D v Defence Unlimited International Ltd (London) and others: 2206723/2018
EMPLOYMENT TRIBUNALS
Case No 2206723/2018
Between
DClaimantDefence Unlimited International Ltd (London) and othersRespondent
Before
Employment Judge GlennieDate 22 November 2019
JUDGMENT
[1]The complaints of:(a) harassment related to sex contrary to s.26 of the Equality Act 2010;(b) victimisation contrary to s.27 of the Equality Act 2010; are well founded as against all three Respondents[2]The complaint of breach of contract is well founded as against the First and Second Respondents.[3]Remedies will be determined at a hearing on 18 December 2019, with a time estimate of 1 day, before
REASONS
[1]By her claim to the Tribunal the Claimant, who is identified as D under the terms of an Anonymisation Order, makes the following complaints.[1]Harassment related to sex, or sexual harassment, contrary to s.26 of the Equality Act 2010.[2]Direct discrimination because of sex contrary to s.13 of the Equality Act.[3]Victimisation contrary to s.27 of the Equality Act.[4]Breach of contract. 2. The Respondents disputed those complaints but by a separate judgment that I gave on 14 October 2019, I have struck out the response. 3. By virtue of Rule 37(3) of the Rules of Procedure, the case has proceeded as if no response had been presented. The Respondents have not attended and, beyond seeking a postponement which was dealt with in my decision on the strike out application, have not taken part in the hearing. There has been some email correspondence during the hearing from the Respondents, but that has not taken the matter any further. In an email sent on the evening of 14 October Mr Banayoti wrote opposing an application for costs, repeating a point about jurisdiction which I will deal with in due course, and then in the early hours of this morning Mr Banayoti sent an email stating that he was planning to appeal. The Issues 4. There was a list of issues attached to the Case Management Orders made on 21 March 2019 and a copy of that is attached to these reasons as an annex. Two additional issues were identified, namely:(1) Whether the Tribunal has jurisdiction to hear the claims against the Second and Third Respondents.(2) Whether any of the Respondents employed the Claimant or whether the Claimant did any work for the Respondents. The Identity of the Corporate Respondents
The Issues
[5]The Tribunal’s Orders have recorded the First and Second Respondents as separate entities on the basis that one is a UK registered company and the other a Canadian registered company, and that is reflected in the claim form in terms of the addresses given for those companies. The Third Respondent Mr Banayoti has asserted, for example in his email to the Tribunal of 3 October 2019, that Defence International Unlimited (Ottawa, Canada) is a Canadian corporation. I note that there is a single name with different company registration numbers for the UK and Canada shown on the job offer letter to the Claimant, to which I will be referring in due course. I cannot be sure of the position, it may be that there is a single entity with two registration numbers one in the UK and one in Canada, and it may be that there are two separate entities. It appears to me to be probable that the latter is the case and that there are two companies, one registered in the UK, the other registered in Canada, and so I will proceed on that basis. For ease of reference, however, I will speak of “the company” in these reasons, meaning the First and Second Respondents jointly. The Evidence and Findings of Fact[6]The Claimant gave evidence by reference to a witness statement. There was a bundle of documents prepared by the Claimant’s representatives and page numbers that follow refer to that bundle.[7]The evidence in the case necessarily comes from the Claimant alone. The Respondents through Mr Banayoti have challenged the Claimant’s case in the most general terms in the ET3 and in correspondence on the basis that it is untrue. The response has been struck out, but I still have to assess whether or not I accept the Claimant’s evidence. I find no reason not to do so. There is nothing to suggest that I should not accept the Claimant’s evidence, on the balance of probabilities, and I do so.[8]The background to the claim is that the company’s business is advising on, and the provision of equipment for, security purposes. Its business is international. The Claimant describes Mr Banayoti as the owner of the company and elsewhere he is described as being the CEO. His precise status is not clear from the documents that I have seen, but he has corresponded extensively with the Tribunal and with the Claimant’s representatives on behalf of all of the Respondents, and I am satisfied that in practical terms the company is his. The Claimant is a graduate in sociology with a Masters and a PHD in addition, and has research experience in social media and socio-economic matters.[9]It is a matter of background to the claim that in August and September of 2016 the Claimant and Mr Banayoti had a personal relationship, having made contact via a dating website. That relationship ended, although the Claimant said that there was sporadic contact between her and Mr Banayoti between December 2016 and November 2017.[10]Moving to 2018 (and all dates that I give now will be in that year) there was an email at page 276 on 14 May from Mr Banayoti to the Claimant, which asked her what kind of money she was looking to make. The Claimant replied on the same day that the kind of money she was looking to make was that which could sustain the life style she liked to lead, and she suggested perhaps 250,000 in two months. Mr Banayoti had mentioned dollars, and I assume that the Claimant was thinking of $250,000 over the course of two months.[11]Then on 22 July 2018 Mr Banayoti sent an email to the Claimant with a link to a recruitment website where the role of Senior Executive Assistant with the company was advertised. The Claimant’s evidence was that it was said that the role would be mainly based in Washington DC, but would involve travel to offices elsewhere including in the United Kingdom, Canada, Malta and the United Arab Emirates. The Claimant applied for the job by an email to Mr Banayoti who replied on 22 July at page 136. He said in his reply “please no need for anyone to know that we knew each other in the past, thank you” to which the Claimant replied on the same day “of course”.[12]The Claimant was then interviewed by two other individuals on 23 July and again by one of those two on 29 July. On 3 August the Claimant received the document at page 124. This is the one that I have already referred to as containing a job offer, and it gives the company’s address in Canada. It is signed by Mr Banayoti on behalf of Defence Unlimited International. It is an important document and I will read it in full: “Defence Unlimited International is pleased to offer you the position of Senior Executive Assistant. As we discussed your starting date will be 1 September 2018, the starting salary is (Canadian) $90,000 per year and is paid on a monthly basis. Direct deposit is available and preferred. Full medical coverage will be provided through our company’s employee benefit plan and will be effective on 1 December 2018. Dental and optical insurance are also available. You have a trial period of three months of the starting date 1 September 2018 to 1 December 2018. If you choose to accept this job offer please sign the second copy of this letter and return it to me at your earliest convenience. When your acknowledgement is received we will send you employee benefit enrolment forms and an employee handbook that details our benefit plans and retirement plan. As discussed Defence Unlimited will provide verified moving and relocation expenses up to $15,000 provided original receipt provided and approved by me. We look forward to welcoming you to the DUI team, please let me know if you have any questions or I can provide any additional information.” There was then a space for the Claimant to sign under the words “accepted” and the document bears a stamp which says Defence Unlimited International, giving a Canadian company number and a United Kingdom company number.[13]I find that this was an offer of employment to start on 1 September, and that the Claimant then accepted that offer by signing and returning a copy of the document as asked.[14]On 10 August one of the two interviewers sent an email to the Claimant at page 161 in which he said that he would need the Claimant to help him finish some work, and he also offered his congratulations.[15]On 15 August Mr Banayoti telephoned the Claimant and during the conversation he said words to the effect that she was so pretty that his fiancée would be jealous and that they would have to be careful. He asked the Claimant whether she had met anyone since the end of their relationship, she answered that she had not and Mr Banayoti replied “we need to find you someone to date then”. The Claimant said she wanted to maintain a professional relationship and did not want to mix business and pleasure. Later the same day Mr Banayoti called the Claimant again and asked whether she had a boyfriend or was dating anyone, he said he was still sexually attracted to her and had feelings for her. He said that he wanted to stay at Niagara Falls with her and that he liked her so much that if they were in a hotel room together she would end up pregnant.