[1]The claims of sex discrimination, maternity discrimination and harassment succeed to the extent set out in the Reasons.[2]The remaining complaints are dismissed.
REASONS
[1]By a Claim Form submitted to the Employment Tribunal on 12 September 2017 the Claimant brought complaints of sex discrimination, maternity discrimination, harassment, victimisation and public interest disclosure. The public interest disclosure claim was withdrawn shortly before the hearing. Issues[2]The issues were set out in an agreed List of Issues. Evidence The Claimant gave evidence.[4]The Claimant called: 4.1 Janine von Pickartz, Senior Compliance Adviser[5]The Respondents called:5.1 Jon Dyos, Head of Markets Compliance5.2 Stephan Niermann, Head of Regional, Compliance UK and Asia at the relevant time5.3 Julia Burch, Compliance Advisor5.4 Kevin Whittern, Senior Compliance Adviser5.5 Anthony Lowther, UK Regional Head of Compliance5.6 Dennis Rogalla, Head of Compliance for Western and Eastern Europe5.7 Stephen Walsh, UK Head of Central Compliance5.8 Dr Jessica James, Managing Director, Senior Quantitative Researcher[6]We were provided with an agreed bundle of documents. References to page numbers in this judgement are to the page number in the agreed bundle of documents.
Findings of fact
[7]The Respondent is a company incorporated under the laws of Germany engaged in the business of investment banking, amongst other things. The Respondent has a branch in London[8]The Claimant applied to join the Markets Compliance Team of the Respondent in 2012. The Claimant attended a competency based assessment on 19 June 2012.[9]On 11 July 2012 Silvana Allday, a HR Business Partner, provided interview feed-back to Nawshad Jooma, Head of Markets Advisory Compliance, about the Claimant (p219):[10]This shows that the Claimant had ambitions to develop her management skills.[11]On 12 July 2012 Anthony Lowther, UK Regional Head of Compliance wrote in an email that he and Mr Jooma wished to appoint the Claimant (p221).[12]The Claimant was offered employment by the Respondent by letter dated 26 July 2012 (p222).[13]On 1 November 2012 the Claimant commenced employment with the Respondent as a Senior Compliance Advisor with the corporate title of Vice President.[14]The Claimant was designated to work in the Markets Compliance Department, providing regulatory advice to the Equity Markets and Commodities business. The Head of Markets Compliance was Mr Jooma.[15](p221)included the provisions that the Claimant had management responsibility for one or more Compliance Officer and would deputise for the Head of Market Compliance when appropriate.[16]Mr Niermann accurately describes the structure the UK Markets Compliance team in his witness statement at paragraph 8: 17. permanent employment was confirmed at the conclusion of her probationary period.[18]Janine von Pickartz joined the Respondent in November 2013 as VP in Corporate Finance. She describes the situation in the department when she joined at paragraph 6 of her witness statement: Before joining the bank, I had been told that the Head of Markets, Nawshad Jooma (NJ), was very difficult to work with and I was advised not to join, however after making enquiries, I was reassured that there would not be any issues and so I accepted their offer of employment. Upon joining the Respondent, I quickly realised that the markets team had serious problems. There were several staff disputes involving the Head of Markets, Nash Jooma who I experienced to be an aggressive bully and quite Machiavellian in his approach. The atmosphere was tense and toxic and turnover in the team was high. The loss of my junior member was a bullying and aggressive conduct[19]A review of Private Banking Sales ( PBS ) started in March 2014. During the review the Claimant alleged that she made protected disclosure which resulted in various detriments. The public interest disclosure claim was withdrawn just before the hearing. The detriments she complained of are still relied upon as detriments in her discrimination claims.[20]As of 9 December 2013 Ivan Mukadam was recorded as Functional Deputy (p229).[21]The Claimant received an appraisal to 31 December 2013 which was largely positive (p230). Mr Mukadam left the Respondent on 1 April 2014.[23]In May 2014, the Claimant was designated as Deputy to the Head of Markets by Mr Jooma (pp244, 246). The Respondent procedure provided for the termination of deputising arrangements once the principal left, although not of the relevant witnesses were aware of tis at the time.[24]On 11 August 2014 the Claimant attended the Compliance Management Committee meeting as Mr Jooma . The Claimant explained that there was a delay in the PSB report being written up and she was yet to commence drafting the report (p296).[25]In September 2014 Kevin Whittern was appointed to the department as Fixed Income and Currencies (FIC) Vice President. Mr Whittern states at paragraph 9 and 10 of his witness statement that: One of my concerns before I started at Commerzbank was that I had heard some things about Nash being a micromanager1. I found out about this because, before I accepted the role, I requested to meet a couple of members of the team, and so I met with Fergus Clinch (who at that and Jagruti. During our conversation it was apparent that there was an underlying issue with Nash. I then spoke to the recruitment agent management style. To address my concerns before accepting the role, I contacted Nash again and spoke to him about this as I wanted to make sure that we were not going to clash as I did not want to be in a position of being micromanaged (having experienced it in previous jobs). Nash promised me that he would not try to control my work. True to his word, Nash never tried to micromanage me and we got on very well during his remaining time at Commerzbank.[26]In October 2014 Mr Jooma completed talent ratings for the Claimant and Miss Von Pickartz. In respect of the Claimant he recorded (p314A) He recorded for Miss Von Pickartz:[28]The document showed that the Claimant and Miss Von Pickartz were seen as possible candidate for promotion to Head of Markets Compliance.[29]On 3 December 2014 Stephan Niermann was appointed Head of Regional Compliance UK, based in London.[30]On 18 February 2015, the PBS Review was published (pp365-9, 334-357).[31]On 9 March 2015 the Claimant objected to her 2014 appraisal alleging that it was not conducted in a transparent and open way by Mr Jooma and that she fundamentally disagreed with the scores (p 377, 382). There was a particular issues about Mr Jooma suggesting that the Claimant had spent too long on the PBS review and had been too detailed in her analysis.[32]In April 2015 Julia Burch joined the Respondent as Equity Markets and Commodities (EMC) Assistant VP. In her witness statement she states that there was a tense atmosphere between the Claimant and Mr Jooma. On 30 March 2015 2014 appraisal (p407).[34]On 2 April 2015 the Claimant rejected her appraisal (p407).[35]In or around April 2015, Mr Jooma informed senior management that he was leaving Commerzbank.[36]On 11 May 2015 the Claimant gave his comments on the Claimant s complaints about the appraisal alleging that the Claimant had subjected him to an angry and insulting tirade (p409 415).[37]On 20 May 2015 Mr Jooma stated when discussing the way forward with human resources that while he stood by his appraisal he had no appetite to go through the process of seeking to agree it with the Claimant. He referred to the situation as uncomfortable and being demotivating and possibly career limiting for the Claimant (p416).[38]In June 2015 the Head of Markets Compliance role was advertised (p422). The London recruitment policy at the relevant time provided the Respondent wished to encourage internal progression:[39]On 22 June 2015 the Claimant attended the LCMM meeting acting in her role as deputy (p421).[40]On 23 June 2015 Kavita Bhalla, a HR Business Partner, chased the Claimant for her application for the Head of Markets Compliance role (p422).[41]On 24 June 2015 the Claimant applied for the role of Head of Markets Compliance by submitting her CV (p422). There was no formal application form. The other two VPs also applied.[42]I Mr Niermann had one-on-one meetings with each team member (including the three VPs). At paragraph 17a of his witness statement he states: AVPs) around how the Team was managed. In particular Jagruti and Janine made tendentious2 complaints to me that they had been micromanaged by Nash and that they had not received a fair reflection of their performance in their appraisals by Nash. The tension had been building within the Team in London over the last few years, largely due to[43]On 3 July 2015 Mr Niermann interviewed an external candidates, Florent Palaysi (p 432) for the role of Head of Markets Compliance, but decided he was not suitable.[44]On 7 July 2015 the Claimant was interviewed by Mr Niermann for the Head of Markets Compliance role (p 434). The other VPs were interviewed by Mr Niermann at about this time. No record was kept of the interviews with the Claimant or the other VPs.[45]At paragraph 19 Mr Niermann states: g seen the state of the Team by this point, which was after all internal applications had been submitted and gone through their first round of interviews, I decided that the most important of the two criteria I was looking for when recruiting for the Head of UK Markets Compliance role (as set out at paragraph 14 above) had to be the Leadership and Management skills and, specifically, that the candidate was sufficiently removed from the current politics and tensions within the Team to enable them to effectively run the department and get it working together again. It was from this point that I seriously doubted whether any of the VPs could carry out the Head of UK Markets Compliance role in my opinion, the environment in the Team was toxic and appointing someone from within would have just made it even worse 3 Mr Jooma left the bank on 10 July 2015.[47]After Mr Jooma left the Claimant reported directly to Stephan Niermann, pending the appointment of a new Head of Markets.[48]F Mr Niermann states that he appointed Mr Whittern as point person . From paragraph 23 of his statement he states: 23. I chose Kevin for this point person role for multiple reasons:a. Kevin was an expert in FIC and at the time there was a lot of movement in the FIC business (i.e. business lines were being reassembled and were moving to Frankfurt and Poland). I needed someone to be able to report to me on not only the day-to-day running of ordinary business operations, but who was also engaged with the changes happening within the business more widely;b. Kevin had the best managerial experience of the three VPs, which he had gained in his previous jobs and which I knew about from my conversations with him and from feedback I received about Kevin from Nash;c. Kevin was the most available to take on the position in terms of workload. Jagruti and Janine were very busy in EMC and CF respectively and FIC had the most experienced AVP, capable of supporting the work in FIC at the time himself. Therefore, I assessed Kevin as having the most time to fulfil the point person role; andd. I saw Kevin as the most removed from the internal politics within the Team. I knew Jagruti and Janine were both very divisive personalities and Kevin seemed the most innocuous4.[49]When Mr Niermann was asked in cross examination what the Claimant and Miss Von Pickartz had done that was divisive by Mr Niermann stated that that: after the departure of Mr Joooma they were coming into my office to put forward their positions, they were both intrusive, I had to say that this was going to be a normal recruitment process. He later they were trying to forward their own interests giving the impression that things needed to be done immediately . In assessing Mr Niermann we have taken into account that his fist language is not English and made sure that he had a full opportunity to explain his meaning when he gave evidence.[50]We consider that Dr James accurately described the situation in her grievance outcome (p1154): wever clear that Kevin was at this stage being treated as a senior fficers in the team. The records of the attendance at the Compliance Management Meeting show that Kevin attended 15 out of the next 16 meetings, with Jagruti attending only 1[51]In 13 July 2015 the Claimant sent an email to human resources about Ms Burch being removed as her direct report (p438). She was informed that the system had been updated.[52]In August 2015 Mr Niermann told the team that Mr Whittern was his point person .[53]On 12 August 2015 Mr Niermann sent an email to human resources stating (p445): After my MTA I want to catch up with you on the status of the hiring process for the Head of Markets Compliance. Could you please let me know whether further candidates are in the pipeline.