Ms C Towns v SL Media Group Ltd and Mr R Johnson: 2204912/2019
EMPLOYMENT TRIBUNALS
Case No 2204912/2019
Between
Ms C TownsClaimantSL Media Group Ltd and Mr R JohnsonRespondent
Before
Employment Judge SpencerMr Clarke (instructed by Counsel) for claimantDate 22 February 2021
JUDGMENT
[1]The Respondent’s application under Rule 70 is accepted and the judgment in default against them of 28 July 2020 is revoked.[2]The time for filing the defence is extended and the Respondent’s ET3 is accepted .[3]The claim is listed for 19th and 22nd February 2021 for a full hearing on liability and remedy.[4]The Respondents are ordered to pay the Claimant £500 by way of a contribution to her costs .
REASONS
[1]The First Respondent was a business operating as a sales agent for third party contract cleaning services. The Second Respondent is the owner and operator of the First Respondent. The Claimant was engaged as a work experience intern by the Second Respondent. The Respondents claim that the Claimant was not employed by either Respondent. They say the Claimant was engaged on work experience with the First Respondent and , in any event , deny the claims made of sexual discrimination and harassment brought by the Claimant and ended her contract for poor timekeeping.[2]The Claimant states that she was employed by the First Respondent and indeed signed a non-disclosure agreement, produced, and signed by the Respondent, which identifies SL Media Group Ltd as her employer . And the Claimant claims she was harassed and discriminated against relating to /on the grounds of sex by the Second Respondent leading to her resignation.[3]The case had been listed for a hearing on 2nd April 2020 before a Judge sitting alone for one day. That hearing dd not go ahead because of the pandemic. There had still not been a response to the claim by the Preliminary Hearing before Employment Judge Spencer on 28 July 2020. He determined that the claim was validly served at the (then) registered address of the First Respondent and the Second Respondent is its sole director. He noted from a search at Companies House that that the First Respondent changed its registered address on 10th June 2020 to Unit 155, 111 Power Road London W4 5PY and directed that his order and any other notices be sent both to the old and the new registered address. But as there had been no Response to the claim a Rule 21 Judgment would be issued in respect of liability and the issue of remedy for the Claimant’s successful claim of harassment relating to sex and sexual harassment was listed to be heard today by Cloud Video Platform (CVP) on 15th October 2020 .[4]The Respondents say the first time they knew anything about this case was when EJ Spencer’s Order was served on the then correct Registered Office. And as a result, they applied to set aside judgement that had been entered and , if allowed , an extension of time in which to serve an amended defence. An ET3 now served. Their application was supported by the Second Respondent. With a remedy hearing and or case management directions to follow. Mr Johnson gave evidence on oath on behalf of the Respondents and after his evidence and submissions from the parties these are my findings limited primarily to the First Respondents’ application .[1]The First Respondent was not trading until 10th of June 2020 although it is clear that the company was incorporated on 9th October 2017 (originally under the name of Ulasi Group Ltd) at 1st Floor, 2 Woodbury Grove, Finchley, London, N12 0DR, the address that the claim was served upon.[2]The registered name of the First Respondent then changed to SL Media Group Ltd on 29th October 2018 and so when the claim was presented on 14th November 2019 the company was in existence and the documents show that the claim was served upon the correct company and address at the time of issue.[3]The assertion by the First Respondent that the claims were bought against the incorrect entity is incorrect[4]However, I am satisfied that the Respondents were unaware of the proceedings until they received EJ Spencer’s Order on or about 10 August 2020 . The Second Respondent had not visited or received any material correspondence from the registered office.[5]The Respondents did not receive a copy of the ET1 until on or about 8 September.[6]The registered address of the First Respondent did not change to Unit 115, 111 Power Road, W4 5PY until 10th June 2020 and some considerable time after the ET1 would have been served. However, the Respondents have never been to this postal address and whilst they should have checked it I accept they did not nor had a post redirection service in place and whilst they are at fault for this they have not acted in bad faith in their denial of any knowledge of the case.[7]It is not clear whether the Claimant was an employee of the First Respondent or not. Or whether she resigned or was dismissed . But it is clear she was only working with the Respondents for a very brief period.