘mid’ in brackets seemed to suggest she was in the middle. Ultimately we did not feel we could derive very much from the this document, given how little we were told about how it was formulated and what information had fed into it. December 2019 board minutes and feedback[98]The second respondent gave evidence that key policies for approval were not included in the minutes, timings did not add up and attendees were wrong. He said that he discussed these issues with the claimant, it appeared in early January. The claimant said that she did not recollect a discussion to that effect. We were shown a handwritten note made by the second respondent which records the issues. It was not part of the claimant’s HR file. In evidence the second respondent said that he wrote the issues on a piece of paper and then must have put the piece of paper in a drawer.[99]We accepted that the second respondent had some concerns about the minutes but we had no clear evidence as to whether those concerns were justified. Reporting work in December 2019[100]The claimant had been assigned work on something called a close controllers report. The second respondent said that she did not progress the report and did not come back to him as her line manager to say either she did not understand the request or have capacity to complete it; she just did not do it or discuss it.[101]The claimant’s evidence was that this report was not due until 31 March 2020. It was not a large piece of work and would not need to have been started by 9 March 2020. The second respondent did not raise the matter with her but she approached him about it in January and February 2020. She was told to concentrate on other matters. The work was ‘on her radar’ and in her calendar and would not have been forgotten.[102]We accepted the claimant’s account. It was clear that the issue was not raised with the claimant at the time and it seemed improbable to the Tribunal that the second respondent would not have mentioned to the claimant an important piece of work which he genuinely felt was being neglected. Errors in January 2020 board pack[103]There was a change to the name of the file references for some board papers made on the day of the board meeting which the second respondent said would reflect poorly on him as company secretary if they were not correct. He wrote to the claimant: You just changed all the refs on my docs in the board pack? Change them back URGENTLY 104 .The claimant wrote back: Sorry was going by your board approvals table I’ll change now[105]The claimant’s evidence was that she was trying to support with the board pack process by naming the electronic files so they aligned with references in the board approvals table. She did not change the documents themselves.[106]It appeared to the Tribunal that the claimant had attempted to take a proactive step which the second respondent felt was a wrong step. It was clearly something which irritated the second respondent at the time but it was not a large issue. End January 2020 power of attorney document[107]The second respondent said that this should have been a very straightforward task but what the claimant produced was very poor; there were drafting errors and careless mistakes. He said that he took a significant amount of time to go through the document with her to explain what was wrong.[108]The claimant told the Tribunal that the issues were with the existing template and the second respondent did not raise concerns with her.[109]Again, in the absence of documentary evidence, we concluded that the second respondent had been dissatisfied with the document but had not explicitly raised his concerns with the claimant and there was insufficient evidence before us to determine whether the concerns were significant.[110]Two other general performance matters were raised by the respondents. It was suggested that the claimant had failed to work on a company secretary handbook and failed to work on employee share schemes. There was such a paucity of evidence from the respondents on these matters, both of any deficiency and that any issue was raised with the claimant, that we were unable to conclude that there were any genuine significant performance concerns about these matters. Resumed chronology of events[111]The second respondent said that his frustration with the claimant’s performance was growing by January 2020. Because of the nature of the errors and apparent lack of care, he had little confidence she could improve. He discussed his concerns with Ms Boden and Ms Yallop. These discussions were not documented by anyone. The second respondent said that they discussed whether to let the claimant go. He said he still wanted to give her the opportunity to improve.[112]On 6 February 2020, the claimant emailed the second respondent, in the context of a Tube strike: I’ve been waiting nearly an hour now and jubilee, metropolitan, even Thameslink - not running. I’ll be wfh instead.[113]She received no response and she worked from home that day. 114. 11 February 2020, the claimant emailed the second respondent: I have an MOT booked in for Friday and will need to wfh for handover and collection please.[115]There followed some Slack messages: February 2020 ongoing performance criticisms[116]On 4 February 2020, at 17:35 (or just after the end of the claimant’s usual / contracted working day, the second respondent sent her an email arising from some correspondence he had been engaged in with someone else about a document: Pls check this.[117]The second respondent said that the claimant did not check the document and just left the office.[118]The claimant said that she had not been included in the previous email correspondence and was not told there was a task which needed to be done urgently before she left for the day. She left at 17:30 and saw emails when she got home; she had not been copied in to earlier chains and was working through these but saw that at 20:58, the second respondent messaged the person the document was from: Thanks for this – this is fine. No further questions The need to do the work had gone.[119]We concluded that the second respondent’s irritation arose from the claimant leaving the office at 17:30.[120]In early February 2020, the claimant was asked to work on a non disclosure agreement. The second respondent said that these were short documents which should have taken an hour but took the claimant several hours. When she did produce the NDA, there was no explanation or rationale for changes made to a template so the document was of little help. He said that in respect of a further NDA, she spent an entire day drafting one from scratch; he said that this showed a lack of awareness that they had precedents which meant an NDA could be prepared in around 15 minutes.[121]We heard evidence from the claimant disputing what the second respondent sad in some detail. There were no documented concerns raised and ultimately all we could conclude on this issue was that the second respondent had had some concerns about the NDAs which were not raised and explored with the claimant but we could reach no conclusion that these were justified.[122]On 14 February 2020, the claimant emailed the second respondent about a stock transfer form: We will need to arrange for JTC as transferor to sign this (page 1 and 2) Shall I get this done by Marcus on Wednesday? (Craig asked for the share certificate to be signed by Marcus on Wednesday rather than posting). Also, is the consideration for less than £1000? If more, it will need to filed at HMRC too.[123]The second respondent said that the claimant was wrong to say that a stock transfer form had to be filed with HMRC. She asked if the consideration was less than £1000 when he says she should have known this information. The second respondent described this as a fundamental lack of knowledge which he would not have expected from a junior assistant company secretary and which demonstrated to him that the claimant was not capable of progressing in a company secretary role. She was not relieving him of work but creating work[124]The claimant said that the transfer form needed to be sent to HMRC as there was a requirement to pay stamp duty if the transaction was over £1000. She said that she had asked the second respondent about his thoughts on the process previously after receiving the stock transfer form and it was important to ask the question.[125]Again, the respondent did not satisfy us that there was an error by the claimant. Had the matter been discussed with the claimant, it may be that she would have addressed his concerns; but there was no discussion.[126]The second respondent said that the claimant failed to maintain the first respondent’s structure chart. It was her job to maintain it. He said that she would often ask colleagues in the legal team about it, which showed a lack of understanding of it and she then failed to update and maintain it following a transaction which had been completed and had an impact on the structure chart.[127]There was a disagreement in evidence between the claimant and the second respondent as to whether there were aspects of the structure chart which were in fact the responsibility of an external law firm. Once again, in the absence of any discussion with the claimant at the time or documented concerns, we were unable to conclude that the respondent had a significant and justified concern about this aspect of the claimant’s work.[128]Also on 14 February 2020, the second respondent said that Ms Boden was frustrated as the claimant had not put all documents for the board in one pdf. She emailed the claimant about this and the claimant said that she had advised Larry Potter to do this in future. Ms Boden wrote back to say that this was the claimant’s job.[129]The correspondence demonstrated that Ms Boden had asked the claimant to do something which was the claimant’s responsibility. There was nothing in the correspondence which suggested that the issue was perceived as significant.[130]The second respondent was critical of the time taken by the claimant to draft board meeting minutes. He said that the claimant said it took three days when he expected it to take four to six hours.[131]The claimant was given responsibility for the February 2020 board minutes and the second respondent said that given issues which arose in December and January and discussions they had had about the importance of accuracy, he felt this was a critical moment and that if she did not produce minutes to the highest standard it would show she did not have the capability for the role and he would have to let her go.[132]The second respondent said that the papers for the February 2020 board meeting failed to include relevant policies which therefore had to be held over to the March 2020 meeting. He said that the claimant was working to the wrong deadline in an email which she sent which read: Hi Please find attached the draft Board Report for completion of your relevant section - https://docs.google.com/document/d/1brM-oWgUcmiWJL79trjWX_ bvAjY7UnhmrV-2lqad6_M/edit I have left the content from the January report for your section as reference only - please update accordingly. Please note the closing date for completion is Wednesday 12 February at 1PM.[133]The second respondent said that he replied to the claimant, copied to Ms Yallop in a short and abrupt way, which demonstrated his level of frustration with the claimant. In fact he only wrote to Ms Yallop according to the email provided to the Tribunal: It's not due Weds, it's due Monday at noon.[134]The claimant and second respondent disagreed in evidence as to how the deadlines for board papers worked. Ultimately we were able to conclude that on this occasion the second respondent considered that the claimant had got the deadline wrong.[135]So far as the policies were concerned, we were satisfied that the second respondent considered that the policies should have been included with the papers.[136]The second respondent said that these repeated errors were hugely embarrassing for him and created operational problems. He said that he discussed the problems with Ms Boden and Ms Yallop and they agreed the claimant should leave as she did not show the potential or desire to develop.[137]Ms Yallop in evidence agreed that there were discussions about the claimant’s performance. She said that nothing was said about health or attendance. There are no file notes of any discussion. Ms Yallop said that reflected the collegiate and fast moving nature of the first respondent. They spoke a lot in meetings which did not formally minute; they would make decisions and act on them.[138]The second respondent did not know exactly when the discussions occurred but told the Tribunal that a decision would have been made by 16 February[139]Ms Swain said in her witness statement that a decision to terminate the claimant’s employment was made by mid February 2020. Ms Yallop also gave evidence that she believed the decision had been made it by mid February. At some point Ms Yallop gave the second respondent advice about the termination. It was a commercial decision given the claimant’s length of service. The risk to the business was considered minimal. This advice was not documented.[140]The second respondent said that that, following the February board meeting, he had questions about the claimant’s quality of work, work ethic and ownership of her role. He said that she failed to correctly note all the action points arising from the board meeting in an email of 20 February 2020 and he was dissatisfied that the claimant did not complete writing up the minutes before she took annual leave in the last week of February 2020.[141]The claimant’s evidence was that the second respondent had misunderstood the email she sent which was not intended to relay all of the action points. No one had raised concerns previously about the time she spent writing up the minutes, which she felt was the amount of time required to do them properly in a regulated environment.[142]The second respondent said that he then discussed with Ms Swain the plan for terminating the claimant’s employment and their Slack messages on 28 February 2020 refer to those discussions. Ms Swain in her statement said that she had heard from Ms Yallop that the second respondent might have actioned the claimant’s termination.[143]Slack messages between Ms Swain and the second respondent that day read: Ms Swain: Morning – Susanna mentioned you may have had the conversation we had planned for next week? Just let me know if there is anything you need me to do. Second respondent: Are you in today? Ms Swain: Yes Second respondent: I have a slightly new plan. Catch me when you’re down here. Ms Swain: OK will head down soon[144]The second respondent’s evidence was that the new plan was about the timing of the termination. He said that his reasons for not having had the discussion earlier were: - It was a difficult conversation and he was not looking forward to it; - Both he and the claimant were intermittently in the office at this point due to leave. He was on holiday 17, 20 and 21 February and the claimant was on holiday 21 February to 2 March 2020. He was on holiday much of the week of 2 March; - He needed the claimant to complete the February 2020 board minutes before she left.[145]We accepted the respondents’ evidence that there had been discussions between the second respondent and Ms Yallop and Ms Boden about terminating the claimant’s employment by mid-February 2020 and that the second respondent had raised performance concerns.[146]The claimant said that on 4 March 2020, due to fluctuations in temperature in the office, she had a severe cough and had to leave the office at about 16:45. She said that she asked the second respondent if she could leave early as she had a persistent cough. She said that he said nothing and continued working at his PC. She that her relationship with the second respondent was very corporate and formal and he had an aversion to discussing health matters.[147]The second respondent in evidence said that he did not remember this incident. He said that he had a large team and received hundreds of emails and Slack messages; people came to see him in person. This incident might have happened but he did not recall it. We accepted the incident had occurred.[148]On 5 March 2020, the claimant send the second respondent a slack message Still feeling unwell from yesterday but will wfh. That was consistent with the discussion she said that they had had the day before.[149]In terms of what the second respondent told us he knew about the claimant’s health, he said that he had not remembered her referring to her asthma in an email; it had not ‘registered’ with him. He did not recall the reference to asthma after she presented her claim and only remembered the reference after the email was disclosed. He was aware that asthma may range in severity and had no idea the claimant had a disability. He said that he was aware she had ‘a couple of days’ sickness but considered that overall her attendance was OK.[150]The second respondent did not recollect the claimant’s persistent cough nor the claimant apologising for it; he said that other people he had spoken to since the proceedings started did not recall it either.[151]The second respondent said that the air conditioning was controlled by the building owner and the temperature of the second floor where he and the claimant worked was an issue for a lot of people; a lot of people said it felt too cold. He said that he and the claimant had no discussions about her health or attendance.[152]On 9 March 2020, the claimant drafted an email in the ‘notes’ function in her phone. She was planning to ask the second respondent for a discussion about Ms Yallop’s email of 6 March 2020 but drafted this email to send in case he was not in. She told the Tribunal that she was very nervous about being exposed to the Covid virus on her way to work or at the office. She said that she was fearful for her own safety and that of her parents. The draft says: Hi I wanted to discuss this in person but I’m not sure when you are back in the office. This is in relation to the below advice form HR to speak to your manager about any medical concerns in relation to Coronavirus. As you are aware I am an asthma sufferer. This makes me more prone and at risk of contracting flu / viruses attacking the immune system resulting in breathlessness and persistent coughing. This is due to inflammation of the respiratory tract and full recovery can take a number of months as experienced during my recent illness in December and January (although previously recovery has taken much longer). I am also susceptible to recurrence following an illness. In view of the above and given the symptoms of the virus, I would like to minimise any impact on my respiratory / immune system. Please can you provide further guidance and support on this matter?[153]After she arrived at work, the claimant spoke with the second respondent about wanting to have a discussion. She said that this was at 9:20. She said she asked when he would be free for a discussion about the Yallop email. She said that she wanted to discuss her pre-existing medical condition which she was very concerned about. Given the note the claimant had prepared, we accepted that the claimant had been explicit with the second respondent about what she wanted to talk about.[154]The claimant said that the second respondent invited her into a meeting room at 9:45. She thought it was to discuss the medical issue. She was blindsided when he said that she was not a Starling person and would be provided with one month’s notice to leave the bank. She said that she asked for clarity as to why she was not a Starling person. She asked if it was because of her ongoing illness, the fact that she had been off sick and now had raised concerns about coronavirus.[155]The claimant said that she explained that no formal or informal warnings had been given or prior meetings had taken place in relation to this decision. She had passed her probation and received a pay rise.