[54]At a meeting, organised at Miss Von Pickartz behest, on 12 August 2015 Mr Niermann was asked to explain the structure in the team and whether Mr Whittern had been elevated. He said that pending the appointment of a new Head of Markets, Mr Whittern would be the first point of contact in the Markets department. At that meeting, and thereafter, he persistently played down the significant of Mr acting role under which he was treated as senior member of the team. 4 Emphasis Added[55]In a chart dated 21 September 2015 Mr Whittern was recorded at acting head of the Markets Compliance Department. The document was created for a project called Team Excellence, under which the team was reviewed to see if its working could be improved.[56]On 22 September 2015 the Claimant spoke to Mr Niermann about Mr Whitter told Mr Niermann that she was Deputy to the Head of Markets and queried whether there was any point in her continuing with her application for the Head of Markets role. Mr Niermann said he was not aware that there was a designated Deputy to the Head of Markets and said that being first point of contact was an informal designation; and was not deputy head or acting head. In reality Mr Whittern was treated as the acting head of the department and so the role was more senior than the deputy role that had been given to the Claimant by Mr Jooma.[57]The Claimant attended at second interview for Head of Markets Compliance with Mr Rock on 2 October 2015. Miss von Pickartz and Mr Whittern also had interviews with Mr Rock.[58]In Mid October 2015 Mr Dyos had an informal meeting with Mr Niermann the about Head of Markets role.[59]The external candidates were interviewed by Mr Niermann, Mr Walsh, Andrew Readinger, Head of Institutional Sales for FIC, Jorge Masalles, Head of Financial Institutions Marketing and Private Banking Sales and Kavita Bhalla of human resources and Dereck Rock, Branch Manager London. They gave feedback to Mr Nierman who made the appointment decision. The much more extensive interview process for the external candidates illustrates that the internal applicant were not treated as serious candidates for the role.[60]Mr Walsh interviewed two external candidates on 6 November 2015 and reported that he preferred Mr Dyos. He proffered the view that he felt that the Claimant was the best of the internal candidates and stated that he thought that Miss von Pickartz would be divisive . Mr Walsh stated in his evidence that he considered that the Claimant had the skills to undertake the role and he would have liked to see her appointed to it. Mr Walsh could give no rational explanation of why he referred to Miss von Pickartz as divisive, suggesting, unconvincingly, that her advice could divide opinion.[61]On 13 November 2015 the Claimant announced that she was pregnant (p563).[62]At about this time there was a Team Excellence meeting at which there was an exercise whereby the team were asked to pick, from pictures provided by the trainer, those that represented traits such as good and bad management, where the team was and where it should move to. The Claimant picked a picture of a snake. Mr Whittern thought that it was a veiled reference to him. The Claimant in her evidence said that it was designed to depict poor management and she had Mr Jooma in mind. We accept that at this time relations in the team would deteriorating quickly in the light of the fact that Mr Whittern was being treated as a senior member of the team as a result of which he genuinely felt that the picture of the snake was a reference to him.[63]In an internal form dated 16 November 2015 the Claimant was recorded as functional deputy:[64]On 27 November 2015 Mr Niermann asking that Mr Whittern be recorded as deputy (p584A). Thus was reflected in the next chart on 27 November 2015:[65]On 1 December 2015 the Claimant submitted a Maternity Leave Notification Form (p579).[66]On 2 December 2015 Mr Whittern had a one to one with Mr Niermann and discussed his status in the team and the tension being recreated by him being an informa t was agreed that he would be fomally appointed as acting head.[67]On 2 December 2015 the Claimant complained to Mr Niermann about him treating Mr Whittern as de facto Head of Markets. Mr Niermann sent an email that day suggesting that if it had not already be done Mr Whittern should not be shown as acting head.[68]On 10 December 2015 Mr Niermann and Mr Whittern exchanged emails (p594). Mr Whittern stated that he was to acting head until a formal appointment was made.[69]To which Mr Niermann replied . Jagruti is deputy to[70]On 15 December 2015 Mr Dyos was offered role of Head of Markets Compliance. He accepted on 18 December 2015.[71]On 26 December 2015 the Claimant had a series of text exchanges with Ms Burch about Mr Whittern The demonstrates the deteriorating relationship in the team after Mr Whittern was appointed point person/acting head.[72]The Claim 4 March 2016. She attended hospital and then returned to work for a short time to try to finish off some work before leaving on maternity leave.[73]On 7 March 2016, the Claimants baby was born and her maternity leave began.[74]In early March 2016 Mr Dyos met with Ms Burch and discussed how the Claimant maternity absence wold be dealt with. Mr Dyos already knew Ms Burch and was on friendly terms with her. Ms Burch complained to Mr Dyos about the Claimant returning to work after attending hospital once her waters had broken. Mr Dyos said in his evidence he thought that this was an example of the Claimant being controlling .[75]At paragraph 50.2 of the response the Respondent plead their case as to the position of Ms Burch a return from maternity leave:[76]Once the Claimant left on maternity leave her role was, in reality, taken over by Ms Burch.[77]On 14 March 2016 the Claimant asked to join a whiteboard meeting by remote access. The Claimant thought this would be a good opportunity to speak to the team and update them on the birth of her baby and would be an opportunity to clarify any issues with the handover. Before the meeting the Claimant found that she could not access the Res[78]We accept what Ms von Pickartz states at paragraph 21 of her witness statement : I was attending a whiteboard meeting with Kevin and Julia when I received a call from the Claimant. The Claimant phoned to let me know that she had delivered her baby. I was delighted to hear the news. I told the Claimant meeting. The Claimant wanted to join the meeting and was excited to share the good news. I told her to stand by whilst I dialed her in to the meeting. I went back to the meeting to let the others know the happy news and to tell them that the Claimant would be joining the meeting. I was taken aback by the immediate disinterested reaction of both Kevin and Julia. They insisted that there was no need for the Claimant to be at the meeting, that the meeting was over, and there was no need to dial her in. It was an awkward uncomfortable moment and I did not know how to relay this to the Claimant. I called the Claimant back and let her know that the meeting was over and therefore no point in her joining. She knew of course that the real purpose of her joining the meeting was to share her news with the team and that her colleagues had essentially snubbed her. It was so embarrassing that I later sent a text to the Claimant to apologise. Mr Niermann states at paragraph 52:[80]Shortly thereafter HR for advice about the Claimant (p711).[81]The Claimant alleges that on 15 March 2016 her husband informed her that Ms von Pickartz had been in touch with him and told him that Mr Niermann had access disconnected In fact internet access was already cut of before this discussion, maternity leave click the pop-up to treat the first two weeks of compulsory maternity leave as MTA. During her oral evidence the Claimant accept that she lost access for approximately two weeks which would accord with this explanation.[82]On 16 March 2016 Ms Burch sent an email to Danny Baldwin about the Claimant seeking to call in for the whiteboard meeting (p713) stating .[83]On 23 March 2016 the Claimant sent an email to Mr Dyos about the possible appointment of Sheralee Bailey as maternity cover, stating that she would be a good choice (p714).[84]On 4 April 2016 Mr Dyos commenced work as Head of Markets Compliance. Mr Dyos continued with the arrangement whereby Mr Whittern was treated as point person. We agree with the finding that Dr James made in the grievance outcome that Mr Whittern continued to be treated as the senior member of the team (p1154). 85. 11 April 2016 Ms Bailley started work. Mr Dyos accepted in cross examination that Ms Bailley providing supervision and assistance. Ms Bailley did not have a traditional maternity cover role in that she did not primarily cover the but provided support to[86]On 12 April 2016 Mr Niermann sent an email about a discussion with Mr Dyos about a flat structure for the Market compliance team (p716). Mr Dyos stated that he believed that this meant that the Claimant would effectively cease managing Ms Burch. from maternity leave.[87]On 29 April 2016 the Claimant met with Jon Dyos for the first time since having her baby. Mr Dyos told the Claimant that the reporting structure would remain the same and that the Claimant would continue to line manage Ms Burch. In reality that was not the case.[88]On the 20 May 2016 the Claimant sent an email to Mr Dyos about the next Quarterly Review Meeting. She was expecting to attend the meeting (p747). Mr Dyos strongly discouraged the Claimant from attending the meeting. Mr Dyos insisted that Ms Burch was attending with him and the Claimant was not required. This underlines the fact that Ms Burch was essentially carrying out Ms Bailley. We accept that Mr Dyos actively discouraged the Claimant from attending rather than merely wishing to avoid putting any pressure on her to attend as he suggests at paragraph 55 of the statement in which he states[89]On 2 June 2016 the Claimant met with Mr Niermann and discussed her return to work. The Claimant requested feedback on her application for the Head of Markets role. Mr Niermann stated he wanted someone who Mr Niermann did not mention that the role required more management experience than she had, and that Mr Dyos was selected for this reason.[90]On 19 August 2016 Ms Bailey left From then until the Claimant returned from maternity leave Ms Burch undertook the entirety of the Claimant s duties.[91]The Claimant met with Mr Dyos and the team on 19 August 2016. The Claimant expected there would be a formal handover and update of ongoing work but was told by Mr Dyos that all matters had been overseen by Ms Burch and that no handover was required. The reality is that Ms Burch had effectively performed role during her maternity absence, with some support from Ms Bailley, and was not willing to return to being in a supporting role.[92]The Claimant returned to work on 7 September 2016.[93]In September 2016 entries were made on Talent Development Discussion re succession planning chart after informal discussion between Mr Dyos, Mr Niermann, Danny Keay and Stephen Walsh. For the Claimant it was recorded (p833): The following was recorded for Ms von Pickartz: This compares with Mr Whittern:[96]It is notable that in a period of a year the talent development discussion forms had changed for the Claimant who was now shown as 2-3 years away from being ready for promotion whereas the year before she had been shown as 2 years away. Ms von Pickartz had changed from being 1 year away from being ready for promotion to 2 to 3 years. This contrasts with Mr Whittern who was shown as being 1 to 2 years away from being ready for promotion. Mr Dyos accepted in cross examination that in considering readiness for promotion potential was perhaps more important than performance. Although Mr Whittern was shown as having less potential than the Claimant and Ms von Pickartz, he was shown as being closer to being ready for promotion. The document demonstrates the real advantages Mr Whittern was gaining from having been made point person/acting head.[97]Mr Dyos states at paragraph 68 of his witness statement: good communicator) made him more ready than either Jagruti or Janine.[98]Implicit in this comment is the suggestion that the Claimant and Ms von Pickartz are not easy to get along with and are poor communicators. This is not supported by the evidence. To the extent that there was tension in the team this was caused by the fact that Mr Whittern had been made point person/acting head and given seniority over his female colleagues without consultation or a proper process being followed.[99]On 4 October 2016 The Claimant asked Mr Dyos to revise Ms Burch reporting line back her. Mr Dyos agreed but did not do so until reminded (p844).[100]On 12 October 2016 the Claimant started flexible working on a trial period (p845). Mr Dyos supported her application to do so by email of 5 October 2016.[101]On 11 November 2016 the Claimant sent an email Mr Dyos about not being invited to a NPP meeting on 10 November 2016 (p849). Mr Dyos responded suggesting it was an oversight. Mr Whittern continued to be the most frequent deputy for Mr Dyos at management meetings.