[8]The issues as to her discrimination and harassment claims arise from largely disputed facts. Legal Findings RECONSIDERATION OF JUDGMENTS Principles 1. Rule 70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied, or revoked. If it is revoked it may be taken again. 2. I have found that the Respondents only received notification of the default judgement ( the first they said they knew about the proceedings ) on or about 10 August following default judgement on 28 July sent to parties on 5 August. As a result, the judgment in default is revoked . 3. I extend time for the ET3 now served , the remedies hearing listed for today will not proceed and the case will be relisted for a full hearing on liability and remedy. Costs The Claimant applied for costs under Rule 75 and I heard submissions from the parties before determining this including evidence as to the Second Respondent’s means. My findings are 1 The First Respondent is a small fledgling business . The Second Respondent has limited means especially given the fact his photography based business has almost no income in these Covid times and his side-line DJ work is adversely affected for the same reason. 2 I cannot say the defence has no or little prospect of success on the limited evidence I have heard. 3 The balance of prejudice lies in favour of the Respondents given the prejudice they suffer from playing no further part in the proceedings and going ahead with a remedy hearing today following default judgment having been entered against them. 4The Respondents cannot be guilty of unreasonable conduct , for costs purposes, before they knew of the claim even if perhaps, they should have been aware. 5 They did act unreasonably from 10 August as the they knew about the claim then on/by then although they may not have got the ET1 until 8 September. But even if so , they did not file an ET3 until 17 September’ 6 Their letter to the ET saying the wrong company address had been used was misleading as even if they thought this might be the case it was the correct one. 7 The Claimant had had only limited costs until the preparation for this hearing and Counsel’s fee for attendance today. On this basis I award the Claimant £500 by way of a contribution to her costs taking all the above factors into account due jointly and severally from the Respondents and payable immediately to the Claimant. The Respondents have acted unreasonably , especially by denying they had been served and delaying the ET3 , and under rule 76 (1) (a) in its conduct of this case justify a costs order being made and I assess the appropriate sum under Rule 75 should be £500 for the reasons given .[1]This is a claim for sexual harassment, or harassment related to sex, arising from a brief internship in September 2019. The second respondent is the owner and director of the first respondent company, of which he was the only employee.[2]The respondents dispute that the Equality Act applies to these events. It is argued that the claimant was neither an employee nor an applicant for employment. If the Equality Act does apply, the facts of what is said to have happened are disputed.[3]It is worthwhile looking at the history of this case as it may affect the quality of the evidence. The work relationship ended on 30 September 2019. The claimant went to ACAS for early conciliation on 24 October 2019, and presented her claim to the employment tribunal on 14 November 2019. By 17 February 2020, when no response had been filed, Employment Judge Stout listed he case for a remedy hearing on 2 April 2020. That hearing was overtaken by the pandemic lockdown and did not take place. On 28 July 2020 Employment Judge Spencer issued a rule 21 judgement and listed a hearing on remedy for 15 October 2020. A notice of that hearing was sent the parties on 5 August 2020. On 17 September the respondents’ representative, Peninsula Business Systems, filed a draft response and applied to set aside the judgement, saying the respondents had not received the proceedings. Meanwhile, the claimant had prepared a witness statement and hearing bundle for 15 October 2020 hearing. At the hearing, Employment Judge Russell decided to set aside the default judgement and listed this hearing to decide all the issues. Last week, the bundle was updated with additional material from the respondent, the respondent filed a witness statement, and the claimant updated hers. All this means that the second respondent’s evidence is given long after the event, and the claimant may not recollect all details by now either. On both sides there were some discrepancies between the witness statement and the contemporary texts, telephone records and WhatsApp messages.[4]Live evidence was given the tribunal by the claimant, Chloe Towns, and the second respondent, Reece Johnson. The tribunal read a short witness statement from Owen Buckland, the claimant’s boyfriend, but he was not questioned because he could not remember any detail of what was said on the morning of 30 September when Mr Johnson phoned him.[5]There was a hearing bundle of 185 pages, and two later additions.