[156]The second respondent’s account of the events of that morning was somewhat different. He said that the claimant said that she had received the Yallop email and wanted to talk to him about it. He told the Tribunal that he said that was fine but that he did not pay that much attention to what the claimant had said; what was in his mind was that he was planning to terminate her employment that day. He said that there was no reference to concern about her health or anyone else’s health.[157]The second respondent said that he expected people to speak to him about the Yallop email but he did not make a connection to a respiratory condition with the claimant; he was not aware of the claimant’s condition. It did not cross his mind that the claimant wanted to discuss a medical condition. The Tribunal found that evidence unconvincing. The claimant had had to go home with a cough a few days before and worked from home for the same reason on the following day. The email invited a discussion about medical conditions. We find that the claimant mentioned her medical condition when asking for the meeting. The second respondent we find was well aware that the claimant wanted a meeting to discuss her medical condition.[158]In further evidence about his thinking at this time, the second respondent told the Tribunal that it was a busy period. If he had had a person performing well who needed to work from home because of the pandemic, why would he dismiss that person, it did not make sense. He said that a diabetic employee in the team received time off work or worked from home if necessary. Since the pandemic started, there had been more home working.[159]The second respondent said that he did not discuss the Yallop email with the claimant because the meeting was a pre-planned dismissal meeting. They met between at some points between 9:30 and 10 am for about ten minutes.[160]The second respondent said that what was said at the meeting was as per his notes in the bundle, which were made several days later. He made no notes at the time. The second respondent’s evidence, even when pressed by the Tribunal, was that these notes were ‘nearly verbatim’. The notes are as follows: Notes of meeting 9 March 2020 with Gulnaz Raja 1) MFN: a) I don’t think it’s working out for you at Starling and I have lost confidence in having support so I am giving you a month’s notice from today. b) I doubt this is a surprise and I am sure you know the reasons but I’m happy to talk specifically about the reasons if you want. 2) GR: This is a surprise. I am really surprised. 3) MFN: Well, that surprises me as there have been lots of things not working. As I explained at your interview, this was a role to be grabbed and taken and this just has not happened. I have lost confidence in things being done and I am not sure that there is the level of expertise that is required. 4) GR: Is it to do with Mollie leaving last week? 5) MFN: No, as I have said, it’s to do with this role not having been grabbed and mistakes and me having no confidence in being supported. I was actually going to have this conversation two weeks ago but I went on holiday and then you were on holiday. Having said that I was not happy about Mollie going as I thought she was doing really well. 6) GR: So was it because I went on holiday? 7) MFN: No – as I said, people are entitled to go on holiday. I encourage people to take holiday. I have approved your holiday. 8) GR: I am really surprised. Can you give me examples? 9) MFN: Again, I am surprised you are surprised. As I said this was a role to take and make it your own. I have brought up a number of these. There has been no progress on organisation of the department, the records are not there. You have been asking me about the cap table, the structure chart is not right and you are asking me where it is. This was supposed to be for you to do. You were supposed to be doing the share schemes and you have not even got involved in them. 10) GR: I know that I said I wanted to get involved in the share schemes and I haven’t done them but I feel that you have to be here from the start to understand them. 11) MFN: It’s easier from the start but you were on the new one and we had agreed you would be taking them over but I got no support. I have had to end up doing stuff myself at a completely busy time when we are fund raising and you said you wanted to get involved in corporate work also and have not at all. The work that you have done has surprised me because a lot of it showed limited or no knowledge about company law – info sent to Shakespeare Martineau and the info given to Finance for the accounts. 12) GR: Is it because I was ill at Christmas? 13) MFN: No – as I said, it’s because of performance issues. People get ill, Gulnaz, that is understood. As I said, this was a role for someone ambitious to take and make their own. 14) GR: I thought things were going ok. 15) MFN: But we went through a number of things that kept being wrong, like that specific Board meeting where I went through several things where they wrong. Every time on board meetings, I never felt confident that you were going to be here and I always had to come in early and set up the room. 16) GR: I would like to stay as I am really passionate about Starling. 17) MFN: But nothing that you have done has ever demonstrated that in any way. 18) GR: I was staying in the background. I was Deputy Company Secretary and I didn’t want to try and be Company Secretary. 19) MFN: But that’s what the role was supposed to be – to have someone who wanted to be Company Secretary. You said to me you didn’t want to just being doing minutes and so we talked about share schemes and we got you an assistant to do minutes and nothing has moved on. You said to me Mollie wasn’t working hard but I am surprised at that as I am here late and she was here a lot. I feel you’re not a Starling person, there are people here who are really putting in the effort and you have not been. I asked for board minutes to get done before you went away and you said you couldn’t do them; you didn’t make the effort to get them done. Then you email me to say board mins take 3 days. You have been moving at a different speed to people in the rest of the team that really want to work for it. a number of times I asked for things to be done and they haven’t been done, then I ask for CoSec to do the post and you question why and I feel guilty about it. 20) GR: Did other people have comments about me? I felt I built positive relationships with my colleagues. 21) MFN: There were no extremely negative comments but I speak to people and they speak to me and I have not had any positive ones. 22) GR: I would like another chance to try. 23) MFN: No. I don’t think it would work. We have not moved on in 7 or 8 months or however long it has been. Please hand in your laptop and security pass.[161]The claimant was cross examined about the second respondent’s account and these notes. She said that the hearing lasted less than a minute. As to the notes, she said: - There was no question by her as to whether the dismissal was because of Ms Fox - She did not ask if it was because she went on holiday - There was no mention of the structure chart and share schemes - The second respondent did not say: ‘people get ill that’s understood’. - She asked about whether it was because of illness and being off sick and now because of Covid - She did ask if she could try and may have said she thought things were going OK - She did say that she was passionate about Starling - She did not say anything about staying in the background; that was not what she had been doing - There was no discussion about just doing the minutes - There was no discussion about how long board minutes took - She might have mentioned positive relationships with colleagues[162]Ms Yallop told the Tribunal that the second respondent spoke with her about the meeting and did not mention that the claimant said she wanted to speak with him about the email of 6 March 2020. He told her that the claimant had been surprised at the decision and had not accepted the reason for dismissal.[163]It is unsurprising that different people remember different aspects of meetings which have not been recorded at the time. The closest we have to contemporaneous accounts were the second respondent’s notes and the claimant’s account in her grievance letter,[164]We did not accept that the minutes the second respondent produced several days later were ‘nearly verbatim’. The second respondent did not suggest that he had an exceptional or eidetic memory and it is not the experience of the Tribunal that any individual can produce ‘nearly verbatim’ notes of a ten minute discussion several days after that discussion. What we find happened is that the claimant was shocked to be told she was being dismissed and asked for the reason. The second respondent said some of the things that he has subsequently included in his note. The claimant asked whether it was because of her illness and time off work – we think not limited to her time off at Christmas. What was on her mind was that she needed to ask about working from home due to the pandemic and we accepted her account of what she had raised about this at the meeting.[165]It is relevant to note the following:a. There is no HR file note or correspondence recording that the second respondent was going to dismiss the claimant on 9 March 2020;b. The second respondent gave evidence he had made no preparations to cover the claimant’s work. He had not made specific plans; he said that he had a growing legal department and new people joining. The CEO’s executive assistant could help. He did not recruit to the claimant’s role until around June 2021. After her departure, he got another person in a different team, to help with cosec work and help from a firm of solicitors;c. No dismissal letter had been drafted or discussed with HR; there was no script or notes prepared in advance;d. There was no HR presence at the meeting. Ms Yallop said she did not think she or Ms Twain were in that day. In many organisations, it would have been deemed sensible to have an HR representative to take a note and give advice;e. There was no meeting invitation.[166]The claimant challenged the second respondent in cross examination about continuing to let her have access to confidential material in this period. He said that she was a solicitor and subject to confidentiality obligations. Her performance was not terrible in all respects so she could be trusted to do work such as board minutes. It was a very busy period and she was useful during this period.[167]On 11 March 2020, the claimant sent Ms Yallop her grievance letter: Dear Susanna Re: Meeting with Matthew Newman dated 09 March 2020 l write with respect to events and discussions which took place on 09 March 1. Following your email sent to the business on 06 March 2020 in relation to coronavirus. I followed your advice to discuss with my line manager any medical concerns with particular reference to the respiratory tract / immune system. Based on the fact I am an asthma sufferer and have a history of contracting flu viruses attacking the immune system, I felt it was important to raise this with Matt. Therefore, on 09 March at 9:20AM l approached him at his desk and asked him to let me know when he would be free for a discussion. l explained this was in relation to your coronavirus email and I wanted to discuss a preexisting medical condition which I was very concerned about. He confirmed he would let me know when he would be free. At 9:45AM, Matt asked me to join him in a meeting room near the Legal team. I was under the impression this was in relation to my request to discuss my medical condition, however there was no mention of this and l was blindsided into a discussion on my future at the Bank. He commented l was not a ‘Starling person’ and would be providing me with 1 month notice to leave the Bank. l explained l was surprised by this decision and asked for clarity on why he felt l was not a ’Starling person’. Unfortunately, he was unable to coherently articulate any specific reasons of concern. l explained I felt passionate about the direction of the Bank and had built good working relationships with colleagues and the Board. I had taken ownership of the Board and Committee process and had recently passed my exams to qualify as a Chartered Company Secretary. I also explained no warnings or meetings had taken place in relation to my performance and my probation had been passed. I also received a letter in January confirming a salary increase in relation to outstanding performance contribution. It should be noted Matt was aware of my pre—existing medical condition of asthma. in the middle of December, I was struck with flu which impacted my immune system resulting in breathlessness and a persistent cough; Further, I attended several GP appointments as well as a hospital referral during January and February as the symptoms persisted. l have suffered with asthma as a young adult and on each occasion of contracting flu and the common cold, the symptoms of cough and breathlessness have been exacerbated resulting in medical treatment and hospital referral. In view of the above and the recent outbreak of coronavirus, l was deeply concerned about the impact on my immune system. I was hoping Matt would be mindful of this and provide guidance based on HR procedures in rotation to coronavirus. However, his response was to terminate my contract with one month notice period and to leave the premises. It should be noted, given the current global heath climate, I am unlikely to secure a new role for the foreseeable future. it should also be noted, I have pre-existing medical conditions which are likely to be further exacerbated in view of the length of time in securing a new role. 7. it is evident the above has amounted to automatically unfair dismissal on the following grounds: a) Whistleblowing on a health and safety concern impacting my health, colleagues. the public and therefore in the public interest; and b) Disability discrimination in breach of the Equality Act 2010. in response to requesting a meeting on coronavirus and pre-existing medical condition of asthma, l was automatically dismissed. 8. in view of the above, please can you provide the following: a) With reference to one month notice period, phase confirm my formal last date with the Bank; b) A data subject access request to be actioned under the GDPR; and c) Agreed written reference. which any third party may request the Bank in relation to my employment, to include my job title and dates of employment only. I look forward to your response within 7 days. if you require any further information, please do let me know.[168]On 16 March 2020, the second respondent sent the claimant a dismissal letter: Dismissal I am writing to confirm that your employment with the company was terminated on the 9th of March 2020, due to underperformance in role. As discussed, it is my view that you have failed to deliver against the expectations set out for the role of Deputy Company Secretary in the Legal team at Starling Bank. You are entitled to one month's notice. As explained to you, you are not required to work your notice period and instead will be paid in lieu. Therefore, you will receive your final salary payment on Tuesday the 31st of March 2020, which will be subject to normal deductions of tax and National Insurance contributions. We will forward your P45 in due course. … You have the right to appeal to my decision and should do so, in writing, within 7 days of receipt of this letter.[169]On 23 March 2020, the claimant sent Ms Yallop a letter appealing her dismissal: I am appealing against the decision to dismiss me on 9 March 2020. l have already set out the reasons I object to my dismissal in my letter addressed to you dated 11 March 2020. Section 8(a) of the said letter, prompted Matthew to confirm the reason for my dismissal and send written confirmation thereof which had not previously been communicated to me, in particular at the time of dismissal. I note a response to section 8 (b) and 8 (c) is still awaited. I strongly dispute that l was dismissed for “underperformance”. No concerns about my performance have been previously raised with me. l was not warned about my performance formally or informally. It was never brought to my attention that I required support to be able to improve any aspects of my performance. I passed my probation in October 2019 and was awarded a payrise for outstanding performance and contribution in January 2020. Further, in February 2020, I passed ICSA exams to qualify as a Chartered Company Secretary, demonstrating my capability to perform the role at the highest level. Matthew‘s actions are now likely to have serious consequences for my chosen career path. In addition, he failed to make reasonable adjustments to accommodate my disability, in particular he had not accommodated my physical condition of asthma, which he was made aware of in 2019 as well as requiring time off in December 2019 after contracting flu. Further, I am aware Matthew has overall responsibility for the People function and therefore note there was a failure to follow his department‘s own disciplinary procedure as stipulated in Schedule 10 of the Staff Handbook as follows: a) Section 3 - no written notice of a hearing and sufficient information about the alleged underperformance and my right to be accompanied to the meeting. b) Section 4 — failure to provide two written warnings; and c) Section 5 — failure to inform me of my appeal rights as per section 5.1 (‘you may appeal in writing within one week of being told the decision’). I was not informed of my appeal rights on 09 March 2020. 6. It is evident from the above, no preliminary steps were taken prior to my dismissal in relation to any alleged ‘underperformance’. I believe that the real reason for my dismissal was disability discrimination and that he recognised that I would be likely to have to work from home during the coronavirus outbreak and/or take time off to self-isolate as sickness absence or alternatively because he thought I had coronavirus because of my ongoing cough and thought I would spread the virus at work. I note that l was dismissed less than half an hour after I raised my concerns about the coronavirus. 7. I believe that the decision to dismiss me was automatically unfair and discriminatory. 8. In addition, I made a protected disclosure on 09 March 2020, by informing him that I had an underlying health condition, namely asthma and respiratory tract / compromised immune system and therefore there was a health and safety concern in the public interest, in particular in relation to my colleagues and also members of the public I come into contact with whilst commuting. As a direct result of that disclosure l was subjected to a detriment, namely your capability procedure and whistleblowing policy was not followed and l was unfairly dismissed. 9. I would like to be reinstated and to be paid compensation for the discriminatory treatment I have received and for appropriate measures taken to protect my health until the public health situation has improved.[170]On 25 March 2020, a barrister representing the claimant sent the respondent a without prejudice letter. That letter did not suggest that the claimant did not wish to pursue her appeal.[171]On 8 April 2020, the respondent’s solicitors sent a without prejudice letter in reply. This raised the various performance concerns raised by the respondents in these proceedings.[172]On 14 April 2020, the claimant’s barrister wrote again to the respondents. As to the appeal, the letter said: In fact no basic procedure was followed at all by your client. My client also raised this point in her appeal which has been completely ignored (letters dated 11 and 23 March reattached here as open letters). Further, despite providing my client with a late appeal right, your client even failed to follow through with any appeal procedures. … It is clear this dismissal was automatically unfair dismissal on the grounds of disability discrimination and protected disclosure of a health and safety matter. Your client’s actions have placed my client’s career at a severe disadvantage, she is unlikely to find another suitable role for at least 18 months and she has no option but to take this matter to the Employment Tribunal.[173]Ms Yallop’s evidence about why she did not consider the claimant’s appeal was that: ‘Given the advancement of ‘without prejudice’ correspondence I did not address Gulnaz’s appeal internally. She had not been given the right of appeal on termination in any event, and the nature of the correspondence from her representative indicated to me that Gulnaz was seeking to bring legal action rather than progress an internal appeal in any event.’ Medical evidence[174]We saw a letter from the claimant’s GP dated 12 October 2020:[175]A further report of 2 December 2020 had this section:[176]We also saw this summary of the claimant’s medical records over the relevant period: Law Health and safety dismissals