[102]On 15 November 2016 the Claimant met with Mr Dyos. The Claimant argued that her previous position and status had been eroded since her pregnancy and maternity leave. Mr Dyos said that he had not yet contacted HR to confirm that the reporting line for Ms Burch had changed back to the Claimant on her return from maternity leave. The Claimant spoke about her previous role as deputy head and Mr Dyos said he had heard that .[103]On 16 November 2016 Mr Dyos asked HR to change Ms Burch back to the Claimant (p1097).[104]The Claimant attended a further meeting with Mr Dyos on 21 November 2016. Mr Dyos said that he had expected some difficulties on her return from maternity leave because Julia Burch had maternity absence[105]In the Claimant appraisal up to the end of 2016 Mr Dyos gave the Claimant a score of 111% but recorded management training as a development requirement (p859):[106]On 1 February 2017 a new organisation structure was produced that included a new role of Head of Eastern and Western Europe Compliance (p883).[107]In a meeting on the 2 February 2017, Mr Dyos advised the Claimant that Ms Bailley worked very differently from her and that the maternity cover just let 108. by email dated 2 February 2017 (p909).[109]On 7 February 2017 the Claimant told Mr Dyos that he was still shown as the Functional and Disciplinary manager for Ms Burch in the formal charts. Mr Dyos claimed not to know that she the Claimant was formally designated as deputy. Mr Dyos said that he was told by Mr Niermann on his appointment that Mr Whittern was the deputy head and he had no reason to challenge this.[110]On 20 February 2017, the Claimant spoke with Mr Dyos about feeling marginalised since her return from maternity leave. Mr Dyos apologised but did not propose any specific remedial action. He suggested that any disparity in work allocation was simply accidental.[111]On 10 March 2017 the Claimant discovered that Mr Dyos had added plan for Mr Whittern. On 13 March 2017 the Claimant complained to Mr Dyos (p981). It was only after her complaint that the Claimant was allowed to include cross-coverage as part of her developmental plan (p983).[112]On 30 March 2017 the Claimant lodged her first grievance (p1017-22).[113]On 26 April 2017 the Claimant attended a grievance hearing (p1082-86)[114]In May 2017 Dennis Rogalla expresses interest in the new post of Head of Eastern and Western Europe Compliance. Mr Rogalla was assistant to Armin Barthel, Head of Group Compliance, and had been involved in the decision that such a role should be created and in defining its scope.[115]On 3 May 2017 the Claimant mentioned to the team that she was feeling unwell. Mr Whittern said word to the effect: What have you been up to? Maybe .[116]On 31 May 2017 the Claimant sent an email to Mr Dyos about the alleged decrease in her role (p1138).[117]On 2 June 2017 the Claimant was informed that she was now recorded on the p1281).[118]Mr Dyos sent an email that day questioning when he had agreed that the Claimant was his deputy (p1160).[119]On 5 June 2017 the Claimant attend a meeting and was given the grievance outcome (p1149-59). Although Dr James considered that there are a number of respects in which management had not dealt with things well she did not find that there had been any discrimination. 120. challenging the grievance outcome suggesting possible resolutions including the possibility of being slotted into the new regional post (p1171).[121]On 16 June 20 17 the Respondent replied. The Claimant was told that she was entitled to apply for Head of Eastern and Western Compliance (p1173).[122]At her request the Claimant was shown as functional manager for Ms Burch from 21 June 2017she (p1180).[123]On 23 June 2017 the Claimant expresses as interest in Head of Eastern and Western Europe Compliance post to Anthony Lowther who sought to persuade her against applying (p1314).[124]On 24 July 2017 Mr Barthel told human resources that he wished to second Mr Rogalla to the Head of Eastern and Western Europe Compliance (p1393). He was told that it would have to be advertised.[125]On 24 July the Claimant complained that she was not being included in correspondence.[126]Towards end of July 2017 Head of Eastern and Western Europe Compliance was advertised for 7 days, the minimum period under the London Recruitment policy provided. The usual period is 21 days.[127]On 28 July 2016 new role was advertised for 7 days (p1390- 1260). The Claimant did not see the advertisement. Her email notification that would have alerted her to the role was off but the Claimant had not noticed.[128]On 31 July 2017 Mr Rogalla was told by a friend that the Head of Eastern and Western Europe Compliance had been advertised (p1250).[129]On 1 August 2017 Mr Rogalla applied for Head of Eastern and Western Europe Compliance.[130]Colleen Lally enquired about the role of Head of Eastern and Western Europe Compliance. She was dissuaded by Mr Lowther form applying. She was also led to believe the role had already been filled prior to interviews and, as a result, withdrew her application.[131]On 28 August 2017 Mr Whittern was shown as Mr Dyos Mr Dyos (p1279).[132]On 31 August 2017, Ms Burch refused to sign her appraisal complaining about the way in which she was being managed by the Claimant (p1300).[133]On 20 September 2017 Mr Rogalla was appointed to Head of Eastern and Western Europe Compliance post (p1314):[134]On 24 October 2017 the Claimant lodged her second grievance about the Head of Eastern and Western Europe Compliance role (p1331-2).[135]On 6 November 2017 a grievance hearing was held with the Claimant (p1341- 1343).[136]On 17 November 2017 a grievance meeting was held with Anthony Lowther and Alison Jenkins (p1371-2).[137]On 1 December 20 17 Lucy Parkinson confirmed that Armin Barthel had wanted to second Mr Rogalla into role of Head of Eastern and Western Europe Compliance from in October 2017 (p1390).[138]On 15 December 2017 the Claimant was sent the second grievance outcome (p1394-7) rejecting the grievance.
The Law
[139]Sex is a protected characteristic for the purposes of the Equality Act 2010[140]The Employment Appeal Tribunal in the Law Society v Bahl [2003] IRLR 640, made this simple point, at paragraph 91: remember that they are concerned with the rooting out certain forms of discriminatory treatment. If they forget that fundamental fact, then they a[141]The provisions are designed to combat discrimination. It is not possible to infer unlawful discrimination merely from the fact that an employer has acted unreasonably: see Glasgow City Council v Zafar [1998] ICR 120. Tribunals should not reach findings of discrimination as a form of punishment because that their commitment to equality is poor; see Seldon v Clarkson, Wright & Jakes [2009] IRLR 267.[142]Direct discrimination is defined by Section 13 EQA: 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[143]Section 23 EQA provides that a comparison for the purposes of Section 13 must be such that there are no material differences between the circumstances in each case. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 Lord Scott noted that this means, in most cases, the Tribunal should consider how the Claimant would have been treated if she had not had the protected characteristic. This is often referred to as relying upon a hypothetical comparator.[144]Since exact comparators within the meaning of section 23 EQA are rare, it is may be appropriate for a Tribunal to draw inferences from the actual treatment of a near-comparator to decide how an employer would have treated a hypothetical comparator: see CP Regents Park Two Ltd v Ilyas [2015] All ER (D) 196 (Jul).[145]Harassment is precluded by Section 26 EqA: (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. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account (a) the perception of B; (b) the other circumstances of the case;[146]In Richmond Pharmacology v. Dhaliwal [2009] ICR 74 the Underhill P held when considering harassment claims: s very important that employers, and tribunals, are sensitive to the comments or conduct on other grounds covered by ...the legislation, it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of[147]Section 39 EQA provides that an employer must not victimise or discriminate against an employee by subjecting her to a detriment (section 39(4)(d) and section 39(2)(d).[148]Section 27 EqA provides that: 27(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because (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.[149]The protection against victimisation is an important aspect of ensuring that individuals can assert their right not to be subject to unlawful discrimination.[150]Section 18 EqA provides EqA: 18 Pregnancy and maternity discrimination: work cases(1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity.(2) A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably (a) because of the pregnancy, or(3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave.(4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.(5) For the purposes of subsection (2), if the treatment of a woman is in implementation of a decision taken in the protected period, the treatment is to be regarded as occurring in that period (even if the implementation is not until after the end of that period).(6) The protected period, in relation to a woman's pregnancy, begins when the pregnancy begins, and ends (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy; (b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy.(7) Section 13, so far as relating to sex discrimination, does not apply to treatment of a woman in so far as (a) it is in the protected period in relation to her and is for a reason mentioned in paragraph (a) or (b) of subsection (2), or (b) it is for a reason mentioned in subsection (3) or (4).[151]T same liability inquiry as for direct discrimination i.e. what is the ground on which the act was taken: see Indigo Design Build and Management Ltd v Martinez UKEAT 0020/14.[152]Section 19 of the Equality Act 2010 provides: 19. Indirect discrimination(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant(2) For the purpose of subsection (1), a provision, criterion or practice is d - (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) It puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.[153]The Supreme Court held in Essop and others v Home Office (UK Border Agency): Naeem v Secretary of State for Justice [2017] IRLR 558 that there is no requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others. It is enough that it does. Indirect discrimination, unlike direct discrimination, does not require a causal link between the characteristic and the treatment but does require a causal link between the PCP and the particular disadvantage suffered.[154]The distinction between direct and indirect discrimination was considered by Lady Hale in R (On the application of E) v Governing Body of JFS [2010] IRLR 136 held para 56-57: ''The basic difference between direct and indirect discrimination is plain: see Mummery LJ in R (Elias) v Secretary of State for Defence [2006] EWCA 1293, [2006] 1 WLR 3213, para 119. The rule against direct discrimination aims to achieve formal equality of treatment: there must be no less favourable treatment between otherwise similarly situated people on grounds of colour, race, nationality, or ethnic or national origins. Indirect discrimination looks beyond formal equality towards a more substantive equality of results: criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origins. Direct and indirect discrimination are mutually exclusive. You cannot have both at once. As Mummery LJ explained in Elias at para 117 "the conditions of liability, the available defences to liability and the available defences to remedies differ". The main difference between them is that direct discrimination cannot be justified. Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.''[155]In Essop it was held at para [25]: ''Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment - the PCP is applied indiscriminately to all - but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot.''[156]The case concerned the use of a test, the CSA, that disproportionately affected BAME candidates. Lady Hale held at paragraph 32: particular claimant was not put at a disadvantage by the requirement. There was no causal link between the PCP and the disadvantage suffered by the individual: he failed because he did not prepare, or did not show up at the right time or in the right place to take the test, or did not finish the task. A second answer is that a candidate who fails for reasons such as that is not in the same position as a candidate who diligently prepares for the test, turns up in the right place at the right time, and finishes the tasks he was set. In such a situation there would be a[157]The Courts have long been aware of the difficulties that face Claimants in bringing discrimination claims and of the importance of drawing inferences: King v The Great Britain-China Centre [1992] ICR 516. Statutory provision is now made by Section 136 EQA: 136 Burden of proof (1)This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. But subsection (2) does not apply if A shows that A did not contravene the provision.