[16]On 16 August Mr Banayoti asked for a short biography of the Claimant to add to the company’s website, and that and a picture of the Claimant were uploaded. At this stage the Claimant was expecting to go to the USA to work and she made arrangements to move out of her two addresses in the UK. She had her belongings shipped to the family home in Cyprus. At the end of August Mr Banayoti set up a confidential chat on a system named Telegram, which I am told deletes messages automatically after a short period. Mr Banayoti said that the Claimant’s visa for the USA would take about 4-6 weeks to acquire. The Claimant pointed out that she had nowhere to stay after mid September. Mr Banayoti said that he would pay if the Claimant extended her tenancy, and she did so up to the end of September. A removal company collected the Claimant’s belongings and Mr Banayoti told her that she should send the invoice for that to the company.[17]The Claimant’s evidence was that she worked for the company on an ad hoc basis from 1 September. She remained in London and worked from home. She gave as examples of work that she did researching and setting up VIP travel accounts, opening bank accounts and setting up her own company email. There was further discussion about where the Claimant was to be located. Mr Banayoti said that because of the time it would take to obtain a US visa the Claimant would instead be based in Canada.[18]It was then proposed on about 11 September that the Claimant should go to Malta in connection with a business project. At this point Mr Banayoti told the Claimant that he had broken up with his fiancée. On about 13 or 14 September Mr Banayoti made some reference to expenditure that he had incurred during the 2016 relationship, that in relation to items he bought for the Claimant. There was discussion on 17 September about the proposed trip to Malta, Mr Banayoti had a residence there and he suggested that the Claimant could have one floor of this to herself. He then added “can I sneak in to your room at night” and he asked whether she was using contraception.[19]On the same day the Claimant told Mr Banayoti that she was jumping up and down with excitement at the prospect of the trip. Mr Banayoti replied with words to the effect that the only way he wanted her to jump up and down was on top of him. The Claimant said that she wanted to work on a professional footing and that she was not interested in his sexual advances. Then on 25 September at pages 320-324 there were messages between the Claimant and Mr Banayoti in which the Claimant was pressing him to confirm the arrangements for her to travel to Malta as she was concerned about the prospect of being left with nowhere to live. Mr Banayoti replied that he and a colleague were discussing the Claimant going to the USA after all, as the paperwork for Canada was taking a long time to complete. The Claimant asked whether it was possible for her to stay in Malta, Mr Banayoti said it was not. Shortly after this Mr Banayoti ceased communicating with the Claimant.[20]The Claimant instructed solicitors and on 11 October they wrote to Mr Banayoti at pages 225-228. The letter set out the Claimant’s account of events as I have related above. It claimed the Claimant’s salary from 1 September and relocation expenses. It complained of sexual harassment and discrimination on grounds of sex, and said that it should be treated as a formal grievance in accordance with the ACAS code. Then on 23 October Mr Banayoti wrote to the Claimant as follows, at page 221: “Re: Termination of Employment With reference to your employment with Defence Unlimited which employment was to commence on 1 September 2018 as per your letter of appointment and terminated via a telephone conversation dated 21 September 2018 (“Effective Termination”). Please note that you never actually worked or performed any actual work for Defence Unlimited. You will be remunerated adequately for the work carried out up to the Effective Date of termination which whereby it was discussed that your employment with the organisation was going to be an impossible with the current state of work visas in Canada and the US, your employment would not have been able to commence appropriately before 6-9 months (which is the current time to obtain a work visa) if at all given the current situation. Kindly note that your probation period was active and hence your immediate termination was not against any practice or law, given the situation and that we have internally addressed your situation. With the visa difficulty it is not viable for us to retain you and you cannot perform your duties adequately remotely. Remuneration due for your work with the organisation will be settled up to the date of your Effective Termination and you are therefore obviously will not be owed any further compensation by the organisation, either via payment to you directly if a mutual release is signed, failing that, the funds will be deposited in court or an escrow account pending such a release signed. We regret that you have resorted to threatening the organisation to such an extent given that your official employment in North America had not even commenced and your contribution to the organisation, although appreciated, was very limited. We wish you all the best for your future. We will not be providing you with any references”.[21]I find the letter somewhat ambiguous. It is headed “termination of employment”, it then seems to say that the employment never commenced and that the Claimant never did any work, but then says her employment was terminated and she will be remunerated for the work done.[22]The Claimant denies that any telephone conversation place on 21 September terminating her employment. I accept her evidence about that. Such a conversation would be inconsistent with the messages that were exchanged on 25 September about going to the USA rather than to Canada.[23]On 13 November solicitors instructed by the company wrote to the Claimant’s solicitors at pages 232-234. In summary, this letter took a jurisdictional point saying that the Claimant appeared to be unclear as to who was the employer, and said that both parties’ intention was that the Claimant was to be based in Canada, and so they said that any claim would have to be brought in Canada. The letter said that the Claimant had not commenced employment with the company nor, to the extent alleged, with Mr Banayoti; that the intended start date of employment was pushed back and the only tasks undertaken were preparatory to the employment commencing.[24]Under the heading “allegations against Mr Banayoti” the letter said the allegations of inappropriate conduct were vehemently denied, and it took a point that it seemed convenient that the allegations related to telephone conversations or messages that were automatically deleted.[25]The Claimant then presented her claim to the Tribunal on 21 November 2018. I should record that the Claimant has never been paid any salary or any relocation expenses by any party. The Applicable Law and Conclusions[26]The first issue for me to address is whether the Tribunal has territorial jurisdiction to hear the Claimant’s complaints against Mr Banayoti and against the Canadian company, assuming that the latter is a separate entity from the UK company. Mr Banayoti has asserted that he is a Canadian national, and for the purposes of this decision I assume that this assertion is correct.[27]The facts that Mr Banayoti is a Canadian citizen and the Canadian company is registered or domiciled in Canada do not as such deprive the Tribunal of jurisdiction. Its jurisdiction is not confined to UK citizens or UK companies. There were potential issues as to service of the proceedings on the Respondents if they were domiciled outside the UK. I find that any such issues were resolved by the orders made by Judge Potter on 13 May 2019. These included a finding that the Respondents had in that respect submitted to the jurisdiction of the Employment Tribunal by presenting a response and in attending (by telephone) the previous preliminary hearing.[28]This leaves the question of the territorial reach of the Equality Act and/or (for the breach of contract claim) the Employment Tribunals (Extension of Jurisdiction England and Wales) Order 1994. The Equality Act does not contain any express provision about territorial jurisdiction. Article 3 of the Extension of Jurisdiction Order, in summary, says that the Tribunal has jurisdiction over a contract claim brought by an employee (subject to financial limits) where the civil courts of England and Wales would have such jurisdiction.