Law
[177]An employee is automatically unfairly dismissed if the reason or principal reason for dismissal is one of the health and safety reasons set out in section 100 Employment Rights Act 1996. 177. Tribunals should take a two stage approach under section.100(1)(e). Firstly: - Were there circumstances of danger that the employee reasonably believed to be serious or imminent? - Did he or she take or propose to take appropriate steps to protect him or herself or other persons from the danger? The second stage is to consider whether the employer’s sole or principal reason for dismissal was that the employee took or proposed to take appropriate steps. If so the dismissal would be automatically unfair: Oudahar v Esporta Group Ltd [2011] ICR 1406, EAT.[178]The ‘circumstances of danger’ are not limited to dangers in the workplace itself: Harvest Press Ltd v Mr T J McCaffrey [1999] IRLR 778, EAT.[179]Subsection 100(1)(e) is to be read with words inserted as follows: ‘in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger or to communicate these circumstances by any appropriate means to the employer’ in order to comply with EU Directive No.89/391: Balfour Kilpatrick Ltd v Acheson and ors [2003] IRLR 683.[180]Subsection 2 of section 100 provides: ‘For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. Health and safety detriment[181]Under Section 44(1)(e) Employment Rights Act 1996, it is unlawful for an employer to subject an employee to detriment because in circumstances of danger which the employee reasonably believed to be serious and imminent, he or she took (or proposed to take) appropriate steps to protect himself or other persons from the danger. Victimisation[182]Under s 27 Equality Act 2010 a person victimises another person if they subject that person to a detriment because that person has done a protected act or the person doing the victimising believes that person has done or may do a protected act.[183]The definition of a protected act includes the making of an allegation that the person subsequently subjecting the claimant to a detriment (or another person) has contravened the Equality Act 2010 or done ‘any other thing for the purpose or in connection with’ the Equality Act.[184]A detriment is anything which an individual might reasonably consider changed their position for the worse or put them at a disadvantage. It could include a threat which the individual takes seriously and which it is reasonable for them to take seriously. An unjustified sense of grievance alone would not be sufficient to establish detriment: EHRC Employment Code, paras 9.8 and 9.9.[185]The protected act need not be the only or even the primary cause of the detriment, provided it is a significant factor: Pathan v South London Islamic Centre EAT 0312/13. Discrimination arising from disability[186]In a claim under section 15 Equality Act 2010, a tribunal must consider: - Whether the claimant has been treated unfavourably; - Whether the unfavourable treatment is because of something arising in consequence of the employee’s disability; - Whether the employer knew, or could reasonably have been expected to know, that the employee or applicant had the disability relied on.[187]There are two aspects to causation: - Considering what caused the unfavourable treatment. This involves focussing on the reason in the mind of the alleged discriminator; o The ‘something’ need not be the main or sole reason for the treatment but must have a significant (or more than trivial) influence on the unfavourable treatment and so amount to an effective reason or cause of it; o There may be more than one link in the chain between the something that causes unfavourable treatment and the disability; - Determining whether that reason was something arising in consequence of the claimant’s disability. That is an objective question and does not involve consideration of the mental processes of the alleged discriminator: Pnaiser v NHS England and anor 2016 IRLR 170, EAT.[188]The burden of proof provisions in section 136 Equality Act 2010 mean, in a section 15 case, that the claimant must establish facts from which the Tribunal could reasonably conclude that the unfavourable treatment was because of the something arising in consequence of disability. If such facts are established, the respondent will have to prove that the reason was not the ‘something’ arising.[189]The respondent need not know the something arises in consequence of the disability; the knowledge required is of the disability only: City of York Council v Grosset UKEAT/0015/16/BA.[190]The phrase ‘something arising in consequence of the disability’ should be given its ordinary and natural meaning; it is not limited to things which the employer has no control over or to the effects of the disability on the disabled person rather than the employer: T-Systems Ltd v Lewis EAT 0042/15.[191]An employer has a defence to a claim under section 15 if it can show that the unfavourable treatment was a proportionate means of achieving a legitimate aim.[192]Assessing proportionality involves an objective balancing of the discriminatory effect of the treatment and the reasonable needs of the party responsible for the treatment: Hampson v Department of Education and Science [1989] ICR 179, CA. Submissions[193]We received written and oral submission from both parties. After we had commenced our deliberations, we invited further submissions in writing from the parties with respect to the following issue: During the course of deliberations, it seemed to the Tribunal that a possible analysis of the facts in this case, depending on the findings ultimately made, is that the claimant’s request for a meeting to discuss the 6 March 2020 email brought forward in time a dismissal which had already been decided upon. We did not hear submissions from the parties as to what the correct legal analysis of that situation is. Would or might those facts potentially fall within Section 100(1) ERA 1996 or would the bringing forward of a dismissal be properly regarded as a detriment under Section 44?[194]Both parties wrote to the Tribunal with their submissions on that issue. We have carefully taken into account all of the parties’ submissions but refer to them below only insofar as is necessary to explain our conclusions. Conclusions Disclosure
Conclusions
[195]Before considering the substantive issues, we considered whether the respondents’ disclosure exercise had been unsatisfactory, as the claimant alleged, because that might have been a matter from which we drew relevant inferences.[196]The claimant said that some documents which were disclosed in the proceedings had not been disclosed in response to her DSAR. She raised the issue we have alluded to above about the reference to interview notes which were never provided. She said that there would have been further Slack messages but these were not provided.[197]The respondents said that Slack messages were on a platform hosted by a third party and the respondents had provided the messages they had been able to obtain. The ‘interview notes’ were in fact just notes on the Workable system, which had been disclosed. Some items did not get produced in response to the DSAR because they were not on the claimant’s HR file but were found as a result of further searches during the disclosure process.[198]It seemed to us that the first respondent was not very good at documenting matters or keeping employee records. There was no good evidence before us that the respondents had not done a thorough and conscientious search for documents as part of the disclosure exercise and there was really nothing about that exercise which led us to conclude that documents had been suppressed or concocted. Weight the Tribunal gave to Ms Swain’s statement[199]Ms Swain in her statement said that she had discussions with the second respondent about the claimant’s performance but gave no dates or specifics of those discussions. She also said that he did not discuss the claimant’s health or attendance and that she was not aware of those matters.[200]In this respect, her evidence was very similar to that of Ms Yallop and similarly lacking in specificity. These discussions were not matters the claimant had knowledge of, so she had no conflicting evidence to give. We gave Ms Swain’s statement as much weight as seemed to us to be sensible to give to a statement which lacked detail in circumstances where the witness was not available to provide that detail. Discrimination arising from disability (s 15 EqA) Issue:a. Was the claimant treated unfavourably – i.e. dismissed – because of something arising from her disability?b. The claimant says the ‘something’ being: (para 5.1.1 at page 50): “the claimant’s past and turbulent health condition, disability related sickness absence, likely future time off work, her likely need for workplace adjustments such as working from home, social distancing, her likely need to self-isolate; and her propensity to cough over colleagues at work” which arose in consequence of her disability. Causation of ‘somethings’[201]We had first to consider which, if any, of the ‘somethings’ arose from the claimant’s disability.[202]The ‘past and turbulent health condition’ seemed to be intended to be a description of the symptoms as described in the GP reports. The description and records suggested that the symptoms were exacerbated at different times by different factors and were at times significant. If ‘turbulent’ was an adjective intended to describe that essential volatility, it seemed to us that the claimant’s past and turbulent symptoms arose from her disability of asthma.[203]The claimant’s sickness absence over the relevant period, according to her GP’s records and reports also arose from her asthma.[204]The evidence of the GP reports suggested that the claimant was likely to require time off work in the future due to her asthma and, once the pandemic had started, the asthma also gave rise to a likely need for adjustments; the claimant’s vulnerability foreseeably would require some provision for home working in particular (which also seems to be what the claimant meant by ‘selfisolating’).[205]As to ‘propensity to cough over colleagues at work’, we accepted the claimant’s evidence that she had a propensity to cough when her asthma was exacerbated, including in the presence of colleagues in the workplace. Causation of dismissal[206]It was relevant to consider which of these effects the respondents were aware of in order to understand which could possibly have acted on the mind of the second respondent in particular.[207]So far as the past and turbulent health condition was concerned, certainly the second respondent was aware that the claimant was having some time off work with symptoms and that she also had to attend medical appointments. He would have known that she had some five days off with illness and a further four days where she had to work from home.[208]He would also, we considered, have been aware by early 2020 that future time off work was likely. The claimant had told him she had asthma, she had had a number of days off work, she had had to work from home to attend some medical appointments.[209]In the context of the pandemic and the guidance which was emerging by March 2020, it would also have been clear that the claimant was likely to require some adjustments.[210]The ‘propensity to cough over colleagues’ we were not convinced would have been an obvious feature. The second respondent said he had not noticed it. We bear in mind that these events unfurled over the autumn and winter period when many people suffer from colds. It dd not seem to us improbable that the second respondent had not taken any particular note of the claimant coughing in the office.[211]Did the ‘somethings’ we found the respondents were aware of play a material role in the decision to dismiss the claimant some time in mid February 2020?[212]We looked carefully at factors which might shift the burden of proof: - The second respondent’s attitude to ill health and working from home. The claimant said that his failure to respond to messages showed he did not approve of and lacked sympathy for her health problems. We did not fully accept the second respondent’s account that he trusted colleagues and was seeking not to pry into health issues. A total failure to respond to messages about ill health and the failure by a manager to express any concern or support to a subordinate on a significant number of occasions, seemed to us to be intended to discourage time off for ill health and working from home. The fact that he allowed working from home tacitly by not objecting to the occasions when the claimant worked from home to attend appointments did not change our impression that he was seeking to discourage the requests by not acknowledging them. - We considered that there was good evidence that the second respondent valued employees working long hours in the office. He was critical of the claimant for leaving work at the end of her contracted hours. That attitude seemed to us in these circumstances to align with an attitude of impatience with ill health absence. - The second respondent’s credibility was to some extent impaired for us by his improbable assertions about his memory. We did not accept his evidence about his notes of the dismissal meeting being almost verbatim and we were troubled by his assertions that he did not remember the claimant’s references to asthma and the occasion on 4 March 2020 when she said that she had to go home to work due to her cough as compared with his apparently detailed recall of work issues. - The lack of documentation at the time as to the reasons for deciding to dismiss the claimant and/or the discussions about her dismissal. - The fact that the claimant passed her probation and was awarded a salary rise and the fact that the documents evidencing those events make no reference to any problem with her performance, but in fact suggest her performance is good. What happened in the chronology after that was that she began to have time off for ill health and began to request to work from home due to appointments. - The total lack of any formal procedure in relation to the dismissal.[213]As to facts which might point the other way, we were not persuaded that the second respondent was aware that Ms Fox had some time off for sickness or that even if he had been aware, this would have told us much about his attitude to the claimant’s sickness absence. The evidence as to the second respondent’s treatment of other disabled employees arose during oral evidence and was lacking any particular detail.[214]We considered that there were facts from we could reasonably conclude that the claimant’s ill health absences and need to work from home and her likely requirement for further time off in particular were a material reason for her dismissal. At this point in February 2020, some of the other somethings, such as a requirement for reasonable adjustments due to the pandemic, seemed to us not very likely to have played a material role.[215]We then had to look at the respondents’ explanation and consider whether we were satisfied that the somethings played no material part in the dismissal. The respondents’ explanation was that it was the claimant’s performance which led to her dismissal. The lack of process related to the fact that the claimant had less than two years’ service so there was felt to be no significant risk in dismissing her without a proper procedure.[216]We were not satisfied with the respondents’ explanation, bearing in mind the contextual facts we have set out above. We accepted that the second respondent may well have had some concerns and criticisms of the claimant (which he did not raise properly or explore with her and as to the substance of which there is a paucity of evidence). We did not accept that they were of such significance that on their own they would have led to the claimant’s dismissal at that point, particularly in view of the passing of probation and the salary rise. It appeared to us that the ill health absence and requests to work from home were part of a picture which included the claimant working her contractual hours and no more in the office and also a handful of work issues which together led the second respondent to decide that she was ‘not a Starling person’.[217]We upheld this claim. . Issue: c. The claimant says the ‘something’ being: (para 3.2 at page 49, A3(b) claim form at page 15) asking for a discussion with the line manager, the second respondent, about her medical condition in response to the first respondent’s email of 06 March 2020, which arose in consequence of her disability.[218]We also considered that the claimants’ request for a meeting to discuss the Yallop email had itself brought forward the dismissal. We were not persuaded that the second respondent was going to dismiss on that day, with no meeting invitation, no script, no draft letter, no HR person present. It seemed to us that there were facts from which we could reasonably conclude that the second respondent brought forward the dismissal when he realised that the claimant was going to ask about adjustments in respect of her medical issues. Having such a meeting with the claimant might derail what was perceived to be a relatively low risk dismissal.[219]Essentially the second respondent’s case as to why he had the meeting that day was that it was the first available date they were both in the office and after the claimant had completed some necessary pieces of work. That explanation did not persuade us that the claimant’s request for a meeting about her medical condition did not play a material role in the fact that that the second respondent decided to go ahead with the dismissal that day. Even allowing for the fact that the first respondent appeared to operate in a very documentlight way in relation to HR matters and the apparent perception that this was a low risk dismissal, it seemed to us that the respondents would have been likely to have wished to reduce risk by, for example, including an HR adviser and note taker and/or having a prepared dismissal letter if the second respondent had not been seeking to pre-empt a discussion about the claimant’s medical condition in the context of the Yallop email.[220]We upheld this claim to that extent. Issue: d. The claimant says the ‘something’ being: (A4, A6, B1 and B2(j) claim form at page 15 and 16) her ignored grievance and appeal letter dated 11 March 2020 and 23 March 2020 respectively, sent to the respondent which alleges the protected act, disability discrimination, which arose in consequence of her disability. The unfavourable treatment being the respondent’s failure to act and investigate the allegation of discrimination following dismissal, despite providing appeal rights.[221]This was essentially a claim of a type not infrequently brought by claimants under section 15 (which can be a difficult section even for legal advisers to interpret correctly) but which does not necessarily logically fit within the structure of the section. Essentially it is a claim that because the claimant brought a grievance about disability discrimination, the respondents failed to consider her grievance.