[158]Guidance on the reversal of the burden of proof was given in Igen v Wong [2005] IRLR 258. It has repeatedly been approved thereafter: see Madarassy v Nomura International Plc [2007] ICR 8675. The guidance may be summarised in two stages:(a) the Claimant must established on the totality of the evidence, on the balance of probabilities, facts from which the Tribunal Respondent had discriminated against her. This means that there must be a ss favourable treatment than a comparator (actual or hypothetical) with circumstances materially the same as favourable treatment was because of the protected characteristic;(b) if this is established, the Respondent must prove that the less favourable treatment was in no sense whatever on the grounds of race or gender.[159]To establish discrimination, the discriminatory reason for the conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of a significant influence: see Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 at 576.[160]There may be circumstances in which it is possible to make clear determinations as to the reason for treatment so that there is no need to rely on section 136 EqA: see Amnesty International v Ahmed [2009] ICR 1450 and Martin v Devonshires Solicitors [2011] ICR 352 as approved in Hewage v Grampian Health Board [2012] ICR 1054. However, if this approach is adopted it is important that the Tribunal does not fall into the error of looking only for the principal reason for the treatment but properly analyses whether discrimination was to any extent an effective cause of the reason for the treatment. The Court of Appeal confirmed in Ayodele v Citlink Ltd v Napier [2017] EWCA Civ 1913 that Efobi v Royal Mail UKEAT/0203/16/DA was wrongly decided on the section 136 issue. 161. Laing v Manchester City Council, EAT at paragraph 75.[162]In considering what inferences can be drawn, tribunals must adopt a holistic approach, by stepping back and looking at all the facts in the round, and not focussing only on the detail of the various individual acts of discrimination. We Fraser v University of Leicester UKEAT/0155/13 at paragraph 79.[163]The time limit in which complaints of discrimination should be brought is set out in Section 123 of the EqA: of the period of 3 months starting with the date of the act to which the complaint relates, or such other period as the Employment Tribunal thinks just and equitable. (3) For the purposes of this section conduct extending over a period is to be treated as done at the end of the[164]The time limit is adjusted to take account of pre-claim conciliation.[165]Conduct continuing over a period is treated as done at the end of period. When there are a number of incidents occurring over a period of time they may in appropriate circumstances be considered as being part of a continuing act in the sense of a continuing state of affairs pursuant to which discriminatory acts occurred from time to time; Hendricks v Commissioner of Police of the Metropolis [2003] ICR 530.[166]A distinction is to drawn between conduct extending over a period and a one off act that has continuing consequences: Barclays Bank v Kapur [1991] 2 A355, [1989] ICR 753; Owusu v London Fire and Civil Defence Authority [1995] ICR 574 c.f. Sougrin v Haringey Health Authority [1992] 650.[167]In considering whether it is just and equitable to extend time the Tribunal should have regard to the fact that the time limits are relatively short. Extension of time should be the exception, although the Tribunal has a broad discretion to extend time when there is a good reason for so doing: Robertson v Bexley Community Centre (t/a Leisure Link) [2003] IRLR 434. The fact that an employee is pursuing an internal grievance or other procedures is a factor that may be taken into account in determining whether time should be extended: Apelogun-Gabriels v Lambeth London BC [2002] ICR 713. Analysis[168]The list of issues in this matter is extremely detailed and, in many places, repetitive. At times the allegations are salami sliced into a series of nearly identical complaints under numerous heads of complaint. In reality there are a number of key complaints. These relate to the appointment of Mr Whittern as point person/acting Deputy Head of Markets Compliance, the appointment process for the new Head of Markets Compliance, the treatment of the Claimant during her maternity leave, the Claimant's job role on her return from maternity leave, the recruitment process for the Eastern and Western Europe Compliance role and the manner in which the Claimant's grievances were dealt with. We have focused on these key issues in reaching our determination.[169]The determination of discrimination claims rests primarily on the drawing of appropriate inferences. In certain cases that can be done by using section 136 EqA as a tool. However, section 136 EqA can be difficult to apply in practice. It can be conceptually difficult to separate treatment from which an inference might be drawn from the explanation for that treatment. A holistic approach to drawing inferences is sometimes more effective, considering the totality of the evidence to decide the reason for treatment.[170]The Respondent accepts that, as in much of the banking sector, there is a significant underrepresentation of women in more senior roles. At the Respondent there is a significant underrepresentation of women at level L3, the level of the Head of Markets Compliance and above. In the London office there has been no promotion of a woman to a L3 level in compliance since 2012.[171]Dr James told us that she has given some thought to why there is such an underrepresentation of women at the higher levels of her industry. She told us that she had pondered whether it may be that there are many steps of promotion to climb. If women are only disadvantaged by a small percentage at each step, as they climb there is a compounded disadvantage, with the percentage of women eligible for progression dropping at each step, which results in few women being at the higher levels.[172]A relatively small hand up to an employee may have substantial and long lasting effects. Being allowed to act in a role may provide the experience that enables a person subsequently to be promoted to a substantive role at that level. Where such advantages and promotions occur in an opaque environment there is much more risk of discrimination occurring. If such assistance is disproportionately given to men that will have a substantial effect over time.[173]It is notable that there are no written records of the decision to make Mr Whittern the point person/acting Head of Department and there are no records of the interviews of the internal candidates who applied to be Head of Markets Compliance. This is just the type of opacity that can allow discrimination.[174]Discrimination may result from stereotypical assumptions that disadvantage women. Traits that are considered as positives in men may be seen as negative when they are exhibited by women. Men are often praised for their hard work and determination, whereas in this case it is notable that Mr Niermann referred to the Claimant's unhealthy obsession with work[175]Men are often praised for ambition and wishing to progress whereas Mr Niermann stated when trying to explain what he meant by the word divisive , when applied to the Claimant and Ms von Pickartz, said that when they discovered that Mr Jooma was leaving they came to his office and tried to put their positions forward which he considered was intrusive e criticised them for trying to their own interests n alternative word that that might better describe what he was referring to was forceful he accepted that that might well be the case. Men are often lauded for being forceful personalities whereas Mr Niermann saw it as a negative when demonstrated by these two women. We appreciate that English is not Mr Niermann seek to explain precisely what he meant.[176]Men are often praised for their commitment to work whereas it is notable that a number of the Respondent have spoken of the Claimant in a pejorative manner for returning to work after her waters broke and she had attended hospital. It was clear that her baby was likely to come earlier than expected and she attempted to finish off some work before she left. While it is understandable and reasonable for her colleagues to be concerned for the health of a pregnant woman and her baby, the Respondent has not explained why they spoke of the Claimant in such pejorative terms had to be forced out of the office . Mr Dyos referred to this being an example of the Claimant being controlling Some of the witnesses spoke of their experience as fathers as if it would allow them to judge the situation better than the Claimant could herself.[177]There can also be a tendency, particularly where advantages are awarded without transparency, for people who select to prefer those who look like themselves. It is telling that Mr Diaz suggested that the explanation why Mr Whittern was recorded in 2015 as the person closest to promotion was because of his personality that he was easy to get along with and a good communicator . There was nothing to suggest that the Claimant and Ms von Pickartz were poor communicators and to the extent that there was tension in the office that resulted from Mr Whittern having been made point person/acting head without transparency, and the continued pretence that this was of no real significance.[178]Another aspect of a tendency to prefer those who are like oneself can be to prefer their explanation for problems.[179]There can also be a stereotype that women are too emotionally involved in office relations or politics. This stereotype was demonstrated by Mr Niermann describing the Claimant and Ms von Picard as divisive He seemed almost unable to explain why he used the term. The only thing he could come up with was that they wished to put themselves forward as possible replacements for Mr Jooma. The word divisive was repeatedly used in this case, but only about women. Mr Walsh was unable to give a rational explanation why he referred to Ms von Pickartz as divisive, suggesting unconvincingly that she divided opinion. There was an assumption that relations in the office must be the fault of t .[180]There were long-standing problems within the Markets Compliance Team. We are mindful of the fact that Mr Jooma has not given evidence and so has not been able to give his version of events. The evidence we have heard suggests that the problems in the department mainly resulted from his management style. That was the evidence of the Claimant and Ms von Pickartz. That was what Mr Whittern had been told prior to joining the Respondent. Mr Whittern queried the possibility that he might be micromanaged by Mr Jooma. The potential problems with Mr Jooma had been highlighted by the recruitment agent, who could only realistically have received that information from the Respondent. Mr Whittern spoke with the Claimant and Mr Clinch about Mr Jooma and understood that they both were unhappy about Mr[181]Despite that evidence it is clear Mr Niermann quickly formed a negative view of the Claimant and Ms von Pickartz. At paragraph 17a Mr Niermann complains that they made tendentious complaints that they had been micromanaged by Mr Jooma. It is hard to understand why he formed the view that they were being tendentious and why was he was so quick to support Mr Jooma. He rejected what two women had told him about Mr Jooma and preferred to side with another man. Indeed, Mr Niermann went further and concluded that both women were self-serving in making the complaints. He concluded that the poor relations in the department must be the fault of the two women.[182]Mr Niermann decided at an early stage that it was unlikely that any of the VP's would be appropriate for the Head of Markets Compliance because of toxic atmosphere. He did not consider that Mr Jooma might have been responsible for created the divisions within the team.[183]We find that Mr Whittern was treated as the senior member of the team by Mr Niermann. We considered that Mr Niermann was disingenuous when he suggested that the point person/acting head of Department role was of no great significance. We consider that from the start Mr Niermann wanted to make Mr Whittern effectively the acting head of Department. It was a significant advantage. We accept that Mr Niermann did treat and regard Mr Whittern as the senior member of the team. He did so, to a significant extent, because he made stereotypical assumptions about the Claimant and Miss Von Pickartz being divisive that were gender related. Gender was a significant and material factor in the decision taken by Mr Niermann to favour Mr Whittern over the Claimant. We consider that Mr Niermann treating Mr Whittern as senior person constituted direct sex discrimination. We also consider that his appointment as point person/acting head was an act of direct sex discrimination. We accept that at the time this decision was taken Mr Niermann did not appreciate that the Claimant was deputy, so we do not find there was a separate act of discrimination in her being side-lined as deputy.