Findings of Fact
[6]The first respondent is a company of which the second respondent is sole director. Incorporated in 2017, the last accounts filed, made up to 31.10.19, show that it as a dormant company. According to the Companies House register it is in the advertising business; the work the claimant was asked to undertake was to call pubs and restaurants offering contract cleaning services. The second respondent described the business as a start-up. He also has regular work as a DJ, working 4-7 nights a week in London and at various south coast towns. He also has or has had interests in companies managing property, several dissolved, others on the register.[7]The claimant had her 19th birthday early in September 2019. She moved to London to live with her boyfriend and to look for work. She had signed up for a law degree with the Open University, but only followed it for a month. Before that she had done waitressing and bar work. She saw on Indeed, a jobs website, an advertisement placed by the first respondent for a trainee personal assistant role. It said: “this role starts as an internship for the first two weeks as stated in the advert. This time allows you to gain experience in a role like this and for you to prove yourself with punctuality, organisation, creative thinking and being innovative. self-motivation is a key part of this role. Expenses, travel and commission will be paid during this first two weeks.” After describing a role involving branding, marketing, and the opportunity to earn a substantial amounts of money, it went on: ..“after this time a comprehensive basic salary will be offered. This will be a progressive salary increasing with responsibility and performance. once the director is satisfied with your performance, you will start at £9 per hour on a 10 am to 4pm standered day, this we may require you to wqork obvertime. then the salary will increase on completion of your probation, a £18-£22 basic and an OTE of £48,920 upwords is what we expect to pay during your first year.” (spelling and punctuation not corrected).[8]The claimant applied with her CV and received in reply an invitation to interview on Monday 23 September at a serviced office (hired for the day) in central London. The message purported to come from Fiona Gilliham, Executive Director, but Mr Johnson said in fact it had been some time since she worked for another company he ran, and he had edited and pasted text from an earlier letter; the Indeed and Regus accounts were in Ms Gilliham’s name.[9]The claimant was interviewed by Mr Johnson who asked her to start on Wednesday 25 September at 10.30 at the Lightbox in Chiswick. She arrived soon after 10, and waited in the business lounge open to the public. Mr Johnson sent a message saying “grab a seat be down in the few minutes” but in evidence said this was misleading because he was still parking his car at the time, and was not in his office, which is on a higher floor.[10]She was given an undated letter offering her an internship with SL Media Group Limited to take effect from 25 September 2019 and to end “before 11/7/2019” (sic). She was asked to attend Monday to Friday “between the hours discussed with the manager” with a 30 minute lunch break. The letter said the internship was an opportunity for her to gain some work experience, and “in no way is this an offer of employment and you are not considered to be an employee”. There would be no salary, but she would be paid reasonable expenses. The rest of the letter deals with confidentiality and copyright, and deductions for expenses owing if company equipment was damaged. She was provided with a tablet.[11]The claimant also signed a new starter details form. Among other things it asked for details of her bank account.[12]Another document she was asked to sign was a nondisclosure agreement, lasting two years from termination by either party about the confidentiality of information about business plans, practices and personnel.[13]All these documents are dated by 25 September 2019 and so seem to have been backdated to her start date. The date they were actually signed is disputed. In our finding the new starter form was signed on Thursday 26 September (the date asserted by the second respondent) as it was photographed for the respondent’s record on that date. Having regard to other discrepancies , we believe the nondisclosure agreement was signed on Friday 27 September, rather than on 25 September as the second respondent says, but like the others dated 25 September being the start date.[14]The claimant says that during the first day at work the claimant asked a number of questions about her personal life, in the context of needing to earn money in the case of her relationship breaking down. This, as all of the conversations during the week, is denied. In our finding there were such questions, but of themselves were not seen by the claimant as harassment. Plausibly they may have occurred in the course of introductory discussion and by way of conversation, although in most professional settings they would be viewed as unwise.[15]In the course of the second day, the claimant says the respondent asked about her love life and said he did not see anything wrong in having a little fun on the side no it isn’t serious, and that he also referred to massage places “you can go to which have a happy ending at the end of it” and that he had used occasionally. Again, this is denied. In our finding, such remarks were made. They are inappropriate as between employee who have no other relations and where the employer takes the initiative. There is no evidence that the claimant was upset by these remarks at the time, though she viewed them with hindsight by the end of day three.[16]There was contested evidence about who was where. In our finding the claimant arrived on time for work each day. The second respondent did not spend all day with her as he had other engagements. For example on the first day there was conversation between 30 to 60 minutes, and later meet up at barn station to handle the business cards when she went on to see a prospective client in barking. On the second day, she arrived on time, there is second respondent may have arrived at about 11 or as late as 3 pm, but they spent some time together. An employee who was not making notes at the time and it did not see the day’s events is remarkable may well have misremembered what happened when, but is less likely to have made up whole conversations, and we accept what she said even if it is not clear that it happened precisely when she said it did. She relies on Google records of her movements each day which show that she worked long days and where she was at each time. The respondent has produced some car parking receipts only.