[29]The authorities on the territorial reach of employment rights have generally risen in connection with complaints of unfair dismissal and therefore the Employment Rights Act 1996. I find that the position as regards to territorial reach under the Equality Act must be at least the same, or at any rate no more restricted than under the Employment Rights Act, and therefore those authorities are of assistance to me. In Ravat v Halliburton Manufacturing Services Limited [2012] UKSC 1 in the Supreme Court, Lord Hope made the following observations: “26 …..The question in each case is whether s.94(1) applies to the particular case notwithstanding its foreign elements. Parliament cannot be taken to have intended to confer rights of employees having no connection with Great Britain at all. The paradigm case for the application of the sub section is, of course, the employee who was working in Great Britain……. 27 ..…the starting point…..is that the employment relationship must have a stronger connection with Great Britain than the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule. The open-ended language of s.94(1) leaves room for some exceptions where the connection with Great Britain is sufficiently strong to show that this can be justified. The case of peripatetic employee who was based in Great Britain is one example. 29.……The question of fact is whether the connection between the circumstances of the employment with Great Britain and with British Employment Law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.[30]Then subsequently in the Court of Appeal in Bates van Winkelhof v Clyde & Co LLP [2013] ICR 883 Elias LJ made observations about a comparative exercise, saying that this would be appropriate where the Claimant was employed wholly abroad. There would then be a strong connection with that other jurisdiction and Parliament could be assumed to have intended that in the usual case that jurisdiction, rather than Great Britain, should provide the appropriate system of law. Elias LJ then referred to paragraph 9 of Lord Hope’s judgment that I have mentioned above and in relation to the comparative exercise, observed as follows: “…..it is not necessary where the applicant lives and/or works for at least part of the time in Great Britain, as is the case here. The territorial attraction is then far from being all one way and the circumstances need not be truly exceptional before the connection with the system of law in Great Britain can be identified. All that is required is that the Tribunal should satisfy itself that the connection is, to use Lord Hope DPSC’s words, sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the Tribunal to deal with the claim”.[31]With all of that guidance in mind, I accept Mr Milsom’s submission to the effect that the Canadian connection in this case is a distraction without substance. It is true that the salary for the position was expressed in Canadian dollars, and that is a factor that indicates a connection with Canada. There was, however, in fact nothing more than a transient proposal that the Claimant would be based in Canada. That proposal came and went, as did a proposal that she would be based in the USA, or indeed that she would do some work in Malta. The expression of the salary in Canadian dollars seems to do no more than reflect Mr Banayoti’s base, and that of the Respondents’ activities, being in Canada. By contrast, I find that the connection with the UK is however clear and strong. The following factors lead me to say this:31.1 The Claimant is a British citizen.31.2 The Claimant was recruited in the UK31.3 The Claimant did some work before the ending of her employment, and at all times when she did work for the Respondents, she was in the UK.31.4 The employment was terminated in the UK, in the sense that this was where the Claimant was when she received the letter stating that her employment was terminated on 23 October. It was addressed to her at her home in London and, although it contained an assertion that there had been a termination during a telephone conversation which I have found was not the case, even if that had been true the Claimant was in the UK when any telephone conversations took place.31.5 All of the events on which the Claimant relies occurred when she was in the UK.[32]I therefore find that the Tribunal has territorial jurisdiction over the Equality Act complaints. As regards breach of contract, for the same reasons I find that the Civil Courts would have jurisdiction over a breach of contract claim in the circumstances, and so therefore does the Tribunal.[33]The second issue to address is whether the Claimant was employed, and if so, by whom. The definition of employment for Equality Act purposes is in s.83(2a), which provides that employment means employment under a contract of employment, a contract of apprenticeship, or a contract personally to do work. Article 3 of the Extension of Jurisdiction Order refers simply to a contract of employment.[34]It is not essential for an employee to actually do work for there to be a contract of employment, although there may be situations where that can be relevant evidence going to whether or not there was a contract. Here, I find that the document at page 124 shows that there was an offer and an acceptance. The word “employee” is used in it three times. It describes itself as a job offer, gives a start date of 1 September, and provides for a salary. The Claimant returned her acceptance in the manner that she was invited to do.[35]I find therefore that there was a contract of employment. To the extent that the UK and Canadian companies are separate, the stamp on the document refers to both, and I find that the contract was between the Claimant and both companies.[36]I also find, to the extent that it may be relevant, that the Claimant did some work pursuant to the contract, as I have already described above.[37]I turn then to the complaints under the Equality Act. I have in mind the burden of proof as provided for in s.136 of the Act as follows: (2) If there are facts from which the Court could decide in the absence of any other explanation that a person (A) has contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection 2 does not apply if A shows that A did not contravene the provision.[38]The predecessor of that provision was considered by the Court of Appeal in the well-known authorities of Igen v Wong and Madarassy v Nomura. Those authorities envisaged a two-stage test whereby the Tribunal in the first instance would consider whether the facts that had been established were such that it could properly find in the absence of an explanation that discrimination had occurred. In Madarassy the Court of Appeal emphasised that this would have to be a finding that could properly be made, and that there should be something beyond a difference in protected characteristic and a difference in treatment to justify the making of such a finding. That something more need not of itself be very significant, but it must be present. If the facts are of that nature, then the burden is on the Respondent to prove that it did not in any sense whatever discriminate against the Claimant.[39]The definition of detriment in s.212(1) the definition of detriment in means that complaints of harassment and direct discrimination are mutually exclusive. There cannot be a finding that one act amounts to both, but a Claimant may rely on them in the alternative. That being so, I find it appropriate to consider the complaint of harassment first. Section 26 of the Equality Act provides as follows:(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) violating 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 sub section (1)(b).(3) A also harasses b if – (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex; (b) The conduct has the purpose or effect referred to in subsection (1)(b); and (c) Because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether conduct has the effect referred to in sub section (1)(b), each of the following must be taken into account – (a) The perception of B, (b) The other circumstances of the case, (c) Whether it is reasonable for the conduct to have that effect.[40]I have also borne in mind the BHRC Code of Practice, paragraph 7.13 which says the following: “Conduct of a sexual nature can cover verbal, non-verbal or physical conduct, including unwelcoming sexual advances”.[41]There are nine allegations of harassment. My findings of fact are such that I have found that each of these occurred. There are two important points of context to be borne in mind, one is that the Claimant and Mr Banayoti had had a relationship in 2016, the other is the exchange which I have already mentioned at page 136, where Mr Banayoti gave the indication and the Claimant agreed that no one need know about that relationship, also he said that he was getting married.