[184]We hold that there were repeated denials that Mr Whittern had been elevated. We consider this had the effect of violating the Claimant's dignity and was related to her gender, in that Mr Niermann did not tell the truth about the situation to the Claimant and Miss Von Pickartz because he considered them to be divisive. This involved gender stereotyping them as explained above. It is reasonable for the Claimant to consider the treatment to have the effect of violating her dignity and we find that the treatment constituted harassment.[185]We consider that the Claimant was not fairly considered for the Head of Market Compliance role. From an early stage Mr Niermann had decided that he was not at all likely to award the position to an internal candidate. We do not consider this initially excluded Mr Whittern. It did exclude the Claimant and Miss Von Pickartz. From the outset there was no realistic prospect of them being appointed. Again this is because of the stereotypical characterisation of them by Mr Niermann as being divisive women and because Mr Niermann resented them seeking to put themselves forward which he saw as a negative for these two women, whereas we do not consider he would have criticised a man in similar circumstances. We find that this was direct sex discrimination. These stereotypical assumptions wold not have been made against the Claimant if she was a man.[186]We do not consider that there is a basis on which the Claimant should have been appointed automatically to the post of Head of Markets Compliance. We consider that open and fair recruitment should have been applied.[187]As the Claimant was not in the running for the position we do not get to the stage at which the was a selection between her and Mr Dyos. What would have happened if the Claimant had been fairly considered will be a matter to determine as a remedy issue.[188]We do not consider that there is separate discrimination in Mr Niermann failing to provide feedback. We consider he did provide feedback of the limited nature that he stated that he wanted candidate that could hit the ground running. We do not consider that this referred to an someone who would not be absent on maternity leave which is the basis upon which it was agued by the Claimant to be discriminatory. It really was a way of trying to explain that he wished someone to take over management of the Department and deal with what was in his perception a toxic environment; i.e. an explanation of the conduct we have found discriminatory, rather than a further free standing act of discrimination. We do not consider it had the purpose or effect of creating a hostile environment etc and do not consider it was an act of harassment.[189]We consider that the most likely explanation IT equipment being disabled for a period of two weeks is that HR when dealing with her maternity leave provided for the first two weeks to be MTA. We do not see that this can be seen as a detriment as the period fell within the compulsory maternity leave period, during which it would be a criminal offence for the Respondent to allow the Claimant to undertake any work. We do not consider it had the purpose or effect of creating a hostile environment etc and do not consider it was an act of harassment.[190]We consider that the Claimant was discouraged from attending the quarterly Review Meeting because of assumptions made about what a woman should do while on maternity leave. This was outside of the compulsory maternity leave period. There was no reason why the Claimant should not attend and we consider that she was dissuaded because she was undertaking maternity leave. We find that this was an act of maternity discrimination.[191]We do not find that there were any other separate acts of discouraging the Claimant from participating in work, or excluding her from work, during the maternity leave period.[192]On return from the maternity leave the Claimant found that substantial elements of her job had been transferred to Ms Burch. When the Claimant left for maternity leave Ms Burch took over nearly the entirety of her role. When Ms Bailey joined rather than providing maternity cover by doing the Claimant's job she provided support, advice and supervision to Ms Burch who continued to essentially undertake the Claimant's job. That is why no handover on the Claimant's return. There was no real intention of Ms Burch handing back the work to the Claimant. , despite the protestations to the contrary, been essentially at the same level. The Claimant has not been permitted to conduct the managerial aspect of her role. We consider that was done because the Claimant was on maternity leave. We consider that it represents maternity discrimination. The maternity leave was not just a circumstances in which the d but advantage was taken of the Claimants absence on maternity leave to pass significant elements of her role to Ms. Thereafter we find that the Claimant was side-lined as Ms Burch line manager on her return from maternity leave and her role was diminished. That is continuing and we consider it is ongoing maternity discrimination.[193]Mr Niermann and Mr Dyos did not fully address the Claimants concern about Ms Burch reporting to her. However, we do not consider that that was a separate act that was related to the Claimant's gender.[194]We consider that the real detrimental treatment that the Claimant suffered was the passing of a substantial element of her work to Ms Burch. We consider that the treatment is ongoing and forms part of a continuing act with the appointment of Mr Whittern as point person/acting head, the failure to properly consider the Claimant for the Head of Markets Compliance role, and that therefore the claims were submitted within time.[195]We do not consider that the Claimant was subject to discrimination in respect of the head of Eastern and Western Europe Compliance role. We consider that this was not direct sex discrimination or maternity discrimination harassment or victimisation. Claimant was not considered for the role because she did not apply. We do not consider that the failure to inform the Claimant of the opening of the post or that it had become available on the computer system was done in any sense because of her pregnancy, maternity or gender or, in respect of informing her about the role becoming available, because of her having done a protected act. The Claimant alleges that there was a failure to give her advance notice of the post becoming available. Again this had nothing to do with her gender or maternity. The reason the Claimant was not appointed was because she did not apply. Her circumstances were materially different to Mr Rogalla.[196]To the extent it could be said that any provision criterion or practice was applied by discretion in respect of promotions being granted to managers we consider that this is an example of the type of case that Lady Hale referred to in Esopp. It is necessary for a Claimant to establish that she has suffered a disadvantage as a result of the PCP being applied to her. Just as in the example given by Lady Hale an employer could defend claim of indirect discrimination in respect of a written test by showing that candidate did not complete the test, in the case of a job application any PCP in relation to selection cannot be the cause of the disadvantage if the woman did not apply.[197]We do not consider that the is any proper basis on which the Claimant should been transferred into the role as a means of resolving her grievance. That would have been contrary to proper recruitment practices.[198]We consider that the second grievance was determined within a reasonable period of time. We do not accept that the Claimant was subject to a detriment in this regard.[199]We consider that the grievances were dealt with genuinely. Although we have reached a different conclusion about discrimination we accept that Dr James was seeking genuinely to reach proper conclusion on the grievance. She is not an equalities law specialist and was undertaking her first grievance. While she may have not tested some of the evidence more robustly we do not consider this was because of the allegations of sex discrimination. We consider that she formed a genuine opinion to the best of her abilities and do not consider that a victimisation complaint is made out in respect of the grievance decision.[200]If we had not held that there is a continuing act we would have extended time in respect of the allegations we find proven. The Claimant stated repeatedly in her evidence that she was repeatedly told that she was overreacting. She was keen not to do so and to seek to resolve matters at work. The Claimant was repeatedly told by Mr Niermann and Mr Dyos that she was overreacting to Mr Whitton's role as point person that it was of nothing of real significance. It took her a considerable time to appreciate the role really was as significant as she thought. Mr Dyos repeatedly suggested that the Claimant role had not changed on her return form maternity leave, whereas in reality she had lost nearly all of the management element of her role and much of her work had been passed to Ms Burch. Again, it took time for her to appreciate that was the case. The Claimant sought to resolve mattes internally and thought that the Head of Eastern and Western Europe Compliance role might be an opportunity for resolution, but unfortunately did not see the advertisement.[201]The Respondent had been able to robustly defend the claim they have not been disadvantaged by any delay in putting forward their case as cogently as they could. We would have considered it just and equitable to extend time
Credibility
[202]We did not consider that the statistics with which we were provided about women in management positions at the respondent enabled us to reach any general conclusions about the respondent or any specific conclusions about this issue. We also did not consider that the evidence about Dr Niermann’s role in the promotion of women employees cast any light on this particular recruitment exercise. The evidence did not demonstrate that he had personally been involved in promoting women at the head of markets level but nor did it tend to suggest that he had unfairly failed to promote women to that level. Dr James’ evidence about the respondent’s various equal opportunities initiatives did not seem to tell us anything about Dr Niemann’s approach to this particular recruitment exercise.[203]We concluded that the claimant had not been fairly considered for the post of head of markets. The features of the process which seemed to us to be unfair included the following: - the claimant had a very short interview with Dr Niermann. No notes were made. There was no scoring contrary to the respondent’s own recruitment procedure and no use of the template form which would have guided Dr Niermann to assess the claimant against some explicit criteria defined for the role; - by the time the claimant was assessed by Mr Rock, in the same apparently informal way, it is difficult to know what objective evidence would have remained from the previous interview, in the absence of notes; - contrary to the respondent’s own procedure, there was a move to include external candidates before any proper assessment of internal candidates had been conducted. There was no attempt to prioritise the internal candidates.[204]Was the claimant treated less favourably than a man? In one sense she was not; the actual comparator, Mr Whittern also appears to have been subject to the same unsatisfactory and untransparent process[205]However, we also had to consider whether the whole process would have been the same (and equally unfair) had there been a hypothetical man in the claimant’s position, ie someone with greater seniority than Mr Whittern who was identified as the best of the three internal candidates and appointable by Mr Walsh.[206]Dr Niermann was not able to say exactly when he ruled out the internal candidates. He told Mr Walsh that he had ruled them out by the time Mr Walsh was asked to interview external candidates in early November.[207]It was clear to us that one of the reasons Dr Niermann looked externally was the perception about there being unfortunate politics within the team including a perception of the claimant as being a divisive personality. As time wore on, we concluded that there were tensions in the team created by the appointment of Mr Whittern as acting head and the obfuscation around that appointment. That appointment we have found to have been discriminatory.[208]The perception of the claimant as ‘divisive’ was created in part we have concluded because of a perception about the difficulties with Mr Jooma being her fault, which we have already concluded was tainted by sex.[209]The structural problems in the team were not created by the claimant or any other internal candidate and there was no evidence from Dr Niermann as to why an internal candidate could not have addressed those issues.