[17]Towards the end of the second day the respondent says he lost confidence in the claimant’s ability to do the job, because of the relatively low number of leads she had generated from her calls. He says he was “gearing up to let her go next day”. Next morning he telephoned the runner-up in the interviews, a woman called Isabella, and offered her the same work experience terms, which she accepted. Isabella was to collect the tablet on Monday.[18]On the third day, Friday 27 September, the claimant started work at 8 a.m. as required. At some point in the middle of the day there was a conversation with the respondent when, learning that she only made eight appointments that day, he said she should get 10 or he would have to hire someone else and share the opportunities with her, which would cut her pay in half. Respondent asked her into his office on the first floor of the lightbox to sign some papers. This, she says, is when she was asked to sign the nondisclosure agreement. She says that on signature the second respondent commented jokingly that now he could say anything he liked because she could not reveal it. It was in the office he says, said that he was considering setting up an escort service and asked she if she was interested – if she joined the business they would have to try out the possible people to guard the website to see if there are any good, and then, that he said the claimant should try him out and wrapped a hand moved towards his groin area, then saying he was joking. The claimant describes how she had to wait some time to get out of the room because he was collecting papers and postponing the departure. On the pavement he gave her a hug, and said he wanted her to be “very comfortable with me to the point where we can openly talk about escorts and I want to be able to go away with you on a business trip and give you a gift waiting in your hotel room”. They were to meet again on Monday. He sent a message with a list of material she should read and study over the weekend in preparation for better performance on Monday.[19]The second respondent denies that any of these remarks were made. We noted that although she was challenged in cross examination about the detail of her movements on various days, she was not challenged on what had been said to her, or that she had misunderstood. It was suggested that she had made up the whole story for gain.[20]The tribunal accept there are a number of discrepancies, and we are still not clear that the nondisclosure agreement was signed on Friday rather than on one of the two preceding days. However, weighing up the evidence of the two, we find the claimant more credible.[21]An important piece of evidence, because close in time to the disputed events, is a message the claimant sent to her boyfriend’s mother on the Sunday afternoon. She wrote “hiya, I have a slight dilemma. This new job… The guy I’m working with has been a little inappropriate with me on Friday making a comment about “trying him out” in that way. Sorry I feel weird explicitly saying it so I hope you get what I’m trying to say. He’s getting me to do all this extra work outside of working hours bearing in mind it’s unpaid for first two weeks and has threatened me as if I don’t do it then he will hire someone else to do it or not offer me a job at the end of it because employment isn’t guaranteed. I’m on the fence about going back and I just wanted to see what your thoughts were what I should do”.[22]We know some of this is actually true - for example, the second respondent was bringing someone else in. She was also working very long hours, the advertisement having suggested her core hours would be 10-4. She had been told that her performance was not good enough. It would be rational consider whether to go back the second week and work more long hours with the threat that this would be wasted input. There was no need to add that the second respondent was being “inappropriate” or “weird”, both of which would be understood from one woman to another as indication of some sexual attraction or intent. The details of what he said or did might not have been revealed straight off, and may have depended on their exact relationship. She may well have felt inhibited at giving the detail to her boyfriend’s mother, how friendly they were. We considered whether she had embellished some less sinister comment, but concluded that the sequence of remarks rang true, and in particular that the hug suggested he understood from her reaction that he may have crossed a line.[23]It was suggested that he had prevented her from leaving the room. In our finding this is wrong. She wanted to leave, and was waiting for him to collect his things, which seemed to take a long time, and rather than leaving of her own initiative she deferred because he was the boss and she was much younger (by 13 years) , and she needed his approval if she was to complete the unpaid spell successfully, but she was not forcibly detained.[24]The claimant decided on the Sunday evening not to go back to work. She decided to post the laptop back but was advised against because of the risk of damage for which she might be charged. There was a plan for the boyfriend to return it.[25]Although the claim form says that the claimant resigned, in fact she took no steps. Soon after 8 AM the second respondent telephoned to ask where she was. Her boyfriend took the call, as shown by the claimant’s contemporary message and in the respondent’s evidence, while he says he has no recollection of taking the call. The second respondent said angrily that he would report to the police the tablet was stolen, the claimant said someone could collect it, the second respondent said he had some bailiffs in the area (though here, the complainant’s contemporary messages with her boyfriend’s mother are cut off) and in the event arrangements were made for her to hand it over at Clapham Junction station, which was done.[26]A few days later the claimant asked about payment of £12 for her travel during the period, asking if she should send her bank statements as evidence. The respondent says he did not reply because he needed receipts.