[42]These matters and the exchange of page 136 in particular assist me in concluding that the comments in allegations 1-7 were unwanted by the Claimant. This is further evidenced by the Claimant’s statements on about 15 August that she did not wish to mix business with pleasure and that she wanted a professional working relationship, and further on 17 September that she was not interested in Mr Banayoti’s sexual advances. It is the case that the Claimant did not protest on other occasions, but I accept her evidence that Mr Banayoti was in a position of power and that she did not know what to say to him on those occasions.[43]Remaining with s.26(1), was this conduct related to the protective characteristic of sex? I find that it was, because the comments were largely gender specific and would have not been made to a man. Alternatively under s.26(2) I would find that allegations 2, 3, 4, 5 and 7 amount to conduct of a sexual nature because they involve an expression of sexual attraction and the suggestion of sexual activities. Allegations 1 and 6 are not so specific and would not in my judgment amount to conduct of a sexual nature, but this is not material given my finding on the first point.[44]The third element of the test of harassment is whether the conduct had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her, and I will refer to this in shorthand as having the purpose or effect of harassing her. 40 I first considered the effect, as this is perhaps somewhat easier to address on the evidence that I have available. I have reminded myself of subsection (4) of s.26. I find that the conduct did have the effect of harassing the Claimant. I accept that she felt threatened by the comments, and I find that repeatedly making such remarks and in allegation 6 referring to matters that occurred during their 2016 relationship, Mr Banayoti caused the Claimant to perceive that her dignity was being violated and that a humiliating or offensive environment was being created for her. 41 I find that it was reasonable for this conduct to have that effect in the circumstances. The Claimant had asked for and was entitled to expect a professional working relationship. 42 The complaint of harassment is therefore made out in respect of the seven comments. Allegation 8 is the dismissal and allegation 9 is its manner, in particular the non-payment of salary and relocation expenses. Mr Milsom argued that in the absence of any evidence of a non-discriminatory reason for the termination of the Claimant’s employment the irresistible conclusion was that the decision must in part, at least, have been related to sex. He submitted that the Claimant would have been treated differently had she been a man. In essence I accept that submission. I find as a matter of probability that it is not a coincidence that Mr Banayoti’s statements about the arrangements for the Claimant’s employment became vague quite quickly after the Claimant expressed a lack of interest in his advances and that his communications with her ceased altogether within about two weeks. 43 Curiously, perhaps, the link is strengthened in my judgment by the incorrect assertion in the letter of 23 October that the Claimant’s employment had been terminated on 21 September. That was only four days after the Claimant had rejected Mr Banayoti’s advances, and it seems to me that this may be an inadvertent revelation of when it was, and by extension why it was, that Mr Banayoti decided that he no longer wanted the Claimant in the organisation. It seems to me that as regards these two allegations, subsection (3) of section 26 is the most obviously applicable. 44 I consider that the facts are such that I could properly find that Mr Banayoti dismissed the Claimant at least in part because of her rejection of his advances. The Respondents have not discharged the burden of proving that they did not discriminate against the Claimant in this way and so the complaints of harassment succeeds in relation to the dismissal.[45]The position is similar as regards the failure to pay salary and relocation expenses. In correspondence and in the response the Respondents advanced the argument that the Claimant was not employed or did not work, an argument that I have addressed above. In the absence of any legitimate reason for not being paid being advanced, I find that I could properly conclude that there was at least an element of this being because of the rejection of Mr Banayoti’s advances. Again, the Respondents have failed to discharge the burden of proving otherwise. I therefore find that the complaint of harassment is well founded in this regard.[46]It follows that all the complaints of harassment are well founded. I turn then to the complaint of victimisation. Section 27 of the Equality Act provides as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act; or (b) A believes that B has done, or may do a protected act.(2) Each of the following is a protected act – ……………. (d) Making an allegation, whether or not express, that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given or the allegation is made in bad faith[47]The first question is whether the solicitors’ letter of 11 October was a protected act. It made an allegation of contravention of the Equality Act as it complained of sexual harassment and direct discrimination. The allegations were not false and they were not made in bad faith, and so therefore this was protected act.[48]The first detriment relied on was failing to investigate the contents of the 11 December letter. Lest it be thought that this is something of a circular complaint, it should be noted that the complaints in that letter went beyond the allegations of breach of the Equality Act. It is evident that the Respondents did not investigate those complaints: there was simply a denial of the allegations against Mr Banayoti and the points taken about jurisdiction and employment that I have already referred to.[49]Are the facts such that, in the absence of an explanation, I could properly find that an element of the reason why the Respondents did not investigate the Claimant’s complaints was the allegations that had been made under the Equality Act? I find that it would be possible to infer this from the failure to investigate, the focus on jurisdictional arguments, and the failure to advance any explanation for there being no substantive investigation of the Claimant’s complaints. That means that the burden is again on the Respondents to prove that they did not discriminate by victimising the Claimant. They have not discharged that burden.[50]In relation to the second detriment relied on, being the failure to pay salary and expenses, the same reasoning applies. It would be possible for the Tribunal to find that failure to pay was in part because the Claimant had made the allegations under the Equality Act. Again the burden of proving otherwise is on the Respondents, and it has not been discharged. The complaint of victimisation is therefore well founded.[51]I turn then to the complaint of breach of contract. I have found that there was a contract of employment in the terms of the document at page 124. The Claimant was therefore entitled to salary from 1 September until the termination of her employment, which I have found took place on 23 October. I find that the Claimant has not been paid any moving or relocation expenses. It was a term of the contract that they would be paid subject to approval. I have not heard any argument on the question of approval, but subject to anything further that I hear it seems to me that there would be an implied term or it would be understood that such approval would not unreasonably be withheld, and that therefore there has been a breach of the term as to payment of expenses, the quantum of which would have to be assessed.[52]There remain two further points for me to make. One is a point that I should have dealt with earlier in relation to the question of employment. It is the case that on one or two occasions the Claimant made reference to starting work in terms of looking forward to starting work in Malta. On another occasion in one of the messages she made some reference to her employment not having begun or the job not having begun. The latter was in the context of not getting paid, and I find that both of these were colloquial statements of the situation and should not be interpreted as meaning the Claimant was in any way recognising or asserting that she had not started or her contract of employment had not started.[53]The final question is as to which Respondents should be liable for which complaints which I found to be well founded. All of the acts of harassment were committed by Mr Banayoti. He is clearly in charge of the companies and he has spoken for them during the litigation. I am satisfied that he must also have been responsible for the decisions that were made by the companies that are relevant to the victimisation complaint. Therefore, I find that all three of the Respondents are liable in respect of the Equality Act complaints. The companies were the employer, and so it is the companies that are liable in respect of the breach of contract complaint.[54]Remedies will be determined at a further hearing on 18 December 2019.