[210]The unreasonableness of Dr Niermann’s failure to follow the respondent’s recruitment policy was, we accepted, part of what appeared to be a more widespread laxness in compliance with the procedure. However, the unreasonableness in respect of the interviews of the internal candidates contrasted with the less significant unreasonableness of Mr Walsh’s interviews with the external candidates. The external candidates had longer interviews, notes were recorded and Mr Walsh applied his own informal scoring system. We note however that there appeared to us to be a significant risk of bias in Mr Walsh’s methods, based on the evidence we heard from him. We were not satisfied that the explanation for the degree of unreasonableness by Dr Niermann was widespread disregard for the recruitment procedures. We had limited evidence as to the general practice but note that Mr Jooma used the appropriate form when recruiting the[211]Looking at those facts in particular and the not adequately explained unreasonableness of Dr Niermann in failing to use the respondent’s own recruitment procedure, it seemed to us that there were facts from which we could reasonably conclude that the process was materially influenced by the claimant’s sex, and in particular that Dr Niermann followed a process which was aimed at not appointing the leading internal candidate for the role because she was female. The lack of documentation and the minimalist interviews create serious doubt as to whether the interviews with Mr Rock were anything other than an attempt to go through the motions with the internal candidates. Alternatively, it may be that Dr Niermann would have been content with Mr Whittern being appointed but Mr Rock’s opposition to that appointment meant that he then concluded that an external appointment should be made.[212]We considered the burden of proof had shifted and so we looked at Dr Niermann’s explanation and the contextual facts and considered whether the respondent had satisfied us that the unfairness in the process was not materially caused by the claimant’s sex.[213]Dr Niermann gave essentially two reasons for ruling out the claimant and other internal candidates: - The team needed an overhaul and he was doubtful whether it was possible politically for an internal candidate to do the role; - He wanted someone with more management experience than the claimant or other internal candidates had. These were not reasons he detailed to Mr Walsh at the time of their discussion about the internal candidates[214]We were not satisfied that the respondent had discharged the burden of proof. This was for many of the same reasons we have rehearsed in relation to the other claims above – including Dr Niermann’s impaired credibility, the opacity of the process, the paucity of contemporaneous documentation and our conclusion that his perception of the claimant and her ‘divisiveness’ and involvement in ‘politics’ was tainted by her sex. We also bore in mind that Mr Walsh, a credible person trusted by the respondent to be involved in the recruitment process, considered the claimant to be appointable. Her appointment as Mr Jooma’s deputy showed at least that she was on a leadership path as did the 2014 talent discussion. The discriminatory appointment of Mr Whittern to the point person / acting head role which we found was also a factor in our conclusions.[215]There was no evidence that Dr Niermann actually investigated or considered what management experience the claimant had at the time. There were no notes of his brief interview and he did not give evidence of discussing management experience with her or looking at her CV. In the absence of any contemporaneous evidence that this was a factor and in light of the other factors we have set out above, we did not accept that this was a genuine explanation for the decision, alone or in conjunction with the concern about ‘politics’.[216]The binding finding of the Tayler Tribunal as to the feedback meeting is evidence that Dr Niermann did not at that point provide any detailed feedback to the claimant that her lack of management experience was a factor in the decision-making. That finding was as follows: We do not consider that that there was separate discrimination in Mr Niermann failing to provide feedback. We consider he did provide feedback of the limited nature that he stated that he wanted candidate that could hit the ground running. We do not consider that this referred to someone who would not be absent on maternity leave which is the basis upon which it was agued by the Claimant to be discriminatory. It really was a way of trying to explain that he wished someone to take over management of the Department and deal with what was in his perception a toxic environment; i.e. an explanation of the conduct we have found discriminatory, rather than a further free standing act of discrimination. We do not consider it had the purpose or effect of creating a hostile environment etc and do not consider it was an act of harassment.[217]Our conclusion is that the claimant was ruled out for reasons connected with her sex without there having been any comparison of her with Mr Dyos. It was therefore not necessary for us to seek at this liability stage to assess what a non-discriminatory assessment of the claimant and Mr Dyos would have resulted in.[218]We upheld this complaint. Harassment – s.26 EqA 9. The relevant protected characteristic of the Claimant is her sex. Issue: 10. Were there were repeated denials by Stephan Niermann to the Claimant that Kevin Whittern had been elevated. Were those denials untrue?[219]The respondent’s case, in a nutshell, was that the claimant was told by Dr Niermann at the meeting on 12 August 2015 that Mr Whittern was the point person. The position did not change thereafter and so the claimant was not misled.[220]On our findings of fact, Mr Whittern was more than point person and was ‘acting head’ as indicated in the Team Excellence documents. Dr Niermann did obfuscate with the claimant about that on 22 September 2015 and on 2 December 2015 and by implication at all times between those dates. The claimant would have been confronted by evidence that Mr Whittern was being treated as and recognised as acting head and that position was denied by Dr Niermann when she raised it with him. Issue: 11. If so, was this conduct unwanted?[221]We accepted that this conduct was clearly unwanted by the claimant. She wanted to know the truth about the appointment because not knowing it was confusing and destabilising. Issue: 12. If so, did this conduct have the purpose or effect of:12.1 violating the Claimant’s dignity; or12.2 creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?[222]The claimant’s evidence to us about the effect of the denials on her was that: It undermined me, made me doubt myself and think I was going mad when he knew exactly what he was doing. Giving Kevin an elevated position above the deputy head, he created a pseudo position which he said meant nothing but it was above the deputy head. It was the person he wanted to speak to on a regular basis, he did not want speak to me and Janine on a regular basis.[223]The situation created or significantly contributed to the deterioration in relations between the claimant and Ms von Pickartz and Mr Whittern.[224]We concluded that the effect of the treatment was sufficient to create a degrading, humiliating or offensive environment for the claimant and that it was reasonable for the treatment to have that effect. Being misled by a manager about an important matter in the face of significant evidence to the contrary was treatment which would reasonably have the effect the claimant described on an employee in that work context. Issue: was the conduct related to sex?[225]We considered that the fact that Dr Niermann’s denials arose from his discriminatory appointment of Mr Whittern to the more senior role was sufficient to establish a relationship with sex.[226]For those reasons we upheld the harassment claim. Time Limits – s.123 EqA Issue: 13. Where any of the complaints made by the Claimant brought within the period of three months starting with the date of the act to which the complaint relates?[227]The last act which this Tribunal was considering was the further denial of Mr Whittern’s elevation in December 2015. The claim form was presented on 12 September 2017.[228]However, the claimant initially had brought other claims to the Tribunal. One of the claims which succeeded before the Tayler Tribunal related to what happened to the claimant’s role whilst she was on maternity leave: On return from the maternity leave the Claimant found that substantial elements of her job had been transferred to Ms Burch. When the Claimant left for maternity leave Ms Burch took over nearly the entirety of her role. When Ms Bailey joined rather than providing maternity cover by doing the Claimant's job she provided support, advice and supervision to Ms Burch who continued to essentially undertake the Claimant's job. That is why no handover on the Claimant's return. There was no real intention of Ms Burch handing back the work to the Claimant,despite the protestations to the contrary, been essentially at the same level. ... Thereafter we find that the Claimant was side-lined as Ms Burch line manager on her return from maternity leave and her role was diminished. That is continuing and we consider it is ongoing maternity discrimination.[229]It is important to note therefore that whilst none of the claims before this Tribunal is on its face in time, some of the other claims presented to the Tayler Tribunal were presented in time. If the claims in front of us are properly regarded as a continuing act when considered with the in time claims, those claims will also be in time. Issue: 14. If not, were the complaints part of conduct extending over a period and, if so, what was the last act of that conduct extending over a period?[230]Dr Niermann returned to Frankfurt in December 2016 and had no further material involvement with the claimant. The respondent’s submission to us was that the findings of maternity discrimination made by the Tayler Tribunal were findings made against Mr Dyos. There were no facts which could properly connect the earlier allegations we were considering against Dr Niermann with those claims so that there was a continuing act.[231]It did not appear to us, looking at our own findings of fact and the areas in which we were bound by the findings of the Tayler Tribunal that we could properly conclude that there were continuing acts as between the allegations we considered and the claims upheld by the Tayler Tribunal. Issue: 15. If any of the complaints made by the Claimant are out of time, has the Claimant proved that it is just and equitable that time should be extended?[232]We looked carefully at factors including the length of and reasons for the delay and whether the respondent was prejudiced by the delay.[234]The claimant was on maternity leave between March and September 2016. One of the matters she was already concerned about was Mr Dyos’ appointment and she did not receive any feedback about that until 2 June 2016.[235]We considered the following: - during the autumn of 2015, the claimant was being misled by Dr Niermann about the position in relation to the acting head role. She was seeking to understand what was happening and preserve her own position. At a time when she was preparing for maternity leave, she had imperfect information about a situation which was causing her concern. - she was then on maternity leave and in our view could not reasonably have been expected to commence proceedings about the concerns which had been developing before her departure - when the claimant returned from maternity leave she was faced with a situation where, on the findings of the Tayler Tribunal, much of her role had been removed. After a number of efforts to address the situation with Mr Dyos, she then brought a grievance in March 2017. - she made significant efforts to resolve matters internally by applying for new roles and pursuing her internal grievance before pursuing Tribunal proceedings.[236]It seemed to us that the delay was explained by a combination of the claimant’s developing knowledge of her position at work (which worsened over the period), her maternity leave and her sustained and sensible efforts to resolve the position internally. We note this statement from the grievance process which encapsulates the claimant’s evidence about her developing sense that her promising career at the respondent was being undermined: Jagruti feels that the profile she worked so hard to build has been diminished over the last 19 months and she is effectively starting over again with one hand tied behind her back.[237]The respondent brought no evidence and made no submission to suggest that there was any prejudice caused to the respondent by the initial delay in presentation of the earlier claims, either at the hearing before the Tayler Tribunal or before us.[238]In all of the circumstances we concluded that it was just and equitable to extend time. Remedy hearing[239]The parties will be sent a notice of hearing for a two hour case management hearing to give directions for a remedy hearing.