Relevant Law
[27]Section 13 of the Equality Act 2010 prohibits direct discrimination where a person treats another less favourably than he treats or would treat another on grounds of a protected characteristic, which includes sex. The discriminatory act alleged in this case is dismissal.[28]Section 26 of the Equality Act prohibits harassment, defined as this:(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) v iolating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).[29]In order to decide whether conduct has the effect in 26(1) (b), tribunals must take into account: the perception of B, the other circumstances of the case, and “whether it is reasonable for the conduct to have that effect” – section 26 (4).[30]Sections 39 and 40 deal with who is covered by these provisions in the field of work. Section 39(1) states that an employer must not discriminate against a person in the arrangements he makes in deciding to him to offer employment, or the terms on which she offers employment, or not offering that person employment.[31]Section 40 provides Employees and applicants: harassment (1) An employer (A) must not, in relation to employment by A, harass a person (B)— (a) who is an employee of A's; (b) who has applied to A for employment.[32]Who is an employee is widely defined in section 83 (2), and includes not just those employed under a contract of employment or apprenticeship but also those working under a “contract personally to do work”.[33]Mr Morris, for the respondent, did not make any submission on this point, but relied on the denial in the response that the claimant was an employee within the meaning of the Act.[34]For the claimant, Mr Clarke referred the tribunal to 2 cases: Murray v Newham CAB 2001 ICR 708, and X v Mid Sussex CAB 2012 UKSC 59. In the first case, concerning disability discrimination against a would-be volunteer, there is no mention of any issue as to his status; he was treated as an applicant for employment . The Mid Sussex case by contrast discussed at length whether the Equality Act applied to volunteers. The volunteer had worked for six months before being asked (related to disability) not to come any more. By the time the case reached the Supreme Court, the volunteer was not relying on the provision of the Disability Discrimination Act that made it unlawful to discriminate “in the arrangements which (an employer) makes for the purpose of determining to whom he should offer employment” and instead relied on the fact of dismissal, and on the Framework Directive, in particular that it applied to “conditions for access to employment, to selfemployment or to occupation”, seeking to argue that occupation was wider than employment and would cover volunteering. The Supreme Court concluded that as the Framework Directive discussed training and work experience, it was not directed to voluntary activity. Status - Discussion and Conclusion[35]The Tribunal, having considered the facts of this case, hold that it is clear from the advertisement and the invitation to interview that the two-week unpaid internship was advertised as an unpaid trial period, which would turn into paid work after two weeks. The claimant entered the “internship” because she understood it was likely to lead to paid work, not because she wanted any training or work experience to embellish her CV. The details of hours, pay and probation period before pay would increase clearly show that both parties to the agreement contemplated paid work if she was satisfactory in the first two weeks. It was part of the “arrangements for offering employment”, of the nature of an extended practical test following interview. It is in no way like the six months of carrying out a full range of duties of the CAB volunteer; it was never contemplated that the volunteer would be paid more than expenses at any stage. The claimant’s understanding corresponds to the objective reading of the advertised terms and invitation to interview. The work experience letter is silent as to what was to happen next, or even on when the period was to finish, ad does not reflect the agreement between the parties, the terms of which must include the prior documents on the basis of which she was offered the placement and on which she accepted the offer and started work. If the respondent says that the advertisement and into the invitation to interview were only for training and work experience, then the dangling of pay expectations looks like a trick. In our finding, the disputed events are covered by section 39 (1) and section 40.[36]The Tribunal has not been asked to consider the application of National Minimum Wage Act, or whether the claimant was in fact a worker. Had we done so, we might have been concerned that she was asked to do real work, not shadow someone else, was expected to attend certain hours, and then threatened with someone else being hired because her performance in the number of leads recruited was below expectation. These are not characteristic of work experience. We would have invited submissions on the point had it been pleaded.[37]As to whether there was harassment, in our finding the remarks on the Wednesday and Thursday by themselves were insufficient to amount to intimidating or hostile conduct by themselves, but they are background indicating the truth of what happened on Friday which did amount to unwanted sexual conduct which was degrading, humiliating and offensive, and which is, in today’s delicacy of language, “inappropriate”, though that term may cover a range of conduct.[38]Formally, we did not consider the termination of the placement on 30 September as discrimination because of sex, but as an aspect of remedy for the harassment which led her to decide not to continue.