The Issues
[1]By a judgment sent to the parties on 25 November 2019 I found in the Claimant’s favour on the following complaints:1.1 Sexual harassment / harassment related to sex.1.2 Direct discrimination because of sex.1.3 Victimisation.1.4 Breach of contract.[2]My findings about the facts of the complaints may be found in the reasons that I gave in respect of that judgment.[3]This hearing was listed in order to determine remedies, and to determine the Claimant’s application for costs. Procedural matters regarding this hearing[4]It will be necessary to refer to the wider procedural history in relation to certain issues on remedies, and in relation to the costs application. There were, in addition, certain procedural matters affecting the present hearing which I should record.[5]On 27 November 2020 I heard and rejected the Respondents’ application for reconsideration of the liability judgment. I did not at that stage decide the question of the extent to which the Respondents should be permitted to participate in the remedy hearing, reserving this to be determined in the light of the circumstances applying at the time of that hearing. I made an order for the Respondents to produce any evidence on which they wished to rely in relation to remedy by 29 January 2021. The Third Respondent sent a statement dated 22 December 2020 at pages 499L-N, in which he effectively challenged the decision on liability and commented on the Claimant’s credibility. (The Respondents had appealed against the liability judgment, the last surviving element of which appeal was finally dismissed on 2 February 2021).[6]The present hearing was listed for 2 days over 16-17 March 2021. I was required to deal with another matter on the morning of 16 March, and I directed that the hearing would commence at 2.00 pm, with CVP joining instructions being sent to the parties accordingly.[7]The Third Respondent sent an email to the Tribunal at 12.35 on 16 March stating that the instructions did not include local “dealing” (I assume dialling) from Canada, and that the link did not work.[8]There was no attendance at 2.00 pm on behalf of the Respondents. The Claimant and Mr Milsom were present. I stated that I would read the relevant documents during the afternoon and commence the hearing at 10.00 am on 17 March, and I caused an email to be sent to the parties confirming this.[9]At 10.00 am on 17 March I was unable to connect to the internet and at 11.25 am I commenced the hearing by telephone, with a view to deciding in the first instance whether to proceed in the Respondents’ absence. I heard submissions on that point from Mr Milsom and decided that I would hear the case in the absence of the Respondents, commencing at 12.30.[10]In the event, the Third Respondent was present (by audio only) when the hearing resumed by CVP at 12.30. He stated that he asked to be excused from the hearing as he had a medical appointment, and that he wished to rely on a document dated 16 March 2021 and headed “Witness statement by the Respondents”, which he stated contained his final thoughts. The Third Respondent did not ask for a postponement of the hearing and I continued with it, on the basis that the document of 16 March contained the submissions that the Respondents wished to advance.[11]The Claimant’s advisers had prepared a bundle of documents for use in this hearing, and page numbers that follow in these reasons refer to that bundle.[12]I heard evidence from the Claimant. She confirmed the contents of her 5 witness statements to date, and answered questions from me. In answer to me, the Claimant said that the Respondents told her that there would be a 6-month trial period in the job, and that it would then become permanent. She said that the Third Respondent told her that she should be ok in the job as he was confident of her credentials and qualifications.[13]The Claimant also said that, following her dismissal, it was some time before she got back on her feet. She had found that, when applying for jobs, she was receiving rejections without explanation or was being told that she was over-qualified; and that if she omitted reference to her PhD, she was told that there was a gap in her CV.[14]I noted that the Respondents’ witness statement was headed with the Claimant’s name, in spite of the anonymity order that applies to her in these proceedings. The statement contended that the claims were false, made complaints about the Claimant’s lawyers, and stated that the Respondents were now without lawyers as they could not continue to pay for them. It continued that the Third Respondent had suffered reputational damage as a result of the claim.[15]With regard to remedy issues, the Respondents’ statement made the following points:15.1 The Claimant was not working before or after her employment with the Respondents, other than as an escort.15.2 The Claimant did not do any work for the Respondents and so (by implication) should not recover any salary.15.3 There was a claim for the cost of shipping the Claimant’s possessions, but to where?15.4 There was a claim for rent and a deposit, did she get the deposit back?