[222]We concluded that a grievance and an appeal against a dismissal which in itself arose because of disability could themselves be something arising from disability (having regard in particular to the authority of T-Systems Ltd v Lewis).[223]We did not consider, however, that there were facts from which we could reasonably conclude that the reason the respondent did not consider the grievance or the appeal against dismissal was the fact that she had brought such a grievance and an appeal. It seemed to us that in looking at causation, one had to consider what would have happened if no appeal and no grievance had been presented. In that situation the respondent would not have considered the grievance and the appeal because there would have been no grievance and appeal to consider.[224]In any event, we were satisfied by Ms Yallop’s explanation, which seemed to us on this occasion to be entirely consistent with what the respondents’ witnesses described as their ‘agile’ mode of doing business – they did not do things which they did not perceive they were obliged to do.[225]We did not uphold this claim. 2. Automatically unfair dismissal for taking an appropriate step in a health and safety case (s100(1)(e) ERA 1996) Issue:a. Was the reason or principal reason for dismissal that, in circumstances of danger which the claimant reasonably believed to be serious and imminent, she took appropriate steps to protect herself?b. The “step” relied upon (para 7.1, page 51) is “asking for a discussion with the line manager, the second respondent, about her medical condition which she was very concerned about.”[226]The first question for the Tribunal was whether there were circumstances of danger. We considered that there undoubtedly were circumstances of danger in London in early March 2020. The situation was that the pandemic was rapidly developing and there were rapidly increasing numbers of people affected by the virus, in London in particular.[227]We also consider that the claimant reasonably believed the danger to be serious and imminent. The guidance she refers to as available at the time was pointing to particular risks to those with underlying conditions, including respiratory conditions, and to the desirability of those people working from home. The claimant was concerned about travelling on public transport to work in an open plan office in central London.[228]The respondents sought to suggest that asking for a meeting to discuss the situation could not amount to the taking of an appropriate step. It seemed to us that it clearly did amount to a step and probably to the most obviously appropriate and reasonable step the claimant could have taken in the circumstances, giving her employer the opportunity to understand her concerns about the danger and to consider how best to minimise it.[229]It will be apparent from our findings above that we considered that the claimant’s request for the meeting precipitated a dismissal which would have happened in the next days or weeks in any event.[230]We concluded, having invited further submissions from the parties on this point, that in the circumstances the reason or principal reason for dismissal was still the reason we have identified above – the perception that the claimant was ‘not a Starling person’ because of a combination of factors which included her absences and periods of working from home and also some perceived work
Issues
[231]We did not uphold this complaint 3. Detriment for taking an appropriate step in a health and safety case, (s 44(1)(e) ERA (now s 44 (1A) (b) ERA)) Issue:a. Was the claimant subjected to a detriment on the ground that, in circumstances of danger which the claimant reasonably believed to be serious and imminent, she took appropriate steps to protect herself?b. The “step” relied upon (para 7.1, page 51) is “asking for a discussion with the line manager, the second respondent, about her medical condition which she was very concerned about.”c. The detriment (at para 7.4.1 and 7.4.2, page 51) is alleged to be the respondents “retaliated against the claimant….by subjecting her to instant dismissal” and “deliberately failed to have a separate meeting with the claimant to specifically discuss her health and safety concerns.”[232]We have already concluded that the claimant did take an appropriate step in circumstances of danger which she reasonably believed to be serious and imminent. And we have concluded that her dismissal was advanced in time because she took that steps. We are satisfied that being dismissed earlier than she otherwise would have been dismissed was a detriment to the claimant.[233]We upheld this claim. 4. Victimisation (s.27(1)(a) and s.27(2)(d)) EqAa. Was the claimant victimised by the respondents by subjecting the claimant to a detriment because the claimant did a protected act by making an allegation that the respondents have contravened the Equality Act?b. The claimant says the protected act being (at 9.1.1, page 53 and A4, A6, B1 and B2(j) claim form at page 15 and 16): “making an allegation the respondents were in breach of the Equality Act 2010 within her grievance and appeal letter dated 11 and23 March 2020,” namely disability discrimination.c. The claimant says the detriment being failure to act and investigate the allegation of discrimination following dismissal, despite providing appeal rights, and subjecting her to further unfavourable discriminatory treatment.[234]The claim of victimisation was limited to the failure to investigate the claimant’s allegations of discrimination in her grievance and appeal.[235]The claimant’s grievance and appeal letter included allegations of breaches of the Equality Act 2010 and was clearly a protected act.[236]Again, we essentially accepted Ms Yallop’s account of why she did not take action on the grievance / appeal. It seemed to us that the respondent was not minded to do any work it did not feel to be necessary. There were no facts from which we could reasonably conclude that had the claimant presented a grievance / appeal with other types of allegation, but no discrimination allegations, and had she also instigated without prejudice discussions, the respondents would have dealt differently with her grievance / appeal.[237]We did not uphold this complaint. Remedy hearing[238]The parties will receive a notice of hearing for a case management hearing to give directions for a remedy hearing. 05/09/2022-[1]The claimant’s past loss of earnings.a. Would the claimant’s employment with the respondent have come to an end lawfully at some point between her dismissal and the date of the remedy hearing, absent the unlawful discrimination found by the Tribunal to have occurred?b. Is it necessary to consider the above (i.e. what would have happened absent of discrimination) given loss resulted directly and naturally from the respondents’ discrimination, there is a paucity of evidence and the material reason for the dismissal was tainted with discrimination?c. Did the claimant suffer losses of earnings and benefits (including loss of employee shares, a new company wide employee benefit introduced by the respondent) caused by the discrimination found?d. If so, for what period and amount?[2]The claimant’s future loss of earnings.a. How long would the claimant’s employment have continued had the unlawful discrimination not occurred?b. Had the unlawful discrimination not occurred, what future employment would the claimant have obtained and at what salary?c. Has the claimant lost the opportunity to progress her career in banking?d. How would the claimant have progressed in her career? Would she have progressed her career to head of legal and then general counsel as planned and what would she have been paid in those roles?e. Do the principles, including career loss, stigma loss, loss of chance, as per Chagger v Abbey National apply?f. How long will it take for claimant be put back in the position had the unlawful discrimination not occurred?g. How long would the Claimant have continued in her role at the Respondent absent any discrimination?[3]Mitigation:a. Were the steps taken by the claimant to mitigate her losses reasonable?b. Were the c.300 job applications since date of dismissal to date (including at a lower grade), self-employment via two businesses and other supplementary income, reasonable steps taking into consideration dismissal occurred at the peak of the pandemic?c. If not, from what date would she have been likely to find new employment at a similar rate of pay? Injury to feelings:[4]What award is appropriate to compensate the claimant for the injury to her feelings caused by the discrimination found? Aggravated damages.[5]Was there high handed, malicious or oppressive behaviour?[6]If so, what level of compensation is appropriate? Other losses:[7]What other losses should be awarded:a. Handling of bundle re. claimant and her parents’ data, in view of claimant’s complaint upheld by ICOb. Company secretary qualification feesc. Pre-business start-up funds and expenses from claimant’s own fundsd. Earnings evaluation report fees Preparation time order:[8]Is a preparation time order as per rule 75(2) The Employment Tribunal Rules of Procedure, Schedule 1 applicable based on the time spent by the claimant working on the case whilst not legally represented?[9]If so, what amount is appropriate? Interest on compensation:[10]What is the interest on claimant’s losses up to the date of the remedy hearing? The date of the discrimination was 9 March 2020 and ET remedy hearing is on 10 February 2023 (3 years less 27 days = 1068 days). Is the mid-point therefore 534 days prior to the remedy hearing? Interest on Injury to feelings:[11]Should the date of discrimination start from was 9 March 2020 or from the date of the first act?; the ET remedy hearing is on 10 February 2023 (three years less 27 days = 1068 days, at 8%.) Interest on other losses/awards:[12]The interest runs from the mid-point date to the date of calculation. ACAS Uplift.[13]Was there a relevant ACAS Code of Conduct which ought to have been used?[14]If so, was there a failure to use such a Code of Conduct?[15]If so, is it appropriate to increase any award and to what extent (up to 25%). Recommendations[16]What recommendations the Tribunal should make regarding the respondents. 2. We note that there were many areas where the respondent did not mount a detailed challenge to the figures put forward in the claimant’s schedule of loss. Findings The hearing 3. The remedy hearing was initially listed for one day. It rapidly became apparent that was insufficient time even for evidence and submissions to be completed and the matter went part heard for a further two days. 4. We had a remedy bundle of 750 pages and were also referred to documents in the original trial bundle of 1368 pages. We read those documents which we were taken to. 5. We heard further evidence from the claimant and from the second respondent and also from Mr Roundhill on behalf of the respondents. 6. Ultimately we had to reconvene in August 2023 to continue our deliberations. This was because, after our initial deliberations, it seemed to us that we required submissions on any discount for accelerated receipt, the incidence of tax on gross loss of earnings figures and how we should gross up the figure we arrived at for compensation to reflect the tax payable by the claimant. The parties made written submissions and neither party wished to make further oral submissions. The claimant added some further submissions on other matters which had already been fully canvassed with the parties and we did not take these into account in fairness to the respondent. 7. It is convenient to record our findings of fact under headings for the different issues which we had to decide together with relevant findings from our liability judgment. How long would or might the claimant’s employment have continued? 8. The respondents’ case was that the first respondent would have dismissed the claimant lawfully for capability reasons within two months of her actual dismissal. 9. We made various findings of fact about the claimant’s performance and the respondents’ concerns about her performance as part of our findings on liability and it was necessary for us to consider the impact of these findings when looking at the issue of whether there would have been a nondiscriminatory / otherwise lawful dismissal for capability. 10. Our primary relevant findings from the liability hearing were: - Para 46: There was no good evidence that the claimant was not completing her tasks. It may be that the second respondent was hoping the claimant would build the role in a way which did not happen but in the absence of documented meetings between the claimant and the second respondent, it is difficult for the Tribunal to have a sense of whether the second respondent was conveying to the claimant what his expectations were. It appeared from the claimant’s evidence he was not doing so, and in the absence of any documentary evidence to suggest any substantial feedback, we concluded that he was not. - Paras 48 – 50: On 30 December 2019, the claimant received a letter from Ms Boden about her salary increase: I would like to advise that in recognition of your outstanding contribution to Starling, your salary will increase to £76,000 with effect from the 1st of January 2020. Please be aware that all decisions affecting salary are made at the Company‘s discretion; this is not to be seen as setting a precedent and no future obligation should be understood from this. Please also be advised that matters relating to salary are confidential in nature and should not be discussed with other employees. Thank you for your hard work to date. 49. The second respondent said that he gave all of his team a pay rise that year and had decided to review all salaries at the same time of year irrespective of when the person joined. He said that the claimant’s increase was the lowest in team (apart from one person set a specific target which that person then met) and significantly less than a pro rated 5%. He said that the reference to ‘outstanding contribution’ was because it was a standard letter used for all employees receiving a salary increase. 50. We did not see any letters for other employees which confirmed that the letter was a standard template. We could not understand why, if the claimant’s performance had genuinely led to her receiving a reduced salary increase, the respondents took no care to convey that in the letter and or to convey to the claimant that there were issues with her performance. Ultimately, we were not able to accept that there were any significant performance concerns by December 2019. For convenience, we set out in a single section later in this Judgment, the chronology of performance concerns asserted by the respondents. - Para 51: In January 2020, the claimant said that Ms Boden told her in conversation ‘you are doing such a good job’. We were given no context for this remark and did not know what it referred to specifically but it seemed to us unlikely the remark would have been made in any context if the claimant’s performance had been felt to be seriously of concern - Paras 59 – 60 59. In Ms Swain’s witness statement, Ms Swain said that Ms Fox told her that her primary reason for leaving was that she found the claimant difficult to work for. Ms Swain conducted an exit interview which was informal and no notes were taken. 60. We concluded that Ms Fox very likely told the claimant that she was leaving for the reasons the claimant recorded. She may well have told the second respondent and Ms Swain that she was unhappy about her relationship with the claimant. In the absence of any recording of concerns or investigation or discussion with the claimant, we were unable to conclude that any problem with the claimant’s relationship with Ms Fox could fairly have been considered by the respondents to be the claimant’s fault. - Paras 94 - 110. Performance concerns to January 202094. We heard evidence from both parties about what the respondents said were the concerns about the claimant’s performance. Up until Janaury 2020, these were as below. November 201995. The second respondent said that an email exchange which we were shown indicated a failure by the claimant to know and understand the identity of director. He said that there was a fundamental lack of knowledge or understanding of vital information; he said ‘if I am honest I would say that from this point onwards I began to question whether she should stay with the bank’. He did not investigate the matter with her or raise his concern. The claimant said in evidence that she knew who the directors were as she included them in every set of board meeting minutes. Looking at the email exchange it appeared to us that the second respondent had misread a short email by the claimant which was a bit sloppily expressed but that she did know who the directors were and this would have been apparent if the second respondent had raised the matter with her.96. We saw a redacted document produced by the respondents which looked like this: …97. Ms Yallop’s evidence was that this document was created in late 2019, as part of a discussion about succession planning with Ms Boden and the second respondent. The second respondent did not recognise the document. It is a graph of employees’ performance and attitude. It was said by the respondents to show that the claimant (‘GR’) was below average in relation to performance. We were not persuaded that was the case because the ‘mid’ in brackets seemed to suggest she was in the middle. Ultimately we did not feel we could derive very much from the this document, given how little we were told about how it was formulated and what information had fed into it. December 2019 board minutes and feedback98. The second respondent gave evidence that key policies for approval were not included in the minutes, timings did not add up and attendees were wrong. He said that he discussed these issues with the claimant, it appeared in early January. The claimant said that she did not recollect a discussion to that effect. We were shown a handwritten note made by the second respondent which records the issues. It was not part of the claimant’s HR file. In evidence the second respondent said that he wrote the issues on a piece of paper and then must have put the piece of paper in a drawer.99. We accepted that the second respondent had some concerns about the minutes but we had no clear evidence as to whether those concerns were justified. Reporting work in December 2019100. The claimant had been assigned work on something called a close controllers report. The second respondent said that she did not progress the report and did not come back to him as her line manager to say either she did not understand the request or have capacity to complete it; she just did not do it or discuss it.101. The claimant’s evidence was that this report was not due until 31 March 2020. It was not a large piece of work and would not need to have been started by 9 March 2020. The second respondent did not raise the matter with her but she approached him about it in January and February 2020. She was told to concentrate on other matters. The work was ‘on her radar’ and in her calendar and would not have been forgotten.102. We accepted the claimant’s account. It was clear that the issue was not raised with the claimant at the time and it seemed improbable to the Tribunal that the second respondent would not have mentioned to the claimant an important piece of work which he genuinely felt was being neglected. Errors in January 2020 board pack103. There was a change to the name of the file references for some board papers made on the day of the board meeting which the second respondent said would reflect poorly on him as company secretary if they were not correct. He wrote to the claimant: You just changed all the refs on my docs in the board pack? Change them back URGENTLY 104 .The claimant wrote back: Sorry was going by your board approvals table I’ll change now 105. The claimant’s evidence was that she was trying to support with the board pack process by naming the electronic files so they aligned with references in the board approvals table. She did not change the documents themselves. 