Remedy
[39]Having heard the evidence on the first hearing day, it was agreed that we would give an indication of our decision on liability by 12 noon on the second day, which we did. We then heard evidence on remedy and reserved judgement. We were invited to give an ex tempore decision, but declined because there was insufficient time to type out full reasons and then read them, and there is no facility for recording a CVP hearing.[40]The claimant explained her upset. We do not accept the full account in her witness statement for a number of reasons. It was suggested, without detail, that she had suffered depression following the work experience period. In oral evidence she agreed she had been diagnosed with depression in 2017 and had continued to take antidepressants, with occasional changes of prescription, from then, and have not sought alternative or additional treatment as a result of what occurred. We concluded there was no aggravation of depression. We accepted that her confidence may have taken a knock.[41]The witness statement indicates that she was without work until June 2020 because she found it so difficult to be interviewed after her experience. The schedule of loss shows two periods of mitigation before she got a job at the beginning of March 2020. The first of these was a three-week spell in telephone sales starting 12 November 2019 and paid £1,500 gross per month. She resigned the job voluntarily concerned about the content of what she was selling. She certainly made comprehensive efforts to find other work, applying for traineeships in all sorts of fields, including as swimming instructor and trainee radiographer, although she agreed she had no swimming qualifications or relevant GCSE. She did not in the six weeks between ending with the respondent and starting a new job look seriously at being a waitress or bartender, though for that. It was reasonable to look for office work with a view to developing career rather than the limited hours of minimum wage hospitality jobs.[42]However, in our finding it was unlikely that even if she had completed the two-week work placement the respondent would have gone on to pay her as he promised. At best, in our finding, he would have offered her some commission only deal. The real harm done by her decision to end the arrangement and not go to work on 30th September was that she lost that week, and probably - because she was knocked back and upset – the next, when she might have jobhunting. In other words, she lost the chance of finding paid employment earlier than 12 November. However, it cannot be said that she would have been able to find suitable work earlier than 12 November. There may have been some effect as she asserted, of loss of confidence in interview, but she was not able to describe any interview where she felt she had missed a second interview because of nerves, and she had no track record of relevant employment. That is why it is a loss of chance. Doing the best we can, we award one week’s loss of earnings, taking as a measure the amount she earned in the next sales job, which she said was £1,500 gross, month. That will have been £310 per week after deduction of income tax and national insurance contributions.[43]In addition to that, we award £12 for loss of expenses over the three days. Like most people she will have used a bank card to tap in and out of public transport, and could not be expected to produce receipts other than bank statements.[44]We turned injury to feelings. The schedule of loss seeks £30,000. In our finding the account in the witness statement is exaggerated, and at one point it occurred to us that it may have been cut and pasted from some other statement, as it refers to race as well as sex. There has never been a race claim. There is a difference in race between the claimant and the second respondent, but it is entirely wrong to think that it featured in any way in what happened. The suggestion of depression resulting is exaggerated. We do not blame the claimant for a statement prepared by her solicitor, safety, save that she did sign it with a statement of truth and should have checked it with a more critical eye. Though not trivial, this was harassment at the lower and of the lower band of Vento v Chief Constable of West Yorkshire (2002) EWCA Civ 1871, as updated following Presidential Guidance from time to time. The guidance current as of presentation of this claim set that band at £800-£8,800. We decided the just award was £1,200.[45]We were invited to award aggravated damages because the respondent had denied all events and forced her to a hearing, and had threatened her with an order for costs. This had not been pleaded or included in the schedule of loss. We did not hold there was anything untoward or insulting in the way the claim had been conducted, nor were there any other features indicating an aggravated award. The mention of costs arose from an offer of settlement (which the claimant’s counsel should not have mentioned, as it was privileged). There is nothing improper of itself in mentioning costs in the context of settlement negotiations.