Remedies
[16]Mr Milsom referred to the Schedule of loss at pages 680-682 and sought the following by way of compensation. 16.2 In respect of the Equality Act claims:16.2.1 Loss of earnings for the period 1 September 2018 to 17 October 2019.16.2.2 Injury to feelings.16.2.3 Aggravated damages.16.2.4 Interest. 16.3 In respect of the breach of contract claim, relocation costs and expenses of £11,865.02. 16.4 In respect of both, an uplift of 25% for filing to observe the ACAS Code of Practice Equality Act claims[17]The basic measure of compensation for discrimination is that which will put the Claimant in the position she would have been in but for the discrimination: Ministry of Defence v Cannock [1994] ICR 918.[18]There are considerations which may lead to a reduction in compensation. One is a failure to mitigate, where the burden is on the Respondent to prove that there has been such a failure: Cooper Contracting v Lindsey UKEAT/01854/15. In Chagger v Abbey National PLC [2009] EWCA Civ 1202 the Court of Appeal held that, where there is some prospect that a a non-discriminatory course of events would have led to the same outcome, the compensation should be reduced accordingly, although the Tribunal should not engage in excessive speculation in this regard.[19]The claim for loss of earnings was based on the annual salary of 90,000 Canadian dollars applicable to the Claimant’s employment. The claim was limited to the period from the commencement of the employment (1 September 2018) to the liability hearing (15 October 2019). Mr Milsom explained that this was proposed as a pragmatic way of ensuring that there was no risk of over-compensating the Claimant.[20]I could see merit in this approach. It would be unrealistic to treat this as a case giving rise to a lifetime’s or long term loss of employment prospects, and the Tribunal would have to make some finding as to the point beyond which loss of earnings could not be attributed to the discrimination. There was, however, no evidence to support any failure to mitigate on the Claimant’s part: I have already referred to her evidence about her attempts to find alternative employment. Nor was there any particular factor that would suggest a reduction should be made in accordance with Chagger: I find that this employment was no more or less likely than any other to end at any particular point, in the absence of discrimination. I did not find the 6- month trial period to be of particular significance: the Claimant might, or might not have passed that in the absence of discrimination. There was no evidence to suggest any particular risk that she would not.[21]I concluded that the approach advocated by Mr Milsom, if anything, tended to err in favour of the Respondents. I therefore adopted it and awarded loss of earnings for the suggested period, less the sums actually received.[22]The figures are shown in the schedule of loss. The schedule suggests that gross figures should be used as the Claimant’s salary would have been paid to her overseas. I do not understand this to mean that the Claimant would not have been liable to pay any income tax in any jurisdiction. As the salary was expressed in Canadian dollars, it may be inferred that the payment was to be made in Canada: but I have no evidence of what the applicable tax regime would have been.[23]In other circumstances, a Tribunal might call for further submissions on this point. I am anxious, however, to avoid any further delay in bringing this matter to a conclusion. I have therefore taken the pragmatic approach of applying UK income tax to the gross figures given.[24]The Claimant’s gross salary over the period would have been £57,921.05, spread over 2 tax years (2018/19 and 2019/20). In the first of these years, 1 September 2018 to 4 April 2019, there would be 35 weeks at a gross rate of £990.10, so £990.10 x 35 = £34,653.50. The balance in the next tax year would be: £57,921.05 - £34,653.50 = £23,267.50.[25]In 2018/19 the Claimant would have paid no income tax on £12,500 and 20% on £22,153.50 (so, tax of £4,430.70). She would have paid no NI contributions on £9,500 and 12% on £25,153.50 (so, NI of £3,018.42). The net figure for 2018/19 would therefore have been £34,653.50 - £4,430.70 - £3,018.42 = £27,204.38.[26]In 2019/20 the gross salary would have been £23,267.50. The Claimant would have paid no income tax on £12,500 and 20% on the balance of £10,767.50, giving £2,153.50. There would have been no NI on £9,500 and 12% on £13,767.50, giving £1,652.10. The net figure for 2019/20 would therefore have been £23,267.50 - £2,153.50 - £1,652.10 = £19,461.90.[27]The total net loss of earnings is therefore £27,204.38 + £19,461.90 = £46,666.28. From this there has to be deducted by way of mitigation the total sum earned over the period (£3,840.00) on which there was no tax or NI liability. The final total is therefore £42,826.28.[28]Awards for injury to feelings are assessed by reference to the Vento guidelines. I first considered which bracket was appropriate. The Claimant’s employment was short-lived, so this was not a case of discriminatory conduct continuing over a period of years. There was, however, significant verbal harassment, the Claimant was not paid during her employment, and she was dismissed because she rejected the Third Respondent’s advances. She gave up her home on the basis that she would be provided in connection with her job, resulting in her not having a permanent home following her dismissal.[29]In her fifth witness statement the Claimant stated that she felt belittled by and ashamed of her experience with the Respondents, and that she had lost confidence and felt less able to trust others. In her third witness statement the Claimant described herself as feeling crushed, devastated and homeless, and that at times she felt suicidal. I accept that evidence, as it seems to me to be plausible that she would experience such feelings. The Claimant also stated that the Respondents’ conduct left her feeling depressed: her she was referring as much to the conduct of the proceedings (on which I shall comment below) as to the original discriminatory actions. I accept this evidence also.[30]I first considered which Vento band was appropriate. I find that the seriousness of the consequences for the Claimant of the discrimination means that this is a higher band case, although in the lower half of that bracket. The current range of awards within the higher bracket is £27,000 to £45,000, plus an uplift of 10% in accordance with De Souza v Vinci Construction [2017] IRLR 844. I find that the appropriate award is £30,000, uplifted by 10% to £33,000.[31]Underhill P addressed the situations in which an award of aggravated damages might be made in Tribunal proceedings in Commissioner of Police of the Metropolis v Shaw [2012] ICR 464. These were:27.1 Where the manner in which the wrong was committed was particularly upsetting.27.2 Where there was a discriminatory motive.27.3 Where subsequent conduct – such as conducting Tribunal proceedings in an unnecessarily offensive manner – adds to the injury.[32]I find all three of these to be present in this case. It was particularly upsetting for the Claimant to be subjected to sexual advances from the Third Respondent and, when she rejected them, to be dismissed – and dismissed at a time when she had committed herself to the job by giving up her private accommodation. There was a discriminatory motive, in that the Third Respondent’s intention in dismissing the Claimant was to effect a form of retaliation for her rejection of his advances.[33]The Respondents have also, I find, conducted the Tribunal proceedings in an unnecessarily offensive manner. Some of this offensive conduct has been directly aimed at the Claimant. The Third Respondent has repeatedly referred to the Claimant’s apparent activities as an escort – most recently in his witness statement of 16 March 2021, headed as I have observed with the Claimant’s name – without showing how these may be relevant to the issues to be decided. He also said that he wanted to warn other men about what he described as “the Claimant’s traps”. Some of the offensive conduct has been directed at the Claimant’s lawyers. In the 16 March witness statement, the Third Respondent accused them of unprofessionally and unethically rushing the case through, without giving him a chance to defend himself.