106. It appeared to the Tribunal that the claimant had attempted to take a proactive step which the second respondent felt was a wrong step. It was clearly something which irritated the second respondent at the time but it was not a large issue. End January 2020 power of attorney document 107. The second respondent said that this should have been a very straightforward task but what the claimant produced was very poor; there were drafting errors and careless mistakes. He said that he took a significant amount of time to go through the document with her to explain what was wrong. 108. The claimant told the Tribunal that the issues were with the existing template and the second respondent did not raise concerns with her. 109. Again, in the absence of documentary evidence, we concluded that the second respondent had been dissatisfied with the document but had not explicitly raised his concerns with the claimant and there was insufficient evidence before us to determine whether the concerns were significant. 110. Two other general performance matters were raised by the respondents. It was suggested that the claimant had failed to work on a company secretary handbook and failed to work on employee share schemes. There was such a paucity of evidence from the respondents on these matters, both of any deficiency and that any issue was raised with the claimant, that we were unable to conclude that there were any genuine significant performance concerns about these matters. - Paras 120 – 127:. See in particular: 120. In early February 2020, the claimant was asked to work on a non disclosure agreement. The second respondent said that these were short documents which should have taken an hour but took the claimant several hours. When she did produce the NDA, there was no explanation or rationale for changes made to a template so the document was of little help. He said that in respect of a further NDA, she spent an entire day drafting one from scratch; he said that this showed a lack of awareness that they had precedents which meant an NDA could be prepared in around 15 minutes. 121. We heard evidence from the claimant disputing what the second respondent said in some detail. There were no documented concerns raised and ultimately all we could conclude on this issue was that the second respondent had had some concerns about the NDAs which were not raised and explored with the claimant but we could reach no conclusion that these were justified. - Paras 128 – 141 - Para 212: We looked carefully at factors which might shift the burden of proof: -The second respondent’s attitude to ill health and working from home. The claimant said that his failure to respond to messages showed he did not approve of and lacked sympathy for her health problems. We did not fully accept the second respondent’s account that he trusted colleagues and was seeking not to pry into health issues. A total failure to respond to messages about ill health and the failure by a manager to express any concern or support to a subordinate on a significant number of occasions, seemed to us to be intended to discourage time off for ill health and working from home. The fact that he allowed working from home tacitly by not objecting to the occasions when the claimant worked from home to attend appointments did not change our impression that he was seeking to discourage the requests by not acknowledging them. - We considered that there was good evidence that the second respondent valued employees working long hours in the office. He was critical of the claimant for leaving work at the end of her contracted hours. That attitude seemed to us in these circumstances to align with an attitude of impatience with ill health absence. - The second respondent’s credibility was to some extent impaired for us by his improbable assertions about his memory. We did not accept his evidence about his notes of the dismissal meeting being almost verbatim and we were troubled by his assertions that he did not remember the claimant’s references to asthma and the occasion on 4 March 2020 when she said that she had to go home to work due to her cough as compared with his apparently detailed recall of work issues. - The lack of documentation at the time as to the reasons for deciding to dismiss the claimant and/or the discussions about her dismissal. - The fact that the claimant passed her probation and was awarded a salary rise and the fact that the documents evidencing those events make no reference to any problem with her performance, but in fact suggest her performance is good. What happened in the chronology after that was that she began to have time off for ill health and began to request to work from home due to appointments. - The total lack of any formal procedure in relation to the dismissal. - Paras 215 / 216: 215. We then had to look at the respondents’ explanation and consider whether we were satisfied that the somethings played no material part in the dismissal. The respondents’ explanation was that it was the claimant’s performance which led to her dismissal. The lack of process related to the fact that the claimant had less than two years’ service so there was felt to be no significant risk in dismissing her without a proper procedure. 216. We were not satisfied with the respondents’ explanation, bearing in mind the contextual facts we have set out above. We accepted that the second respondent may well have had some concerns and criticisms of the claimant (which he did not raise properly or explore with her and as to the substance of which there is a paucity of evidence). We did not accept that they were of such significance that on their own they would have led to the claimant’s dismissal at that point, particularly in view of the passing of probation and the salary rise. It appeared to us that the ill health absence and requests to work from home were part of a picture which included the claimant working her contractual hours and no more in the office and also a handful of work issues which together led the second respondent to decide that she was ‘not a Starling person’. 11. In essence we accepted that the second respondent was critical of the claimant and had some performance concerns but these were not raised with the claimant and there was a lack of evidence as to their substance. We concluded that they were not significant enough to have led to the claimant’s dismissal on their own. Further evidence from the second respondent at the remedy hearing 12. The second respondent’s evidence was that, had he not dismissed the claimant on 9 March 2020, he believed that he would have undertaken a formal capability process in conjunction with the first respondent’s People Team (HR function). He noted that the first respondent’s capability process did not contain timescales but he said he believed that two months would have been more than sufficient to assess whether the claimant’s performance had improved. He did not believe that the claimant’s performance would have improved during this period, given her performance up to that point. 13. The second respondent also gave evidence as to how the company secretarial work was covered during the period after the claimant’s departure. He said in general that the volume of work increased and asserted that the claimant would not have coped with the volume of work. 14. The second respondent’s evidence was that he covered the claimant’s work and that of Ms Fox himself up until 16 April 2020. He said that there was more work to do in that there were more board meetings. He said that the claimant took three days to do the minutes for each board meeting and would not have been able to complete this work in the initial period given the number of board meetings which took place. The second respondent had done the minutes himself for a little over a month. 15. The second respondent told the Tribunal that from 16 April 2020 much of the work the claimant had done was being carried out by an inexperienced member of staff, Ms Owen, with no company secretarial qualifications, who nonetheless worked to a higher standard than the claimant. 16. The second respondent gave evidence that there were 47 board meetings and resolutions in the course of a year and that the claimant would have spent 3.5 days attending and writing up minutes for each of these. This would have amounted to 3.5 days of every week in the year when the claimant was not on leave and she would not have been able to fit in the other work required by the role.
The hearing
[17]Under cross examination from the claimant, it appeared that there was significant exaggeration in the second respondent’s calculations. Even on his own evidence, not all of these were full board meetings; some were resolutions, It was also clear from documentary evidence that not all of these meetings were full half day meetings. Taking into account all of these factors, the time which would have been required to minute these meetings was very significantly less than the second respondent had suggested The claimant’s evidence was that she would not spend the entirety of three days working on minutes even for a full board meeting but that that was the period over which they would be completed, allowing time for executives to respond to her on points about which she had sought clarification.[18]The second respondent made repeated assertions that Ms Owen worked more quickly and to a higher standard than the claimant had done. We found this evidence problematic because it was clear that aspects of the second respondent’s evidence were exaggerated The second respondent said in his witness statement that Ms Owen created 750 documents over a particular period. He had looked in a document folder for documents ‘owned’ by Ms Owen to arrive at this figure. He said in his evidence in chief that the search ignored documents which were created by others.[19]On cross examination by the claimant, however, the second respondent accepted that Ms Owen had not created various of these documents and said that in many cases she had taken documents created by others and put them into something else, such as a board pack. It was difficult to understand what he had intended the Tribunal to understand by the evidence in his witness statement, which gave a very different impression.[20]The second respondent repeatedly contrasted Ms Owen’s performance with the claimant’s but the difficulty was that his assertions about the claimant’s performance were ones we had not found made out on the evidence we heard at the liability stage.[21]We found the second respondent’s evidence about Ms Owen and her superiority to the claimant unmeasured, exaggerated and overall unreliable. Insofar as he was adducing evidence of the contrast between the two to support a case that the claimant’s performance would have led ultimately to her lawful dismissal, we were unable to give it much weight.[22]We accepted the second respondent’s evidence that the first respondent was experiencing significant growth and that the company secretarial team was also expanded. The second respondent started recruiting in early 2021; he appointed two individuals, one as a deputy company secretary and one as senior assistant company secretary. One started in September 2021 and the other in December 2021. One was employed on a salary of £120,000 and the other £100,000. Prior to that, the second respondent had enlisted more junior support for Ms Owen in the summer of 2021. What would the claimant’s earning levels have been if she had not been dismissed by the first respondent? What period will elapse before she matches those earnings?[23]It is relevant to record some facts about the claimant’s background and career. She qualified as a solicitor in November 2010. She trained in a high street firm and worked in immigration, family, commercial property and wills. From 2013, she sought to move into banking work. She worked for various bodies including the Financial Ombudsman Service for relatively short periods of time and then joined Vanquis Bank in 2015 as a regulatory lawyer. In 2018 she moved to a role with a building society as a deputy company secretary and solicitor. In May 2018 she started training for a company secretary qualification and left her role with the building society in March 2019 to concentrate on studying for an exam in June 2019. It was during this period when the claimant was taking what she described as ‘study leave’ that she applied for the role with the first respondent. She said that the relatively short period she had taken out of work occurred when the market was strong.[24]The claimant’s intention in seeking a company secretary qualification was to progress towards general counsel and company secretary positions.[25]The claimant had commissioned a report from an employment consultant, Mr Paul Jackson, dated 16 October 2022. We saw Mr Jackson’s report but did not hear oral evidence from Mr Jackson. Mr Jackson analysed the claimant’s career and gave an opinion about her career trajectory absent the unlawful conduct of the respondents.[26]Mr Jackson also provided data taken from a number of sources as to earnings bands for solicitors in financial services roles, for in-house legal roles and for in-house legal and company secretarial roles. No challenge was made to the reliability of this data.[27]Mr Jackson expressed the opinion that, absent the claimant’s dismissal by the first respondent, she would have been well-placed to develop her career and eventually progressed to head of legal and general counsel roles. He prepared a table projecting her career trajectory and earnings up to 2034.[28]The second respondent raised questions in his statement about whether Mr Jackson was an appropriate witness, however we did not understand from the submissions made on behalf of the respondents that there was a material attack being made on Mr Jackson’s integrity and credibility as a witness. He does not have a particular specialism in the financial services sector.[29]The claimant adduced some evidence of approaches she received from recruiters for roles whilst employed by the first respondent. These included a head of legal role and roles around the £110,000 salary mark.[30]It was relevant to make findings as to what the claimant did after her dismissal to seek new work and replace her lost income.[31]We saw evidence of a large number of job applications (in the region of 300) made by the claimant since her dismissal. These were applications for a range of roles, including in house counsel roles, deputy company secretary roles and junior company secretary roles. Some roles were part-time and some were at a lower level of earnings than the claimant had enjoyed at the first respondent. The claimant has been invited to a very small handful of interviews in the period since her dismissal.[32]The claimant registered with a number of relevant recruiters specialising in the company secretarial sector and we saw documentary evidence of her approaches to recruiters.[33]The claimant was dismissed by the first respondent at the outset of the pandemic and discovered that there was little recruitment taking place. She found that some recruiters had been put on furlough.[34]The claimant obtained a voluntary company secretarial role for the Fostering Network in July 2020 to develop her skills and demonstrate that she was still undertaking company secretarial work.[35]As time went on, the claimant applied for roles with salaries as low as £40,000 per annum. On one occasion in July 2020, the claimant said that a recruiter quizzed her as to how she came to leave the first respondent. She said that she had been dismissed after raising a health and safety matter She told the Tribunal that she did not hear from that recruiter again.[36]In July 2020, the claimant started a business, L&GHub, marketing her services as a legal and governance consultant. She obtained her first client in November 2020. She continued to apply for employed roles.[37]In August 2020, the claimant attended an interview for an assistant company secretary role and was asked her reasons for leaving the first respondent. She was not successful at that interview.[38]During late 2020 and early 2021 the claimant made more direct applications as her attempts to obtain employment through recruiters had not been successful. The market remained poor into 2021.[39]In January 2021 the claimant was interviewed unsuccessfully for a head of legal position. She was asked about and disclosed how she came to leave the first respondent’s employment.[40]On 8 April 2021, the respondents’ solicitors sent hard copy documents in the claimant’s case to the wrong person. That person contacted the claimant saying that it appeared that documents in the claimant’s case had been muddled with documents in that individual’s case during collation.[41]That same day the claimant was contacted about her case by a reporter at The Lawyer. The respondents were also contacted and, like the claimant, declined to comment about the case. There was reporting of the case thereafter and the articles led, the claimant says, to recruiters reviewing her LinkedIn profile. She believes that her failure to get some roles has been caused by potential employers finding these articles on an internet search of her name.[42]The claimant told us that in the sectors she was seeking work, unemployment and previous proceedings would both attract stigma.[43]In order to try and increase her earnings, the claimant started a law firm. She first got regulatory approval for her firm on 16 August 2021 and obtained professional indemnity insurance from 10 September 2021. She had developed a small stream of clients and had undertaken immigration work only although the firm advertised itself as conducting immigration and employment work. Evidence as to the claimant’s earnings from this work and from her other business was provided in the bundle and not subject to challenge by the respondents.[44]The claimant told the Tribunal that setting up these businesses had involved her acquiring and instructing a variety of support staff (on a consultancy basis) and putting together necessary policies and procedures. She had obtained training on accounting matters to enable her to run the businesses. She has significant regulatory and accounting functions to undertake in respect of her firm as well as marketing and client acquisition and it is taking significant time and effort to run the firm and obtain work.[45]The claimant had also obtained a part-time law lecturing role at a university in London and we understood from Mr Jackson’s report that she was earning approximately £12,000 net per annum for this work.[46]The respondents say that the data breach was accidental. The respondents’ solicitors apologised to the claimant and explained that the data breach had come about because they had had a skeleton staff operating in the office to deal with hard copy documents for reasons related to the pandemic. Pages from the claimant’s bundle had accidentally been included in a bundle for another matter. They arranged to collect the document from the individual who accidentally received them and reported the breach to the ICO. Mitigation: other evidence[47]The respondents led evidence from Mr Roundhill, who is a chartered company secretary who runs a specialist recruitment consultancy for company secretarial and governance professionals. He said that the market he worked in had always been candidate led. He said that the market had slowed in February 2020 and that once lockdown occurred most permanent or interim vacancies were suspended or withdrawn and some recruiters went on furlough.[48]Mr Roundhill said that the market started to recover in late summer 2020. He said that the market in 2021 was ‘buoyant and fast paced’ and there was significant candidate movement. He said that in 2022 companies had been frustrated by the reduction in the availability of well qualified and experienced candidates. The shortage had increased salary demands by candidates. The interim market had also increased as companies had to cover gaps when permanent staff left.[49]Ms Yallop, chief people officer of the first respondent, had prepared a review of the company secretarial market, which we were provided with. To prepare her review she had read a selection of articles written by specialist recruitment professionals. Her conclusion was that the market for deputy company secretary roles was depressed in 2020 but bounced back from 2021 onwards, with 2021 described by recruiters as an ‘epic year’. Ms Yallop attached a table of jobs and job seekers for deputy / assistant company secretary roles in the Greater London area between March 2020 and early 2022. This showed an increase in vacancies over the period. It also showed that the ratio of job seekers (defined as people who had clicked on the advertised posts) was many times the number of roles available (job seeker numbers in the thousands whereas roles were in the tens, with a high of 115). She also included some salary survey figures from different organisations for deputy company secretarial roles.[50]The claimant told us that the unlawful acts we found had been deeply upsetting and painful. She ascribed some of her upset feelings to matters prior to her dismissal which were not substantive complaints, including the second respondent’s treatment of her in relation to health matters.[51]The claimant was in a state of shock after she was dismissed. She told the Tribunal that she sat outside Liverpool Street Station crying uncontrollably. She felt she had lost her career and had undergone a gruelling litigation process. Assorted other costs[52]The claimant was seeking business start-up costs which she provided evidence of in the bundle. These included SRA costs, professional indemnity insurance and so forth. Submissions[53]We had detailed written and oral submissions from both sides and we considered these with care but refer to them below only insofar as is necessary to explain our conclusions. Law Compensation for financial loss in discrimination cases