[46]The Industrial Tribunals (Interest on Awards in Discrimination The Cases) Regulations 1996 provides that in discrimination cases tribunals may award interest on awards and should consider whether to do so. Interest is awarded at the judgement rate (8%) from the date of injury for awards of injury to feelings, and from the midpoint of loss for awards of specific financial loss. In this case it is 73 weeks from 30 of September 2019 to today, and 72 weeks for the loss of chance award. That makes ££134.77 and £35.67 respectively.[47]The individual and corporate respondents are for practical purposes identical and there is no reason to make an order apportioning liability between them. They are jointly and severally liable. COSTS JUDGMENT No order for costs on the claimant’s application
Remedy
[1]At a hearing on 18 and 19 February 2021 the tribunal found that the respondents had jointly and severally sexually harassed the claimant, and ordered the respondents to pay her £1,692.44 compensation.[2]On 9 March 2021 the claimant’s solicitors applied for reconsideration of judgement. That application was dismissed under rule 72 on 17 March 2021 on ground that it had no reasonable prospect of success.[3]In the same letter, the claimant’s solicitors applied for costs. That letter was copied to the respondents’ representative. On 18 March 2021 the tribunal directed that the respondents were to reply by 1 April identifying the grounds on which the application was disputed, and that the application would be decided on the written representations unless by 8 April either side sought a hearing.[4]Neither party has responded to this letter, and accordingly the tribunal has convened today to discuss the application on the basis of the previous judgements of the tribunal and the claimant’s application.
Relevant law
[5]In tribunals, unlike the courts, costs do not follow the event. The default position is that each side bears their own costs, but there is provision in the Employment Tribunal Rules of Procedure 2013 to make orders for costs in particular circumstances: When a costs order or a preparation time order may or shall be made 76.—(1) 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.[6]Close reading of rule 76 makes it clear that the tribunal must first consider whether one of the threshold tests (vexatious, abusive, disruptive or otherwise unreasonable conduct) has been met, and should then exercise discretion on whether to make an order. At either stage it may have regard to the paying party’s ability to pay (rule 84). There should be some relationship between the conduct of the claim and the costs being awarded, but it need not be a precise causal link.[7]By rule 78, the tribunal may make a summary order for an amount up to £20,000. For an amount over that, it may order a detailed assessment of a bill of costs to be made by the County Court or by an Employment Judge. Grounds of application[8]The claimant’s application is set out here in full: “The Respondents defended the case on the basis that the Claimant was being dishonest and that she was seeking unjust compensation: a) At Paragraphs 10 and 14 of the Grounds of Resistance they describe aspects of the Claim as “highly defamatory” (BP51-2) b) At Paragraph 17 of the Grounds of Resistance they describe an aspect of the Claim as “fictitious” and “entirely fabricated allegations” c) In oral evidence the Second Respondent suggested that the Claimant had tampered and fabricated evidence (the Google plans) to support her claim. d) In oral evidence the Second Respondent suggested that the Claimant had fabricated her case in order to claim compensation. In light of the Tribunal’s findings, that the Claimant’s evidence was to be preferred and true, it must follow that the Second Respondent’s denials were untrue and that his characterization of the Claimant’s claim as being dishonest and fabricated was also untrue. That defence went well beyond merely putting the Claimant to proof and, knowing the claims to be true, the Respondents’ defence of the Claim was vexatious and unreasonable. In particular, the Respondents challenged a default judgment and put the Claimant through the ordeal of a trial in the knowledge that the claim was true. We did warn the Respondent that we would be making an application for costs on 18th February 2021 – copy correspondence attached, along with our Bill of Costs in this matter. Also, at the preliminary hearing of 15th October 2020, the Claimant was awarded £500 by way of a contribution to her costs. This amount still remains due and owing.”