[34]There is also a wider sense in which the Respondents’ conduct of the litigation merits criticism and has added insult to injury. For the earlier procedural history I refer to my judgment striking out the response, and to my judgment on the Respondents’ reconsideration application, sent to the parties on 29 December 2020. The more recent procedural events are described above.[35]I find that, far from the Claimant’s lawyers being guilty of trying to rush the case through, the Respondents have sought to obstruct and delay its progress throughout. It would be disproportionate to repeat the procedural history, which I have described elsewhere at the different stages of the litigation. The Respondents have scarcely ever complied with the Tribunal’s case management orders, and have done very little to engage with the issues in the case. Instead, the Third Respondent has erratically taken part in hearings; has sought postponement without producing the evidence necessary to support the application; and has sought a reconsideration, again without providing the necessary medical evidence to support the main ground for that. In the present hearing, he produced what I find to be an unhelpful and inflammatory witness statement, and departed from the hearing.[36]I have reminded myself that an award of aggravated damages is intended to compensate the recipient, not to punish the wrongdoer. I find that the Respondents’ conduct of the litigation, through the Third Respondent, must have added and did add considerably to the distress that she has suffered. I have already allowed for some of this in the award for injury to feelings, and I am aware of the need to avoid double recovery for the same loss. With that in mind, I award aggravated damages of £8,000.[37]Section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that: If, in any proceedings to which this section applies, it appears to the Employment Tribunal that –(a) The claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,(b) The employer has failed to comply with that Code in relation to that matter, and(c) The failure was unreasonable, the Employment Tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25 per cent.[38]I accept Mr Milsom’s submission that the ACAS Code of Practice 1 (Disciplinary and grievance procedures) applied to the protected act constituted by the solicitors’ letter of 11 October 2018. It is established that a protected disclosure may fall within the grievance provisions of the Code (Ikejiaku v British Institute of Technology UKEAT/0243/19) and I agree that in principle the position should be the same with regard to a protected act within section 27 of the Equality Act.[39]The Respondents took no steps under the Code and took a confrontational approach from the outset. There was no attempt to hold a meeting with the Claimant, or to decide on appropriate action: there was a denial of the complaints against the Third Respondent and assertions that the Claimant was never employed and that the Tribunal did not have territorial jurisdiction.[40]I have asked myself whether it is relevant for the present purpose that the Code only applies to one legal complaint under the Equality Act, i.e. the complaint under section 27. I find that it is not, because the solicitors’ letter referred to all of the matters which have become the subject of these proceedings.[41]Taking all of these matters into account, I find that the failure to comply with the Code was unreasonable, and that it would be just and equitable to apply an uplift of 25%.[42]The total compensation, before grossing up, under the Equality Act complaints is therefore as follows: Loss of earnings 42,826.28 Injury to feelings 33,000.00 Aggravated damages 8,000.00 Sub total 83,826.28 25% uplift 20,956.57 Total 104,782.85[43]Interest on compensation for discrimination is governed by the Employment Tribunals (Interest on awards in discrimination cases) Regulations 1996. In summary:43.1 The Tribunal may include interest on the sums awarded, and shall consider whether to do so, without the need of an application (regulation 2).43.2 The current rate of interest is 8%.43.3 Interest on injury to feelings runs from the date of the act of discrimination to the day of calculation, the latter meaning the day on which the amount of interest is calculated by the Tribunal (regulations 6(1)(a) and 4(1)).43.4 In the case of all other awards of compensation, interest runs from the mid-point date to the day of calculation (regulation 6(1)(b)). The mid point date is the day half way through the period from the date of the at of discrimination to day of calculation (regulation 4(2)).43.5 Regulation 6(3) provides: Where the Tribunal considers that, in the circumstances, whether relating to the case as a whole or to a particular sum in an award, serious injustice would be caused if interest were to be awarded in respect of the period or periods in paragraphs (1) or (2), it may –(a) Calculate interest, or as the case may be, interest on the particular sum, for such different period, or(b) Calculate interest for such different periods in respect of various sums in the award, as it considers appropriate in the circumstances, having regard to the provisions of these Regulations.[44]In the present case, the acts of discrimination occurred over a period between 15 August and 23 October 2018, with the majority of them occurring from mid-September onwards. I have taken the date of the act as 25 September 2018, in an effort to reflect the occurrence of the various ats, and because it was then that the Third Respondent ceased communicating with the Claimant.[45]I have taken the calculation day as the second day of the present hearing, i.e. 17 March 2021. The mid-point date between 25 September 2018 and 17 March 2021 is 20 December 2019. The period from 25 September 2018 to 17 March 2021 is 2 years and 173 days; and from 20 December 2019 to 17 March 2021, 1 year and 87 days.[46]Calculating interest in full would give the following: Loss of earnings, 42,826.28 x 125% for ACAS uplift = 53,532.85 x 8% x 1 year 87 days = 9.9% = 5,299.75. Injury to feelings, 33,000.00 x 125% for ACAS uplift = 41,250 x 8% x 2 years 173 days = 19.7% = 8,126.50. Aggravated damages, 8,000.00 x 125% for ACAS uplift = 10,000.00 x 8% x 1 year 87 days = 9.9% = 990.[47]The total amount for interest would therefore be £14,416.25.[48]In accordance with regulation 6(3), I have considered whether such an award would give rise to serious injustice. I do not consider that it would. The delays in the case have largely (although not exclusively) been caused by the Respondents. The rate of 8% greatly exceeds any currently available rate of interest on cash deposits; but in the present case, the midpoint date falls after the end of the period for which financial losses have been claimed and awarded.[49]No detailed submissions were made on grossing up. I find that this should be applied to the loss of earnings in excess of £30,000, and so to the sum of £12,826.28, and to the element of uplift on that (25% of £12,826.28 = £3,206.57). I also find that it should be applied to the award of interest, being £14,416.25. The total to be grossed up is therefore: £12,826.28 + £3,206.57 + £14,416.50 = £30,449.10. Of this, £12,500 is free of tax, leaving £17,949.10 taxable at 20%. That gives a figure of £3,589.82.[50]The total, grossed up award under the Equality Act is therefore as follows: Sub total under paragraph 42 above: 104,782.25 Interest 14,416.25 Add for grossing up 3,589.82 122,788.32[51]I have included in my judgment provision for the parties to apply in respect of any matters of calculation, and in relation to grossing up in particular. I have done so because I have not had the benefit of the parties’ assistance on the calculations or on grossing up. I emphasise that this limited provision is restricted to the stated matters. Breach of contract[52]The schedule, supported by the Claimant’s evidence, puts the quantum of compensation for breach of contract (essentially, the Claimant’s relocation expenses) at £11,865.02. The Third Respondent has queried the amount for the deposit paid in respect of the Claimant’s alternative accommodation, to the effect that this should be refundable. Although the Third Respondent did not attend the hearing to pursues this (or any other) point, and it was not covered on the Claimant’s evidence, it seems to me that it must be the case that either the deposit was refunded, or that it was not refunded for a reason unconnected with the acts of discrimination. The amount of 4 months’ rent from 4 October 2018 to 3 February 2019, plus the deposit, is put t £9,408.67. If the deposit was equal to one month’s rent, as is customary the figure would be £1,881.73 (£9,408.67 divided by 5). I therefore deduct that from the compensation for breach of contract, giving £9,983.29.