Law
[54]The measure of loss is tortious with the effect that a claimant must be put, so far as possible, into the position that she would have been in had the act of discrimination not occurred (Ministry of Defence v Cannock [1994] IRLR 509, De Souza v Vinci Construction UK Ltd [2017] EWCA Civ 879. Compensation for discrimination is uncapped.[55]Where the act complained of is a discriminatory dismissal, the tribunal will have to decide whether the complainant would have been dismissed in any event if there had been no discrimination (Abbey National plc v Chagger [2009] ICR 624). The duty to mitigate loss applies. Future loss[57]We were assisted by the summary of principles in Secretary of State for Justice v Plaistow UKEAT/0016/20/VP, per Eady J: 57. When considering compensation for loss of earnings, the ET is not making a determination of fact, as such; rather, it is required to make its best assessment as to what the position would have been, but for the unlawful conduct, having regard to all the material available (see Cannock at p 951). In Vento v Chief Constable of West Yorkshire Police (No. 2) [2003] ICR 318, the Court of Appeal explained the exercise thus to be undertaken by the ET, as follows: “33. … this hypothetical question requires careful thought before it is answered. It is a difficult area of the law. It is not like an issue of primary fact, as when a court has to decide which of two differing recollections of past events is the more reliable. The question requires a forecast to be made about the course of future events. It has to be answered on the basis of the best assessment that can be made on the relevant material available to the court. …[58]So, when assessing future losses, the ET is required to focus on the degree of chance; it is not engaged upon a determination on the balance of probabilities (see Abbey National plc v Chagger [2010] ICR 397, CA at paragraphs 76-78). In carrying out that assessment, the weight to be given to the material available will be for the ET, and will inevitably be case-specific. In Cannock, the EAT placed some emphasis on the statistical material available; in Vento (No.2), the Court of Appeal agreed such evidence could be relevant but also allowed that an ET might be “plainly and properly influenced by the impression gained by it in seeing [the Claimant] give evidence at the lengthy liability and remedies hearings” (paragraph 40, Vento (No.2)). In any event, where an ET properly undertakes the assessment required of it, its decision will not be susceptible to challenge unless it can be shown to be perverse: an appellate tribunal will not be entitled to interfere with the ET’s conclusion simply on the basis that it would itself have reached a different conclusion on the same materials (see paragraph 38, Vento (No.2)).[60]Further guidance as to the approach to be adopted in assessing future loss of earnings was provided by the Court of Appeal in the case of Wardle v Credit Agricole Corporate and Investment Bank [2011] ICR 1290 (see the Judgment of Elias LJ, with whom the other members of the Court agreed). In submissions in the present case, both parties have referred to the summary of that guidance as set out in Harvey on Industrial Relations and Employment Law Division L [881.01], as follows: “(1) where it is at least possible to conclude that the employee will, in time, find an equivalently remunerated job (which will be so in the vast majority of cases), loss should be assessed only up to the point where the employee would be likely to obtain an equivalent job, rather than on a career-long basis, and awarding damages until the point when the tribunal is sure that the claimant would find an equivalent job is the wrong approach; (2) in the rare cases where a career-long-loss approach is appropriate, an upwards-sliding scale of discounts ought to be applied to sequential future slices of time, to reflect the progressive increase in likelihood of the claimant securing an equivalent job as time went by; (3) applying a discount to reflect the date by which the claimant would have left the respondent's employment anyway in the absence of discrimination was not appropriate in any case in which the claimant would only voluntarily have left his employment for an equivalent or better job; and (4) in career-long-loss cases, some general reduction should be made, on a broad-brush basis (and not involving calculating any specific date by which the claimant would have ceased to be employed) for the vicissitudes of life such as the possibility that the claimant would have been fairly dismissed in any event or might have given up employment for other reasons.”[61]Although Elias LJ in Wardle opined that career-long-loss cases would be “rare”, he made clear that was not because “the exercise is in principle too speculative”: “50. … If an employee suffers career loss, it is incumbent on the Tribunal to do its best to calculate the loss, albeit that there is a considerable degree of speculation. It cannot lie in the mouth of the employer to contend that because the exercise is speculative, the employee should be left with smaller compensation than the loss he actually suffers. Furthermore, the courts have to carry out similar exercises every day of the week when looking at the consequences of career shattering personal injuries. Nor do I accept a floodgates argument. The job of the courts is to compensate for loss actually suffered; if in fact the court were to conclude that this required an approach which departed from that hitherto adopted, then we would have to be willing to take that step. 53. Exceptionally, a tribunal will be entitled to take the view on the evidence before it that there is no real prospect of the employee ever obtaining an equivalent job. In such a case, the tribunal necessarily has to assess the loss on the basis that it will continue for the course of the claimant's working life. Chagger is an example of such a case. By the time the tribunal came to assess compensation in his case he had already been out of a job for some years. The evidence was that he had made every effort to obtain employment in his chosen field, having made countless applications for new employment. There was a suggestion that he had been stigmatised in the eyes of other employers as a result of the manner of his dismissal. He had taken reasonable steps to mitigate his loss by going into teaching. In these circumstances the Tribunal was entitled to conclude that he had suffered permanent career damage and should be compensated accordingly. Where such a loss is established, a tribunal has to undertake that task, however difficult and speculative it may be.”[62]In Wardle, the ET had approached the question of future loss of earnings on a career-long-loss basis, but then reduced the overall sum that would otherwise have been due: first, to reflect its finding that there was an 80% chance that Mr Wardle would have left his employment after a further couple of years in any event; second, to reflect its finding that there was a 70% chance that Mr Wardle would have returned to equivalent employment after a further year. Given the latter finding, the Court of Appeal held that the ET had been wrong to approach compensation on a whole career basis but, even had it been entitled to calculate loss over Mr Wardle’s whole career, observed that the ET would then: “56. … have had to assess what the claimant would have been likely to earn over that period had he not been treated unlawfully compared with what he is now likely to earn. The difference would then be subject to reductions to reflect the vicissitudes of life (eg the possibility that he might have been fairly dismissed anyway or the risk that he would die or might have to retire early) …”[63]As Elias LJ concluded, that was not done by merely applying a reduction to reflect the ET’s finding that there was a 70% chance of Mr Wardle’s obtaining equivalent employment within three years: having recognised that Mr Wardle had a 70% chance of obtaining equivalent employment within three years, the ET’s decision ought also to have allowed for the yet greater chance that he would mitigate his losses over the years that would then follow. On that basis, an ET would need to consider applying an upwards-sliding scale of discounts to sequential future slices of time, to reflect the progressive likelihood of securing an equivalent job over the years. 58. We note also the observations in Chagger which seem to us to have application to the facts of this case; we bear in mind that the fact that there has been a discriminatory dismissal means that the claimant is in the job market as a time and in circumstances not of her own choosing. It is generally easier to obtain work from a position of employment. Employers may be reluctant to employ someone who has been out of the job market for a significant period. An employee may also be stigmatised by having brought proceedings, which may have an effect on her chances of obtaining future employment. Mitigation 59. In Cooper Contracting Ltd v Lindsey 2016 ICR D3, EAT, Langstaff P summarised a number of principles drawn from the earlier case law that should be used to guide tribunals when considering whether there has been a failure to mitigate loss:(1) The burden of proof is on the wrongdoer; a Claimant does not have to prove that he has mitigated loss.(2) It is not some broad assessment on which the burden of proof is neutral. I was referred in written submission but not orally to the case of Tandem Bars Ltd v Pilloni UKEAT/0050/12, Judgment in which was given on 21 May 2012. It follows from the principle — which itself follows from the cases I have already cited — that the decision in Pilloni itself, which was to the effect that the Employment Tribunal should have investigated the question of mitigation, is to my mind doubtful. If evidence as to mitigation is not put before the Employment Tribunal by the wrongdoer, it has no obligation to find it. That is the way in which the burden of proof generally works: providing the information is the task of the employer.(3) What has to be proved is that the Claimant acted unreasonably; he does not have to show that what he did was reasonable (see Waterlow, Wilding and Mutton).(4) There is a difference between acting reasonably and not acting unreasonably (see Wilding).(5) What is reasonable or unreasonable is a matter of fact.(6) It is to be determined, taking into account the views and wishes of the Claimant as one of the circumstances, though it is the Tribunal's assessment of reasonableness and not the Claimant's that counts.(7) The Tribunal is not to apply too demanding a standard to the victim; after all, he is the victim of a wrong. He is not to be put on trial as if the losses were his fault when the central cause is the act of the wrongdoer (see Waterlow, Fyfe and Potter LJ's observations in Wilding).(8) The test may be summarised by saying that it is for the wrongdoer to show that the Claimant acted unreasonably in failing to mitigate.(9) In a case in which it may be perfectly reasonable for a Claimant to have taken on a better paid job that fact does not necessarily satisfy the test. It will be important evidence that may assist the Tribunal to conclude that the employee has acted unreasonably, but it is not in itself sufficient. 60. The Tribunal has the power to award compensation to an employee for injury to feelings resulting from an act of discrimination by virtue of sections 124(5) and 119(4) of the Equality Act 2010. The purpose of the award is to compensate the complainant for the anger, upset and humiliation caused by the discrimination. As set out in Prison Service v Johnson [1997] IRLR 162: - Awards should be compensatory and just to both parties; - Awards should not be too low as this would diminish respect for the antidiscrimination legislation; - Awards should bear some broad general similarity to the range of awards in personal injury cases; - In exercising their discretion tribunals should remind themselves of the value in everyday life of the sum they had in mind by reference to purchasing power or earnings and should bear in mind need for public respect for the level of awards made. 61. In determining the amount of the award, we are required to follow the Vento guidelines in place at the date of presentation of the claim. These were: Lower band: £900 - £9,000 Middle Band: £9,000 - £27,000 Upper band £27,000 – £45,000. 62. We can also gain some assistance from quantum reports in cases considered by other tribunals. The respondents referred us to the following summaries from Harvey: Ms C Nicholson v Desire Cakes and Shakes Ltd (Leeds) (Case no 1802349/2021) (26 July 2021, unreported) — ITF £5,000 N, a store operator in a dessert shop, paid £150 weekly, was diabetic and unable to take her midnight insulin injection at work due to the conditions in which the medication had to be stored. After 2½ months' employment, arrangements the respondent had deployed to get her home after her shift finished at 11pm failed resulting in her being admitted to hospital. She returned to work the next day, but the transport arrangements failed again. Later that day she was dismissed by text message stating: 'Cheryl I am sorry I can't offer you any more shifts, I tried to call you and so did Asad. Due to you needing to leave early, leaving staff alone to clean and making other staff uncomfortable. I think you need to find a job more suitable to your health requirements.' The tribunal held that this dismissal was a case of direct disability discrimination. N was distressed and embarrassed to be sacked in this way, having had an exemplary work record throughout her life and was prescribed antidepressants for a period by her GP. Taking account of this but factoring in the fact that she had only three months' service, had been able to quickly recover and secure alternative work, but was now unable to work for reasons unrelated to her dismissal, the tribunal concluded that an award at about the midpoint of the lower Vento scale was appropriate. Bainbridge v Atlas Ward Structures Ltd (Hull) (Case No 1800212/2012) (19 June 2012, [2012] EqLR 842) — ITF £6,000 The claimant was a welder whose wife was disabled. He suffered disability discrimination by association when he was selected not to have his temporary contract renewed because of the amount of time he had taken off at short notice to look after his wife. This was essentially a one-off act of discrimination but with serious continuing consequences. It added to the claimant's already difficult domestic circumstances a level of financial burden and worry which considerably increased his stress levels. That affected his self-confidence and eating and sleeping patterns although he did not require medical assistance. An award at the upper end of the lower adjusted Vento band was appropriate. Aggravated damages 63. We were much assisted by guidance in Commissioner of Police of the Metropolis v Shaw UKEAT/0125/11/ZT: Criteria. The circumstances attracting an award of aggravated damages fall into the three categories helpfully identified by the Law Commission: see para 16(2) above. Reviewing them briefly: (a) The manner in which the wrong was committed. The basic concept here is of course 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 (as it was by the tribunal in this case). It derives from the speech of Lord Reid in Broome v Cassell & Co Ltd [1972] AC 1027 (see at p 1087G), though it has its roots in earlier authorities. It is there used to describe conduct which would justify a jury in a defamation case in making an award at ‘the top of the bracket’. It came into the discrimination case law by being referred to by May LJ in Alexander v Home Office [1988] ICR 685 as an example of the kind of conduct which might attract an award of aggravated damages. It gives a good general idea of the territory we are in, but it should not be treated as an exhaustive definition of the kind of behaviour which may justify an award of aggravated damages. As the Law Commission makes clear 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. It is unnecessary to say much about this. 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: see Ministry of Defence v Meredith [1995]IRLR 539, 543, paras 32—33. There is thus in practice a considerable overlap with head (a). c) Subsequent conduct. The practice of awarding aggravated damage for conduct subsequent to the actual act complained of originated, again, in the law of defamation, to cover cases where the defendant conducted his case at trial in an unnecessarily offensive manner. Such cases can arise in the discrimination context: see Zaiwalla & Co v Walia [2002] IRLR 697(though NB Maurice Kay J’s warning at para 28 of his judgment (p 702)) and Fletcher [2010] IRLR 25. But there can be other kinds of aggravating subsequent conduct, such as where the employer rubs salt in the wound by plainly showing that he does not take the claimant’s complaint of discrimination seriously: examples of this kind can be found in Armitage, Salmon and British Telecommunications plc v Reid [2004] IRLR 327. … 23 How to fix the amount of aggravated damages. As Mummery LJ said in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318,331—332, paras 50—51,’translating hurt feelings into hard currency is bound to be an artificial exercise’ Quoting from a decision of the Supreme Court of Canada, he said: ‘The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. ’Since there is no sure measure for assessing injury to feelings, choosing the ‘right’ figure within that range cannot be a nicely calibrated exercise’. Those observations apply equally to the assessment of aggravated damages, inevitably so since, as we have sought to show, they are simply a particular aspect of the compensation awarded for injury to feelings; but the artificiality of the exercise is further increased by the difficulty, both conceptual and evidential, of distinguishing between the injury caused by the discriminatory act itself and the injury attributable to the aggravating elements. Because of that artificiality, the dividing line between the award for injury to feelings on the one hand and the award of aggravated damages on the other will always be very blurred, and tribunals must beware of the risk of unwittingly compensating claimants under both heads for what is in fact the same loss. The risk of double-counting of this kind was emphasised by Mummery LJ in Vento; but the fact that his warnings not always heeded is illustrated by Fletcher. The ultimate question must be not so much whether the respective awards considered in isolation are acceptable but whether the overall award is proportionate to the totality of the suffering caused to the claimant. 