Credibility
[1]There was a 60% chance the claimant would have been appointed to the Head of Markets role had she not been subjected to unlawful discrimination.[2]Had she been appointed to the role of Head of Markets she would have been appointed around 1 October 2015.[3]Had she been appointed to the Head of Markets role, the claimant would have had the same salary and bonus as Mr Dyos and the pension arrangements she had accrued due to having been employed by the respondent in excess of two years.[4]The claimant is awarded £201,650. 55 for loss of salary, bonus and pension payments.[5]The claimant is awarded £25,000 for injury to feelings. No award is made for aggravated damages.[7]No award is made for the costs of training or psychotherapy.[8]Interest is awarded on the losses at the Judgments Act rate in the sums of: a) On financial losses: £60,071.70; b) On injury to feelings: £13,962.50.[9]The total sum awarded to the claimant is £300,684.75.[10]Should the Tribunal award interest on any sums awarded pursuant to r.2 Employment Tribunals (Interests on Awards in Discrimination Cases) Regs 1996?[11]If so, for what period or periods? Would awarding interest in accordance with r.6(1)-(2) cause a serious injustice? If so, for what alternative period or periods should interest be awarded? G. TAX[12]The sums in the Schedule of Loss are claimed gross of tax. Before the Tribunal finalises any award, net figures will need to be calculated and the total figure will need to be grossed up in accordance with the principles in Shove v Downs Surgical plc [1984] ICR 532. Findings of fact
The hearing
[1]We were provided with the following documents: - A bundle of documents running to 1847 pages electronically. We were in fact referred to very few of these documents; - A witness statement bundle which included the statements from the liability hearing(s) and from the remedy hearing before the Tayler Tribunal, statements from the original remedy hearing and new statements from the claimant relating to remedy.[2]We read the claimant’s witness statements and she confirmed the truth of the statements. The balance of the hearing time was taken up with Tribunal reading and oral submissions from the parties.[3]We asked the parties to revise their schedules so that we could see what was agreed and not agreed in terms of calculations and the parties provided further drafts after the oral submissions were concluded. After we had nearly finalised this Judgment, it appeared that there were some unresolved matters and we referred the schedules back to the parties, who were able to agree the underlying figures for loss of salary, pension and bonus to which we would apply our findings as to percentage chance of appointment. We are grateful for their ongoing assistance. Facts in the claim[4]These Reasons should be read in conjunction with the Reasons for the liability judgment. Evidence as to salary and bonus: Mr Dyos and the claimant[5]At the time of the appointment to the Head of Markets role, the claimant’s annual salary was £97,251.[6]Her yearly bonus was a percentage of a figure up to £40,000 (her ‘target’).[7]We saw an internal email dated 9 December 2015 which put forward a proposal for Mr Dyos’ salary package as Head of Markets. It set out various information considered relevant to that calculation. Mr Dyos’ current salary at his role external to the respondent was £135,000. His last bonus in that employment was £22,500. His proposed salary and target bonus were £160,000 and £40,000 respectively.[8]The email set out the McLagan data, which we understood to be data about market rates for similar roles. They ranged from a lower quartile rate of £125,000 to an upper quartile rate of £154,800.[9]Three internal comparators were also set out. These were: Previous incumbent, Mr Jooma: salary £113,500, target bonus £51,500 Mr Walsh: salary £136000, target bonus £70,000 Mr D Keay: salary £145,000, target bonus £50,000.[10]The rationale provided in the email for Mr Dyos’ salary (which was significantly higher than that paid to Mr Jooma) is that it was necessary to secure him in a ‘tight’ market to avoid having to run a further lengthy recruitment process.[11]Mr Dyos was appointed at the salary and target bonus contended for in this email. Evidence as to the respondent’s pension scheme[12]We saw some evidence about how pension entitlement was calculated for the respondent’s employees.[13]The respondent’s core contribution to pension was 10% of salary up to £100,000 annual salary. Over £100,00 the bank would pay a further 10% up to £150,000.[14]After two years’ service, an employee could decide to make contributions to the pension of up to an extra 4% of salary. These would be matched by the bank, subject to a salary cap of £150,000. Evidence on injury to feelings[15]The claimant told the Tribunal that the discrimination had caused her distress during the period when she had just given birth to her daughter and during the child’s early years. The effects on her career at a period when she was vulnerable due to having just given birth were very upsetting. She said that she had had what she described as a breakdown on 12 January 2018 although we did not hear more about that. She described the treatment as destroying her sense of confidence and self esteem.[16]We saw some medical evidence: - A letter to the respondent from the claimant’s GP dated 5 February 2018. This reported on the difficult relationship with a junior colleague causing the claimant ‘significant anxiety and stress’ as well as the claimant’s feeling about having been overlooked for promotion. The colleague, Ms Burch, was the colleague the Tayler Tribunal found had largely taken over the claimant’s role during her maternity leave. - A letter from the claimant’s GP to a consultant dated 19 February 2019 describing the claimant as having a mixed picture of low mood and anxiety triggered by s stressful situation at work. The claimant had recently started taking antidepressants and the GP recommended CBT. - The claimant’s GP notes. On 23 July 2018, the claimant was noted to have ‘ongoing issues at work’ and a lack of enjoyment of food. On 15 March 2019 she was said to have had ongoing stress at work for over a year. She was given a repeat prescription of antidepressants at a higher dosage. She had had counselling the previous year for three to four months but found it difficult to fit in. - There were records which showed the claimant’s worsening mental health in 2019 and 2020 onwards which include admissions to the Priory Hospital in September and October 2020 and August 2021. We are conscious that the claimant is claiming personal injury damages in her second set of proceedings arising from matters which occurred after the acts of discrimination we have to consider in these claims. Medical evidence relevant to the claim for psychotherapy costs[17]As we have observed, there is no personal injury claim in these proceedings.[18]We saw a ‘to whom it may concern’ letter dated 28 October 2022 from a clinical psychotherapist, Ms K Dombrowicz. This said that the claimant had been under the writer’s care from April 2021 with a diagnosis of ongoing depressive episode secondary to a psychosocial episode, generalised anxiety disorder, trauma and PTSD. The treatment had terminated in August 2022 as the claimant’s insurance policy cover had run out. Ms Dombrowicz said that the claimant had continued to struggle with the symptoms of these disorders . She recommended that the claimant have a further 26 sessions at £250 per session. Evidence relevant to the claim for training costs[19]We saw some brochures for the courses the claimant wished to attend. These were provided by the London Business School. One was called Women in Leadership. It involved about six days of teaching in person and remotely. We were not able to derive any good sense from the brochure of what exactly the claimant would learn. This course the claimant said costs £10,500. There was a brochure for a course called High Performance Skills for Leaders which would take place over a week and cost £8,900. The claimant said these courses were recommended to her after a discussion with some of the course providers at the London Business School.[20]There was no detailed information about the third course that the claimant wished to pursue and which she said had been recommended to her, the Accelerated Development Programme. That course costs £19,500. Law Compensation for Discrimination
Law
[21]The Tribunal’s power to award a remedy in a discrimination case is governed by section 124 of the Equality Act 2010. Compensation for Financial Loss[22]The measure of loss is tortious with the effect that a claimant must be put, so far as possible, into the position that she would have been in had the act of discrimination not occurred (Ministry of Defence v Cannock [1994] IRLR 509, De Souza v Vinci Construction UK Ltd [2017] EWCA Civ 879. The Tribunal must assess the chance that the same damage would have occurred absent unlawful discrimination. Injury to feelings[23]The tribunal has the power to award to compensation to an employee for injury to feelings resulting from an act of discrimination by virtue of sections 124(5) and 119(4) of the Equality Act 2010.[24]The purpose of the award is to compensate the complainant for the anger, upset and humiliation caused by the discrimination.[25]As set out in Prison Service v Johnson [1997] IRLR 162: - Awards should be compensatory and just to both parties; - Awards should not be too low as this would diminish respect for the antidiscrimination legislation; - Awards should bear some broad general similarity to the range of awards in personal injury cases; - In exercising their discretion tribunals should remind themselves of the value in everyday life of the sum they had in mind by reference to purchasing power or earnings and should bear in mind need for public respect for the level of awards made.[26]Where there are separate claims giving rise to injury to feelings, the Tribunal should stand back and look at the overall magnitude of the global sum to ensure it is proportionate and that there is no double counting: Al Jumard v Clywd Leisure Ltd [2008] IRLR 345.[27]In determining the amount of the award, we are required to follow the Vento guidelines in place when the claim was presented. The bands were: Lower band: £800 - £8400 Middle Band: £8400 - £25,200 Upper band £25,200 - £42,000[28]We can also gain some assistance from quantum reports in cases considered by other tribunals. Aggravated damages[29]We were much assisted by guidance in Commissioner of Police of the Metropolis v Shaw UKEAT/0125/11/ZT: Criteria. The circumstances attracting an award of aggravated damages fall into the three categories helpfully identified by the Law Commission: see para 16(2) above. Reviewing them briefly:(a) The manner in which the wrong was committed. The basic concept here is of course that the distress caused by an act of discrimination may be made worse by it being done in an exceptionally upsetting way. In this context the phrase “high-handed, malicious, insulting or oppressive” is often referred to (as it was by the tribunal in this case). It derives from the speech of Lord Reid in Broome v Cassell & Co Ltd [1972] AC 1027 (see at p 1087G), though it has its roots in earlier authorities. It is there used to describe conduct which would justify a jury in a defamation case in making an award at ‘the top of the bracket’. It came into the discrimination case law by being referred to by May LJ in Alexander v Home Office [1988] ICR 685 as an example of the kind of conduct which might attract an award of aggravated damages. It gives a good general idea of the territory we are in, but it should not be treated as an exhaustive definition of the kind of behaviour which may justify an award of aggravated damages. As the Law Commission makes clear an award can be made in the case of any exceptional (or contumelious) conduct which has the effect of seriously increasing the claimant’s distress.