[53]For the reasons given above in relation to the award under the Equality Act, I consider that there should be an uplift of 25% for unreasonable failure to comply with the ACAS Code. That amounts to £2,495.82. The total award of compensation for breach of contract is therefore £9,983.29 + £2,495.82 = £12,479.11 Costs application[54]Rule 76 of the Rules of Procedure includes the following provision about costs:(1) A Tribunal may make a costs 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….the way that the proceedings (or part) have been conducted; (b) Any claim or response had no reasonable prospect of success;(2) A Tribunal may also make such an order where a party has been in breach of any order or where a hearing has been postponed or adjourned on the application of any party.[55]The decision in principle as to whether to make a costs order therefore involves the Tribunal deciding whether the threshold requirement of unreasonable conduct, etc, has been made out; and then (if it has) deciding whether, as a matter of discretion, such an order should be made.[56]Rule 78 provides that the Tribunal may order the paying party to pay a specified amount, not exceeding £20,000; or to pay the whole or a specified part of the receiving party’s costs, with the amount to be determined by way of a detailed assessment. Rule 84 provides that in deciding whether to make a costs order, and if so in what amount, the Tribunal may have regard to the paying party’s ability to pay.[57]In Vaughan v London Borough of Lewisham [2013] IRLR 713 the Employment Appeal Tribunal (Underhill J) stated that there was no absolute obligation to have regard to means at all, and that the Tribunal was not required to make a firm finding as to the maximum that it believed that the paying party could pay, either forthwith or within some specified timescale. Underhill J added that: “If there was a realistic prospect that the Appellant might at some point in the future be able to afford to pay a substantial amount it was legitimate to make a costs order in that amount so that the Respondents would be able to make some recovery when and if that occurred.”[58]I refer once again to the procedural history as set out in the reasons given for my previous judgments and earlier in these reasons. That history was relied upon by Mr Milsom in relation to the costs application.[59]I find that the Respondents have, through the Third Respondent, acted unreasonably in the way that the proceedings have been conducted. It would be disproportionate to set out every point at which there has been unreasonable conduct. I give the following examples, which illustrate that there has been unreasonable conduct on the Respondents’ part throughout the proceedings:59.1 At the outset, the Respondents took a point as to the Tribunal’s territorial jurisdiction, but did not then engage with the process in order to advance that argument.59.2 The Respondents sought a postponement of the full merits hearing on grounds which included that they had not understood what was meant by the order for exchange of witness statements, when that order clearly explained what was required.59.3 They sought a reconsideration of the liability judgment on grounds which included the Third Respondent’s medical condition, and thereafter maintained the improbable proposition that, under Canadian law, an order of the Court was required for an individual to have access to his own medical records, while failing to produce any evidence or statutory reference to support this.59.4 I have already commented above on the Third Respondent’s witness statement produced for this remedies hearing.[60]Additionally, and as described earlier and in previous reasons, the Respondents have persistently breached the Tribunal’s orders, either by failing to comply at all, or by purporting to comply after the time for doing so had passed.[61]I therefore find that the discretion to make a costs order arises in the present case, and I have gone on to consider the exercise of that discretion.[62]I find nothing in the general conduct of the litigation to suggest that I should not make a costs order: in fact, the reverse.[63]The Third Respondent has maintained that he, and by extension the other Respondents, does not have the means to pay a costs order. I referred in my reasons for the judgment on reconsideration to his (after the event) statement that he was seeking to borrow money in order to fund the litigation.[64]On this point, I agree with Mr Milsom’s argument to the effect that the Tribunal should not be swayed by statements, unsupported by any evidence, that the Respondents are not able to meet any costs order that may be made. The Respondents clearly had means in the past. There has been no evidence as to what may have happened to their business, or as to the Third Respondent’s financial position.[65]I also have regard to the guidance given in Vaughan, set out above. Although the Third Respondent has made various assertions about his current financial situation, there is no supporting evidence for any of this. There is no evidence as to what ability to pay the Respondents may have in the future. I have concluded that I should not regard the question of ability to pay as an impediment to the making of a costs order. In fact, I have no worthwhile evidence about the Respondents’ ability to pay.[66]I have therefore concluded that I should make the costs order sought by the Claimant, which is that the Respondents should pay the whole of her costs of the claim, to be the subject of a detailed assessment.[67]The total amount of costs incurred is put at around £99,000, including VAT. Mr Milsom asked that, in the event that I made such an order, I should also order what would amount to an interim payment in respect of costs. I can see the practical merit of that suggestion: it would enable the Claimant to learn the outcome of seeking to enforce that element before incurring the additional costs of a detailed assessment.[68]For the basis of this application, Mr Milsom formulated his arguments in two ways, namely:68.1 Rule 78 makes provision for the amount of a costs order. Paragraphs (a) to (e) list the particular orders that a Tribunal may make. These are not mutually exclusive, as a Tribunal could (for example) make an order under paragraph (c) for reimbursement of a fee (when fees were applicable) and under paragraph (d) for witness expenses. He contended that the same was true for paragraphs (a) (payment of a specified amount not exceeding £20,000) and (b) (an order to pay the whole or a specified part of the costs, to be determined by detailed assessment). Here, the specified part of the costs would be that part exceeding £20,000. I accepted this submission, and found that the rule should be read in that way.68.2 In a different context, in Sarnoff v YZ [2021] EWCA Civ 26, the Court of Appeal held that the Tribunal’s case management powers were not limited to particular powers specified in the Rules. I did not read this authority as extending as far as enabling the Tribunal to effectively create a form of costs order that goes beyond the express provisions in the Rules.[69]I have therefore made an order for payment of £20,000 under Rule 78(1)(a) and for payment of the balance of the Claimant’s costs in excess of £20,000, with the amount to be determined by detailed assessment.[70]I find that the award in respect of breach of contract should be against the First and Second Respondents, as they were the contracting parties.[71]The award under the Equality Act and the costs order should be joint and several, against all three Respondents. The Third Respondent was, as an individual, responsible for all of the acts of discrimination. He was also responsible for the conduct of the litigation. He should therefore be personally liable for these elements. He has acted throughout on behalf of the First and Second Respondents, who are, I find, vicariously liable for his actions.