24 Relationship between the seriousness of the conduct and the seriousness of the injury. It is natural for a tribunal, faced with the difficulty of assessing the additional injury specifically attributable to the aggravating conduct, to focus instead on the quality of that conduct, which is inherently easier to assess. This approach is not necessarily illegitimate: as a matter of broad common sense, the more heinous the conduct the greater the impact is likely to have been on the claimant’s feelings. Nevertheless it should be applied with caution, because a focus on the respondent’s conduct can too easily lead a tribunal into fixing compensation by reference to what it thinks is appropriate by way of punishment or in order to give vent to its indignation Tribunals should always bear in mind that the ultimate question is what additional distress was caused to this particular claimant, in the particular circumstances of this case, by the aggravating feature(s) in question, even if in practice the approach to fixing compensation for that distress has to be to some extent arbitrary or conventional[64]In Zaiwalla & Co v Walia [2002] IRLR 697, the respondent’s conduct of its defence attracted aggravated damages. The Tribunal had found: When she took tribunal proceedings a monumental amount of effort was put into defending those proceedings. That exercise was of the most inappropriate kind, attacking the applicant in relation to her personal standards of professional conduct and holding a series of threats over her head which would be daunting to any individual, let alone to someone about to embark on a legal career having difficulty obtaining a training contract. The defence of these proceedings was deliberately designed by the respondents to be intimidatory and cause the maximum unease and distress to the applicant. There is no other way of describing it. Failure to follow 2009 Acas Code of Practice 1 on Disciplinary and Grievance Procedures.[65]Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 enables an employment tribunal to adjust the compensatory award for an unreasonable failure to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures. The award can be increased or decreased by up to 25% if it is just and equitable in all the circumstances.[66]We should ask ourselves the following questions:a. Is the claim one which raises a matter to which the Acas Code applied?b. Has there been a failure to comply with the Acas Code in relation to that matter?c. Was the failure to comply with the Acas Code unreasonable? (Rentplus UK Ltd v Coulson [2022] EAT 81)?d. Is it just and equitable to award any Acas uplift?e. If so, what do we consider a just and equitable percentage, not exceeding 25%?f. Does the uplift overlap or potentially overlap with other general awards such as injury to feelings; if so, what in our judgment is the appropriate adjustment if any to the percentage of those awards in order to avoid double counting?g. Applying a final sense check, is the sum of money represented by the application of the percentage uplift disproportionate in absolute terms and, if so, what further adjustment needs to be made? (Slade v Biggs [2021] EA-2019-00678) Interest[67]Interest is payable on any compensation we award for discrimination pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (SI 1996/2803). It is ordinarily calculated in accordance with those Regulations, although the Tribunal does have a degree of discretion to calculate interest by reference to periods other than those set out in the Regulations in exceptional cases. For injury to feelings awards, the interest is calculated from the date of discrimination. For other awards, interest is calculated from the midpoint between the date of discrimination and the date when compensation is calculated. The current applicable rate of interest is 8% per annum. Discount for accelerated receipt[68]Tribunals like civil courts should consider making a discount to reflect the fact that a claimant who receives compensation for future losses as a lump sum may be able to invest that sum and achieve an additional benefit: Bentwood Brothers v Shepherd [2003] IRLR 364. There is no consensus as to how any discount rate should be calculated. The Ogden tables are not often appropriate and require cautious use in employment cases.[69]The discount rate set in personal injury cases under section 1 of the Damages Act 1996 is currently - 0.25%. There is a government review of that rate which is ongoing. Tax[70]When making an award of compensation, the Tribunal must take account of tax payable on the various elements of the award. It may therefore be necessary, in accordance with the principles in British Transport Commission v Gourley [1955] 3 All ER 796, once the amount of the award has been calculated using net figures for earnings and pension loss to 'gross up' the award so as to ensure that the claimant is not left out of pocket when any tax required to be paid on the award has been paid. Tax is not payable on general damages for personal injury or injury to feelings awards relating to pre-termination discrimination.[71]The first £30,000 of sums awarded in consideration or in consequence of, or otherwise in connection with the termination of employment is not taxable (section 401 ITEPA 2003). Costs and preparation time orders[72]The Tribunal Rules enable a represented party in employment tribunal litigation to make an application for a cost order and an unrepresented party to make an application for a preparation time order.[73]The test which the tTibunal must apply is the same in both cases and can be found in Rule 76. The relevant parts of the rule for the purpose of this hearing are 76(1)(a) and (b) which say: A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—(a) 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.(b) any claim or response had no reasonable prospect of success[74]The Tribunal must consider an application in two stages: - we must first decide whether the threshold test is met, i.e. has the relevant party acted vexatiously, abusively, disruptively or otherwise unreasonably; - if we are satisfied the test has been met, we should then decide if we should exercise our discretion to award costs. Each case depends on the facts and circumstances of the individual case.[75]The value of a costs order is determined by Rule 78(1) which says: “A costs order may—(a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;(b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles”[76]Awards are intended to be compensatory, not punitive (Lodwick v Southwark London Borough Council [2004] IRLR 554). This means that where costs are claimed because a party has acted unreasonably in conducting a case, the costs awarded should be no more than is proportionate to the loss caused to the receiving party by the unreasonable conduct. In other words, the party is entitled to recover the cost of any extra work that had to be undertaken because of the unreasonable conduct. The causal relationship between the conduct and the costs should not be subject to very minute analysis: Yerrakalva v Barnsley Metropolitan Borough Council and anor 2012 ICR 420, CA No reasonable prospects[77]The EAT in Radia v Jefferies International Ltd EAT 0007/18 gave guidance on the approach to costs applications under this limb. It emphasised that the test is whether the claim had no reasonable prospect of success, judged on the basis of the information that was known or reasonably available at the start. The Tribunal must consider how, at that earlier point, the prospects of success in a trial that was yet to take place would have looked. It should take account of any information it has gained, and evidence it has seen, by virtue of having heard the case, that may properly cast light back on that question, but it should not have regard to information or evidence which would not have been available at that earlier time. The mere existence of factual disputes in the case, which could only be resolved by hearing evidence and finding facts, does not necessarily mean that the tribunal cannot properly conclude that the claim had no reasonable prospects from the outset, or that the party could or should have appreciated this from the outset. That still depends on what the party knew, or ought to have known, were the true facts, and what view the party could reasonably have taken of the prospects of the claim in light of those facts. Conclusions Would the claimant’s employment have ended in any event?
Conclusions
[78]The respondents’ case was that the claimant’s employment would have ended in any event, probably within two months of the date of dismissal, by reason of her poor performance.[79]We have set out above in some detail the findings we made at the liability stage on the issue of performance concerns. Some salient features were that the claimant passed her probation and received a pay rise with no issues being raised with her. None of the concerns the second respondent told us about were raised with the claimant as performance issues or documented as such. We expressed some concerns about the reliability of the second respondent’s evidence.[80]We were provided with the first respondent’s performance management procedure. It was titled ‘Disciplinary and Capability Procedure’ and in spirit and structure was simply a disciplinary procedure which also referred to performance issues. It was not tailored to a performance management process by having timescales or targets for improvement and there was no reference to training. There was a series of ‘penalties’ in the form of warnings leading to dismissal.[81]Had we considered that performance management was likely to have eventuated, a fair process would in our view, have included an informal stage lasting perhaps three months, followed by a formal process, if there was no improvement, leading to dismissal in about six months if there was no improvement thereafter.[82]However, we had to give very careful consideration to the question of whether there would have been such a process, or any lawful process, absent the discrimination we found. This was a difficult exercise. We accepted that the second respondent had some concerns about the claimant’s performance but, given what we considered to be his exaggeration of those concerns for the purposes of his evidence to the Tribunal, and the lack of any objective evidence of the concerns, we did not find it possible to accept that they were of great significance. Because no concerns were raised with the claimant, we similarly had no evidence which suggested that she would not have responded to and addressed the concerns, had they been raised.[83]The second respondent said that the volume of work increased during the pandemic and the claimant would not have coped. The evidence showed that he had increased the number of people undertaking the work over the period substantially so it was difficult to assess how much more work the claimant herself would have had to contend with, if any, in terms of overall volume. The evidence the second respondent gave about how much minuting of meetings would have been required seemed to us to be exaggerated and unreliable.[84]The other evidence we had was that the claimant had passed her probation and not had any performance concerns raised with her. We had no evidence to suggest that she had had performance issues in other roles, although we accept that different roles have different demands and a person can perform well in one role and struggle in another. Nonetheless, we could see from the claimant’s career before and after her dismissal by the first respondent significant evidence of hard work, resilience and adaptability.[85]As enjoined by the authorities, we have to make a decision on what we think would have happened based on such evidence as we have. On these facts and given the lack of evidence produced by the respondents, we concluded we could not properly find that there was any realistic chance that, absent the unlawful discrimination, the claimant would have been dismissed for poor performance. No other reason for a potential dismissal of the claimant was put forward by the respondents; the evidence was that the company secretarial function and team grew significantly so there was no prospect that the claimant’s role would have been redundant.[86]We therefore calculated the claimant’s past and future losses on the basis that she would have remained in the first respondent’s employment until she made a voluntary move to another role. Mitigation[87]There was no dispute between the parties as to the circumstances in the market at the point when the claimant began looking for a replacement role. The pandemic had just started and the market was severely depressed. It did not bounce back significantly until 2021.[88]The respondents argued that the claimant had behaved unreasonably because she had not sought to nurture a relationship with a recruiter and had not sought to send covering letters with her CV, which they suggested would have given her applications a better chance. It was not entirely clear to the Tribunal what it was the respondents said the claimant should have done to better foster relationships with recruiters. There was a suggestion in Mr Roundhill’s witness statement that she had not got back to Mr Roundhill when he contacted her about a role but he fairly accepted that that was not correct when the claimant drew his attention to correspondence which showed that the claimant had arranged a telephone call with him, which had taken place.[89]To a degree, the respondents were relying on circumstantial evidence. The claimant had not managed to secure more than a handful of interviews in what eventually became a buoyant market. She must therefore have been taking an unreasonable approach.[90]The claimant’s evidence was that she was in contact with recruiters in addition to the written communications which were in the bundle. At times the recruiters were on furlough. She had never previously sent covering letters with her CV, which was very detailed, nor had anyone suggested that she should do so. The particular recruiter she was applying for a role through would send some covering information about a candidate when putting a candidate forward for a role; that would be discussed with the recruiter. We could see ample evidence in the bundle that the claimant was maintaining contact with recruiters.[91]Mr Roundhill did not give evidence that there was something amiss with the claimant’s approach. There was no suggestion by the respondents that there were roles that the claimant could and should have been applying for that she had not applied for.[92]It seemed to us that we had no evidence that the claimant’s approach to her applications was unreasonable and we had significant circumstantial evidence as to why she had not been successful that seemed to us more cogent than a bare allegation that she must have been going about her applications the wrong way. She was dismissed at a time when the market was very poor; she was then out of a job altogether and no doubt would have been less attractive to employers by virtue of that period of unemployment once the market picked up. Her circumstances when she had obtained the role with the first respondent were not comparable; although she was out of a role at that time, she had deliberately taken herself out of the market to achieve qualifications; the market at the time was buoyant. When asked by some potential employers about her short service with the first respondent, she felt obliged to say that she had been dismissed after raising a health and safety matter. By April 2021, the proceedings had been in the press and a potential employer doing an internet search on the claimant would have discovered that she was bringing proceedings against the first respondent and that the respondents’ defence to the claim including criticism of her performance. We accepted that this information would have been likely to deter a proportion of employers.[93]We concluded that not only was the claimant not unreasonable in how she went about mitigating her loss, she was doing her best in difficult circumstances.[94]Given the claimant’s ongoing lack of success in obtaining employment, it was also not unreasonable for her to seek to use her skills in the two businesses she set up and to undertake part-time law lecturing.[95]We found no failure by the claimant to mitigate her losses. Future losses[96]The claimant was not asking the Tribunal to award career long losses. Instead she put forward a case that it would take her at least ten years to replace her lost earnings. She put forward an account of what she considered her career trajectory would have been had she remained in the first respondent’s employment and an account of what she considered her actual career trajectory would now look like, based on her continuing to develop the businesses which she had started. The two trajectories were set out as a table in Mr Jackson’s report.[97]The second respondent commented in his witness statement that the career path the claimant put forward for herself was unrealistic. He pointed to the fact that she was earning £76,000 in 2020, when she had qualified in 2010 as a solicitor. That level of earnings is not in the bracket for 10 years qualified solicitors in the data put forward by the claimant. He said that the claimant was not therefore on a trajectory towards the sort of earnings put forward in Mr Jackson’s table.[98]That observation ignores the fact that the claimant had been pivoting from one type of legal career to another. She had not started her legal career in regulatory, banking or company secretarial work but in a range of high street matters. It seemed to the Tribunal likely that this would have depressed her earnings expectations as compared with candidates who had greater experience in financial services / company secretarial work but that there was no reason to believe that she would not be able to aspire to the better remunerated positions once she was established on her new path.[99]Mr Jackson’s evidence, which he took from published sources, about earnings in the sectors where the claimant had been intending to continue her career, was not challenged by the respondents. Although Mr Jackson’s expertise is not in the legal or financial services sector, that would not have affected his ability to analyse and collate published data from those who are expert in those fields.[100]A question for us was whether the trajectory posited by Mr Jackson was a realistic one. He credited the claimant initially with fewer than her actual years of PQE, which seemed to us to fairly reflect her change of career path. In his table he treated her as if she were a solicitor with 4 – 6 years PQE in 2020 in ‘fintech’ and then projected her salary increasing in line with PQE until 2023/2024 when he projected that she would be in a head of legal role. He then projected her increasing her salary in such a role and achieving a general counsel role in 2026/2027 and moving up within the earnings bracket for that role over the remainder of the projected period of loss.[101]The respondents essentially pinned their case on two submissions: that the claimant would have been dismissed for poor performance and that she had failed to mitigate her loss. The respondents did not make any detailed submissions about what the claimant alleged would have been her career trajectory although, as we have observed, the second respondent gave his view in evidence that she was not on that kind of career path and counsel for the respondents described her assertions about her career path as ‘fanciful’.