[9]The claimant’s warning letter of 18 February was sent on the morning of the first hearing day. Costs to date were estimated at £15,000. There is reference to earlier negotiation. It is stated that the tribunal would have to find that one party or the other lied, and that if the respondents conceded liability the hearing need only go ahead on remedy and the claimant would not pursue an order for costs in that event. There is reference to the tribunal’s previous finding (Employment Judge Russell, order setting aside default judgement October 2020, with order that the respondents pay the claimant’s costs in the sum of £500) that the respondents had unreasonably delayed filing the response. Then there is reference to the respondents having given a costs warning, which the claimant would rely on in seeking an order for aggravated damages and in making its own costs application. Finally, there was a proposal to settle for £7,000.[10]As we have no response from the respondents, the tribunal considered the application as it stands and in the light of the earlier judgement. In the absence of information we assume that either or both respondents have the ability to pay. Discussion and Conclusion[11]As we noted in the judgement signed 19 February 2021, at the conclusion of the hearing, it was perhaps not surprising that there were inconsistencies in the recollection of events on both sides given the length of time that had elapsed. In the second respondent’s case, if it was right that he had not received the claim form sent at the end of 2019, and only saw it in September 2020, he might well have difficulty recalling conversations and events not recorded in any contemporary document. We considered whether by not limiting himself to simple denial, but going further and suggesting that the claimant was defaming him, or fabricating a claim for the sake of gain, the second respondent was acting unreasonably. We concluded that this was not so unreasonable as to merit an order for costs by itself. There are almost always disputes between parties about the facts which the tribunal has to resolve. First, it is not surprising that the second respondent might not remember events as the claimant remembered them, given the lapse of time and lack of documents. Second, the claimant herself was not always consistent about times and places, and although we found that in substance her recollection of the content of conversations was true, we had been troubled by her account of injury to feelings (for example a reference to race, when there was no other mention of race in this claim or to significant depression without any reference to medical records), suggesting she was not herself always as scrupulous as she should have been about accuracy, or free from exaggeration. The assertion that the claimant was fabricating a fictitious claim for gain went beyond saying she was mistaken in her recollection, but her claim did contain inaccuracies. It was not of itself unreasonable conduct to say so, and if it was, it would be inequitable to order costs when the claimant was sometimes in error. It is always unsavoury when unsupported allegations of fabrication are made, (and can weaken a case if there is little evidence for them) but they are not uncommon when parties believe strongly that a claim is falsely made.[12]For completeness, we do not accept that the claimant fabricated Google maps, lacking as we do the technical knowledge to understand how discrepancies might occur, but in any case the maps (showing her route on particular days) played little part in our findings.[13]As for the argument that the respondent should not have had the default judgment set aside knowing the defence to be untrue, we observe first that it is by no means clear that the respondent knew it to be untrue, and he too was entitled to defend his reputation, second that it is better that claims are tried on their merits, thirdly that there is already a costs order made in respect of delay, fourthly, but importantly, it was not unreasonable to defend on the legal ground that an unpaid intern was not entitled to bring a claim under the Equality Act in the employment tribunal, even though on the facts we found we did not accept she was not an applicant for employment. The stress to the claimant of giving evidence on disputed facts could have been avoided if there had been a preliminary hearing on the point, but the claimant did not choose to ask for one. The claimant does not argue that the jurisdiction defence was unreasonable conduct.[14]We do not attach much weight to the costs warning. It was delivered very late, leaving the respondents’ team little time to consider it, or avoid costs being incurred. The claimant’s offer to settle (to avoid a hearing on remedy) was significantly higher than the amount awarded.[15]Nor is it of significant weight in unreasonable conduct that the respondents have not yet paid the October 2020 costs awards. The respondents’ reasons for not paying are unknown and the claimant can enforce the judgment in the usual way in the courts, with interest and the costs of enforcement payable.[16]For these reasons we do not find that the respondents’ conduct of the claim’s defence was unreasonable and merits a costs award.