[102]It was put to the claimant that she had had various short term roles in the past. The claimant’s evidence was that she had moved as part of her strategy to move into financial services work. She had never been dismissed but had moved to acquire further skills.[103]We noted that the claimant had been interviewed for a head of legal role. We also bore in mind the salaries the first respondent has had to pay to new staff in the company secretarial function since the claimant’s departure.[104]It seemed to us, doing our best with what are inevitably speculative matters and bearing in mind that the claimant has shown considerable determination and fortitude in her approach to her career but also that she has not followed a conventional path in the areas she was seeking to progress in, that the following projections as to the claimant’s future salary had she not been dismissed fairly reflected the uncertainties: a) 2020 – 2021: Claimant’s existing salary of £76,000 plus 10% benefits; b) 2021 – 2022: Salary rise to £85,000 plus 10% benefits; c) 2022 – 2023: Salary rise to £90,000 plus 10% benefits; d) 2023 – 2024: £110,000 plus 10% benefits e) 2024 – 2025: £110,000 plus 10% benefits; f) 2025 – 2026: £110,000 plus 10% benefits; Mr Jackson’s table suggested that the claimant would have achieved a head of legal position by 2023 at a minimum salary (taken from the published data) of £115,000. The figure of £110,000 seemed to us to reflect the possibility that she might have achieved such a role by this stage but that she might not have. She might nonetheless have improved her salary either at the first respondent or by a move. We bore in mind what Mr Roundhill told us about the market from 2021 onwards with candidates able to command 20% increases in their salaries to move position. g) 2026 - 2027 – 2033 - 2034: £145,000 plus 20% benefits. This salary was the median of head of legal salaries. We considered that this figure reflected a fair average of the different possibilities. There was some chance we considered that the claimant would progress to a general counsel role, a good chance that she would achieve a role at head of legal level and some chance that she would not progress to either level. The figure of £145,000 is intended to encompass those possibilities. We have also depressed the figures to take account of vicissitudes, ie the figure would be higher had we not included a discount for the possibility that the claimant’s career might have come unstuck for some other reason over the period. ‘Benefits’ was used by Mr Jackson to describe pension contributions, health insurance and bonus and we use it to cover the same areas of loss. What the claimant will actually earn over the ten year period[105]We had evidence from the claimant of her actual earnings and the difficulties she had had in establishing her businesses and obtaining clients. Mr Jackson had projected earnings from these businesses over the period until 2034. The respondents had not suggested in submissions that these figures were unrealistic. In the absence of any challenge and any other basis for projecting the claimant’s earnings, we have accepted the figures although it appeared that they did not fully take account of the claimant’s earnings from her part time lecturing. Mr Jackson’s report was prepared in October 2022 at which point the claimant was doing some casual lecturing, bringing in about £4000 per annum according to the claimant’s accounts.[106]At the time he prepared his report, Mr Jackson reported that a part-time lecturer role for two days per week had become available which would bring in approximately £1000 per month. We understood the claimant’s evidence to be that she had been successful in obtaining that role and so we have added a further £8000 to the net yearly income projected by Mr Jackson.[107]In doing the calculations on the basis outlined we have borne in mind the need to take into account other possibilities and general life vicissitudes, per Plaistow and consider that these are fairly reflected in the limited period of loss and the approach we have taken to yearly loss figures. We accepted the claimant’s account that her dismissal, given in particular its timing, had effectively set her back many years from the career path she was pursuing.[108]The Table below represents the figures we were able to assess. We did not hear any oral submissions from the parties as to how to calculate the incidence of tax and National Insurance on the gross figures in cases where Mr Jackson had not calculated the net sum and we asked for further submissions which we discuss below. The Table includes calculations based on our conclusions on the appropriate way to calculate net earnings. Table of past and future loss of salary and benefits NB: the claimant presented her losses on the basis of financial years rather than as a weekly loss figure and the respondents did not put forward an alternative method of calculating the loss over longer periods so we have adopted the claimant’s methodology. Year Basic Benefits if Total net Claimant’s Difference salary if no no actual net unlawful unlawful salary and dismissal dismissal benefits 2020/2021 £76,000 10% £51,178£51,178 2021/2022 £85,000 10% £62,797£62,797 2022/2023 £90,000 10% £65,918£30,000£35,918 from dismissal to date of hearing 2023/2024 £110,000 20% £79,259.40£23,000£67,249.40 + £11,000 = £90,249.40 2024/2025 £110,000 20% £90,249.40£28,000£62,249.40 2025/2026 £145,000 20% £94,803.40£33,000£76,303.40 + £14,500 = £109,303.40 2026/2027 £145,000 20% £109,303.40£38,000£67,503.40 plus 10% benefits = £41,800 2027/2028 £145,000 20% £109,303.40£48,000£56,503.40 plus 10% benefits = £52,800 2028/2029 £145,000 20% £109,303.40£58,000£45,503.40 plus 10% benefits = £63,800 2029/2030 £145,000 20% £109,303.40£78,000£15,703.40 plus 20% benefits = £93,600 2030/2031 £145,000 20% £109,303.40£98,000 0 plus 20% benefits 2031/2032 £145,000 20% £109,303.40£118,000 0 plus 20% benefits 2032/2033 £145,000 20% £109,303.40£138,000 0 plus 20% benefits Total: £540,908.80 Netting down gross salary and benefit figures[109]The respondents submitted that we should make use of the tables in the Employment Tribunals Remedies Handbook. The claimant argued that we should make use of a calculator function on a website called ListenToTaxman. This was a commercial website not connected with HMRC or any government department and we were not able to form a judgement as to its reliability.[110]We therefore used the tables in the Employment Tribunal Remedies Handbook 2022 - 2023; on occasions we have had to calculate a figure for net income where the salary figure we were considering fell between two figures in the table. There would be no tax on the employer pension contributions which formed part of the ‘benefits’ in the table so we have allowed for tax on 50% of the benefits, to reflect tax on bonus and health insurance. We did not have sufficient evidence to make a more precise calculation.[111]We bore in mind that we were awarding compensation for injury to feelings arising from the two matters we found to have been unlawful, not the earlier incidents the claimant gave evidence about, although they are part of the context for the dismissal.[112]A very significant feature of the claimant’s injured feelings was the fact that she lost her job at what would have been the worst possible time in recent history and was presented with grave difficulties in obtaining new work at that extremely stressful and difficult time. We bear in mind that the claimant was very shocked, having had no warning that the second respondent was unhappy with her work. The manner of the dismissal was not pleasant, in particular the description of the claimant as ‘not a Starling person’. The claimant was also, as described above, thrown severely off course in her chosen career.[113]We did not consider that the lower band cases cited by the respondents had all or most of those more serious features. Cases involving dismissals with serious consequences were more commonly found in the middle Vento bracket. This case was not, we considered, towards the top of that bracket; the claimant did not for example report the kinds of psychiatric consequences which were commonly seen in cases higher in the band. It did however seem to us to fall squarely within the middle of the bracket and we considered that the appropriate award under this head was £15,000. Aggravated damages[114]We were asked by the claimant to consider a list of what she said were aggravating features. We set these out with our conclusions below. The evidence the respondents gave about how a company secretarial assistant came to be recruited[115]This was a matter we dealt with at the liability stage. We did not accept the respondents’ evidence that the claimant suggested hiring an assistant some time after she started her employment and that the respondent acceded to the request to support the claimant’s performance but concluded that, as the claimant said, there had been a plan to recruit an assistant from the outset of the claimant’s employment.[116]In many if not most cases, the Tribunal will reject some of the evidence of one or both of the parties. The fact that evidence has been rejected is not of course of itself sufficient to give rise to aggravated damages. It was not the view of the tribunal that Ms Yallop and the second respondent had deliberately fabricated this account to attack the claimant’s performance. We considered instead that they had not looked into the matter very carefully before giving the evidence they gave and that that evidence reflected wishful thinking as to what the course of events had been rather than conscious or deliberate dishonesty. The respondents’ evidence as to why Ms Fox left the respondents’ employment[117]We accepted the evidence of the respondents that Ms Fox had made reference to her relationship with the claimant as being a reason why she was leaving but we also found that, in the absence of any investigation into the matter, the respondents could not fairly have concluded that problems with the relationship were the claimant’s fault.[118]We could see nothing improper about the respondents adducing this evidence, which formed part of the respondents’ account of the reasons for the claimant’s dismissal. Although we rejected the respondents’ case ultimately, it was not offensive or improper to pursue the defence. We did not find that this evidence was ‘malicious’ as the claimant suggested. Conduct of litigation: attempted non-inclusion of documents without good reason[119]This was a matter the claimant included in her written submissions. We could not tell what the complaint was, by reference to the pages in the bundle she referred to and were unable to make any findings about the complaint. Court order non-compliance, not sending bundle on time[120]Our attention was not drawn to any delays which went beyond unfortunate but reasonable and explicable hiccups in the litigation process. Amended bundle without explanation or prior disclosure of documents. Including new documents without correct dates (May 2019 when it was in fact 2021)[121]This related to the addition of some six pages of documents and what appears to have simply been an error in the dating. State of hearing bundle: (despite prior requests to rectify)[122]This complaint related to the fact that the pdf numbers on the electronic bundle did not match the hard copy page numbers because documents had been inserted into the bundle after it was first paginated. Unfortunately the Tribunal panel has seen many bundles where this is an issue, particularly as parties and their representatives have adjusted to the more widespread use of electronic bundles. We had no evidence to suggest that the respondents’ representatives compiled the bundle in this way deliberately to inconvenience the claimant or the Tribunal. [Respondents’ representatives’] introduction of further documents a few hours prior to exchange of WSs regarding J Roundhill and board minute extracts[123]We could not see any evidence that this was anything out of the ordinary in terms of the conduct of litigation. It is not uncommon for parties to produce further documents after the original date for disclosure. The claimant did not say that she was materially prejudiced by the late disclosure. 2R’s attempts to call into question Mr Jackson is unjustified, particularly the factually incorrect challenging of the number of reports he has produced along with other comments such as ‘based in the North of England’[124]The second respondent had, as we have commented above, conducted a critique of Mr Jackson’s expertise and background in his witness statement. His purpose was clearly to call into question the quality of Mr Jackson’s evidence. Most of his points could perfectly properly have been explored with Mr Jackson in cross examination had Mr Jackson been called as a witness. How many other recruiters have been contacted and alerted to the proceedings, given the Rs have been in touch with J Roundhill. 1R has contacted recruiters C was in contact with and by her own admission she spoke ‘directly to those professions.’[125]We understood the claimant’s concern that Mr Roundhill, a recruiter with whom she had had professional contact, was called to give evidence. Ms Yallop had spoken to recruiters in preparing her report about the state of the market for the purposes of the proceedings. However, we simply had no evidence that the respondents had bad-mouthed the claimant to recruiters or had done anything to damage the claimant’s position in the marketplace. Appropriateness of J Roundhill as a witness and incorrect information deeply distressing[126]The respondents were entitled to call evidence as to the state of the market and a recruiter with expertise in that market was an obvious person to call. Mr Roundhill did give evidence that he had no record of further contact from the claimant but he readily conceded that he must have done when she took him to the relevant documents. He said he had not been able to find any further emails when he looked on his own system. Again, this seemed to be an example of sloppiness on the part of the respondents rather than a concerted effort to mislead.[127]We could not see that any of these matters amounted to conduct of the proceedings in an unnecessarily offensive manner. We certainly found no conduct which could be characterised in the way the conduct of the proceedings in Zaiwalla & Co was characterised. We did not make an award of aggravated damages. Acas uplift[128]It was common ground between the parties that the Acas Code applies when an employer considers that an employee is poorly performing. There was a wholesale failure to comply with the Code in terms of notification, accompaniment, warnings, meaningful discussions and so forth.[129]The respondents suggested that the failure was not unreasonable because the claimant did not have two years’ service. However, the Code and the principles enshrined in the Code are not limited in their application to employees who have unfair dismissal rights. The fact that some employers treat the Code as something which can be dispensed with when they believe the risks are low because an employee cannot bring an unfair dismissal claim does not mean that they act reasonably in doing so.[130]We bear in mind that this is a well-resourced employer with a dedicated HR function which ought to have known better. The treatment of the claimant was not only unreasonable and unfair, it was damagingly poor in terms of the shock to the claimant of her entirely unheralded dismissal at the start of a global pandemic. The decision to disregard the Code was clearly deliberate given HR involvement and we could discern no mitigating factors.[131]Whilst we considered that 25% would fairly reflect the total failure by the respondents and our disapproval of the consequences of that failure, we bore in mind that there was some overlap with the injury to feelings award (which took into account the effect on the claimant’s feelings of the failure to follow the Code or any reasonable process) and had regard to the overall size of the award. We concluded that 25% of what is already a large figure was disproportionate and we awarded 12.5% under this head. Assorted costs relating to the claimant’s businesses[132]Given the evidence we had that the claimant’s earnings from her businesses, which are the figures we set off against what she would have earned had she not been dismissed, were figures which were net of costs and expenses, we concluded that awarding a separate figure under this head would have amounted to double recovery.[133]The claimant asked for the cost of Mr Jackson’s report, however this was properly to be regarded as an issue for costs rather than an issue of compensation, as the report was obtained for the purposes of the litigation.[134]The claimant asked for compensation from the respondents’ representatives for damage caused to her by the data breach. We considered we had no jurisdiction to award compensation in relation to the data breach and in any event we had not heard a claim in relation to the data breach. Accelerated receipt[135]The Ogden tables did not seem to us to be apt for use in a case like this in which the claimant does not have an impairment which limits her from working in her chosen field and she has losses which span a limited period of her overall career.[136]The position we faced is that in PI cases there is a modest negative discount rate at present. We take judicial notice of the facts that interest rates are currently high but so is inflation and that the PI discount rate is under review. In the circumstances, it seemed to us that there was no rational basis on which we could select any discount rate and we have accordingly not applied one. Interest[137]There was no dispute between the parties as to the applicable principles. In accordance with those principles, we calculated interest on past financial losses of £172,309.46 plus uplift (at 12.5%) of £23,538.69 for a total of £193,848.15.[138]The midpoint between the date of dismissal and the calculation date of 11 August 2023 was 23 November 2021. Interest at 8% per annum from that date until the calculation date (a total of 13.72%) is £26,595.97.[139]We calculated the interest on injury to feelings and uplift (a total of £16,785) from the date of dismissal until the date of calculation at 8% per annum for a total of 27.4%. Interest on injury to feelings was therefore £4599.09. Grossing up for tax[140]Total compensation before grossing up is calculated as follows: Past and future losses: Total: £540,908.80 Uplift on past losses £23,538.69 Injury to feelings £15,000 Uplift on injury to feelings: £1785 Interest on past losses: £26,595.97 Interest on injury to feelings: £4599.09 Uplift on future losses: 12.5% x £368,599.34 = £46,074.92 Total before grossing up: £658,502.47[141]A calculation was then done based on the method described at page 36 of the Employment Tribunal Remedies Handbook: To gross up: Deduct £30,000 tax free sum = £628,502.47 The amount taxed at 20% = £30,160. Grossed up = 30,160 /0.8 = £37,700 Higher rate tax paid on next 112,300 gross which is £67,380 net, so next £67,380 / 0.6 = £112,300 The remainder is £628,502.47 - £30,160 - £67,380 = £530,962.57 which has to be grossed up to reflect tax at 45% : £530,962.47/0.55 = £965,386.31 So total after grossing up = £965,386.31 + £30,000 + £37,700 + £112,300 = £1,145,386.31 Preparation time order[142]In support of this application, the claimant did not point to any specific unreasonable conduct of the proceedings on the part of the respondents which might have led to a preparation time order.[143]Although the respondents were not successful in their defence of these claims, we do not conclude that they had no reasonable prospects from the outset. The defences were arguable. Although on a careful analysis of the evidence we found the claimant successful on two claims, in respect of three other claims she was not successful. We made no preparation time order.