(b) Motive. It is unnecessary to say much about this. Discriminatory conduct which is evidently based on prejudice or animosity or which is spiteful or vindictive or intended to wound is, as a matter of common sense and common experience, likely to cause more distress than the same acts would cause if evidently done without such a motive say, as a result of ignorance or insensitivity. That will, however, only of course be the case if the claimant is aware of the motive in question: otherwise it could not be effective to aggravate the injury: see Ministry of Defence v Meredith [1995]IRLR 539, 543, paras 32—33. There is thus in practice a considerable overlap with head (a). c) Subsequent conduct. The practice of awarding aggravated damage for conduct subsequent to the actual act complained of originated, again, in the law of defamation, to cover cases where the defendant conducted his case at trial in an unnecessarily offensive manner. Such cases can arise in the discrimination context: see Zaiwalla & Co v Walia [2002] IRLR 697(though NB Maurice Kay J’s warning at para 28 of his judgment (p 702)) and Fletcher [2010] IRLR 25. But there can be other kinds of aggravating subsequent conduct, such as where the employer rubs salt in the wound by plainly showing that he does not take the claimant’s complaint of discrimination seriously: examples of this kind can be found in Armitage, Salmon and British Telecommunications plc v Reid [2004] IRLR 327. … 23 How to fix the amount of aggravated damages. As Mummery LJ said in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318,331—332, paras 50—51,’translating hurt feelings into hard currency is bound to be an artificial exercise’ Quoting from a decision of the Supreme Court of Canada, he said: ‘The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. ’Since there is no sure measure for assessing injury to feelings, choosing the ‘right’ figure within that range cannot be a nicely calibrated exercise’. Those observations apply equally to the assessment of aggravated damages, inevitably so since, as we have sought to show, they are simply a particular aspect of the compensation awarded for injury to feelings; but the artificiality of the exercise is further increased by the difficulty, both conceptual and evidential, of distinguishing between the injury caused by the discriminatory act itself and the injury attributable to the aggravating elements. Because of that artificiality, the dividing line between the award for injury to feelings on the one hand and the award of aggravated damages on the other will always be very blurred, and tribunals must beware of the risk of unwittingly compensating claimants under both heads for what is in fact the same loss. The risk of double-counting of this kind was emphasised by Mummery LJ in Vento; but the fact that his warnings not always heeded is illustrated by Fletcher. The ultimate question must be not so much whether the respective awards considered in isolation are acceptable but whether the overall award is proportionate to the totality of the suffering caused to the claimant. 24 Relationship between the seriousness of the conduct and the seriousness of the injury. It is natural for a tribunal, faced with the difficulty of assessing the additional injury specifically attributable to the aggravating conduct, to focus instead on the quality of that conduct, which is inherently easier to assess. This approach is not necessarily illegitimate: as a matter of broad common sense, the more heinous the conduct the greater the impact is likely to have been on the claimant’s feelings. Nevertheless it should be applied with caution, because a focus on the respondent’s conduct can too easily lead a tribunal into fixing compensation by reference to what it thinks is appropriate by way of punishment or in order to give vent to its indignation Tribunals should always bear in mind that the ultimate question is what additional distress was caused to this particular claimant, in the particular circumstances of this case, by the aggravating feature(s) in question, even if in practice the approach to fixing compensation for that distress has to be to some extent arbitrary or conventional[30]In Zaiwalla & Co v Walia [2002] IRLR 697, the respondent’s conduct of the defence attracted aggravated damages. The Tribunal had found: When she took tribunal proceedings a monumental amount of effort was put into defending those proceedings. That exercise was of the most inappropriate kind, attacking the applicant in relation to her personal standards of professional conduct and holding a series of threats over her head which would be daunting to any individual, let alone to someone about to embark on a legal career having difficulty obtaining a training contract. The defence of these proceedings was deliberately designed by the respondents to be intimidatory and cause the maximum unease and distress to the applicant. There is no other way of describing it. Interest[31]Interest is payable on any compensation we award for discrimination pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (SI 1996/2803). It is ordinarily calculated in accordance with those regulations, although the Tribunal does have a degree of discretion with regard to the ability to calculate interest by reference to periods other than those set out in the regulations where serious injustice would otherwise be caused. For injury to feelings awards, the interest is calculated from the date of discrimination. For other awards, interest is calculated from the midpoint between the date of discrimination and the date when compensation is calculated. The current applicable rate of interest is 8% per annum. Tax[32]When making an award of compensation, the tribunal must take account of tax payable on the various elements of the award. It may therefore be necessary, in accordance with the principles in British Transport Commission v Gourley [1955] 3 All ER 796, once the amount of the award has been calculated using net figures for earnings and pension loss to 'gross up' the award so as to ensure that the claimant is not left out of pocket when any tax required to be paid on the award has been paid. Tax is not payable on general damages for personal injury or injury to feelings awards relating to pre-termination discrimination. Submissions[33]We received written submissions and detailed oral submissions from both parties and we have considered these with care. We refer to them in our Conclusions only insofar as is necessary to explain our reasoning. Conclusions Issue: What is the percentage chance that the Claimant would have been promoted to the Head of Markets role had her application been fairly considered by Stephan Niermann absent sex discrimination?
Conclusions
[34]The question for the Tribunal was what were the claimant’s chances of being appointed to the Head of Markets role had she been fairly considered for it. The claimant was arguing that she had an 80% chance and the respondent that she had a 25% chance of appointment.[35]We had to carefully consider the findings of fact we made at the liability stage and the evidence we heard. We bore in mind also that the Tayler Tribunal had rejected the claimant’s claim that she should automatically have been appointed to the Head of Market role.[36]The following paragraphs from the Reasons for the liability judgment were particularly relevant to our deliberations: 70. Between 12 and 31 May 2015, the head of markets role was advertised on the respondent’s internal job board.72. The requirements for the role were said to be: - University degree or similar or adequate bank professional training - Proven experience in Compliance and the Finance Industry - Detailed knowledge and understanding of the local regulatory framework - Understanding of regulatory frameworks within different jurisdictions (especially German) is an asset - Broad knowledge and understanding of investment banking products - Experience in dealing with regulators, an existing network is an asset - Strong interpersonal and communication skills - Experience of managing a team73. Dr Niermann was leading the recruitment process. He said that the role was advertised internally and externally at what appeared to be the same time. He said the key criteria he was looking for from candidates were: - strong leadership and management experience; Sufficient experience across the different business areas to effectively manage the team.74. Dr Niermann said that certainly by the time of the first round of interviews, he had come to the view that leadership and management skills were the most important criterion. This was because the team was divided and did not work well together. In part this appears to have been a function of the way the team was structured and organised and in part his perception that there were tensions between individuals in the team.[37]Elsewhere in the Reasons we made findings about Dr Niermann’s perception about tensions in the team:190. Dr Niermann also described Mr Whittern as ‘innocuous’ and the claimant and Ms von Pickartz as very divisive personalities. He said that was another reason why he appointed Mr Whittern. Did we accept that Dr Niermann genuinely believed the claimant was contributing to a toxic atmosphere in the team, that that view was untainted by sex and that it was the real reason for this and other decisions?191. Part of this perception of Dr Niermann was said to have arisen from the claimant’s relationship with Mr Jooma, as to which he seems to have primarily been aware of the appraisal issue. We note that Dr Niermann appears to have concluded that the issue with Mr Jooma arose from fault on the claimant’s side. He had not investigated the issue at all. Similarly Ms von Pickartz is seen to be a problem, in circumstances where there was no investigation of the matters she had raised relating to Mr Jooma.192. In isolation, we might have concluded that Dr Niermann had a tendency to believe the more senior person to be in the right (in this case Mr Jooma), but, taken together with other matters, we concluded that we were not satisfied that the claimant and Ms von Pickartz’s sex had not played a role in Dr Niermann’s perception that they were the problem and not Mr Jooma.193. These matters included the fact that once Mr Jooma was out of the way, even on Mr Whittern’s evidence, there was not an ongoing issue in the team until Dr Niermann appointed Mr Whittern as point person. Also of significance to us was what we found to be the incorrect assertion by Dr Niermann in evidence that Ms von Pickartz and the claimant were lobbying Dr Niermann daily for the head of markets role. … 207. It was clear to us that one of the reasons Dr Niermann looked externally was the perception about there being unfortunate politics within the team including a perception of the claimant as being a divisive personality. As time wore on, we concluded that there were tensions in the team created by the appointment of Mr Whittern as acting head and the obfuscation around that appointment. That appointment we have found to have been discriminatory. 208. The perception of the claimant as ‘divisive’ was created in part we have concluded because of a perception about the difficulties with Mr Jooma being her fault, which we have already concluded was tainted by sex. 209. The structural problems in the team were not created by the claimant or any other internal candidate and there was no evidence from Dr Niermann as to why an internal candidate could not have addressed those issues.[38]We did not accept that, after the departure of Mr Jooma, there was evidence of toxicity or division in the team other than that caused by Dr Niermann’s discriminatory treatment of the claimant.[39]As to the process followed with the claimant and other internal candidates: On 7 July 2015, the claimant had her interview with Dr Niermann for the head of markets role. No notes of the interview were produced nor was an interview assessment form. Asked about these documents, Dr Niermann said, ‘I can’t recall that now’ , ‘I can’t recall and can’t exclude them either’. We concluded that no notes were taken and the designated form was not used for this or any other interviews held by Dr Niermann for this position.80. Dr Niermann said that in terms of how decisions were made about the internal candidates, he had discussions with Mr D Rock, who also interviewed the internal candidates, and they came to conclusions in those discussions.81. In the absence of notes, it was not clear to us how Dr Niermann would have remembered much about the interviews he had held by the time he spoke with Mr Rock some months later.82. The claimant said her interview with Dr Niermann lasted ten to fifteen minutes; Dr Niermann could not recall how long the interview as and we accepted the claimant’s evidence.83. Dr Niermann did not carry out any sort of assessment against criteria or any scoring. Although he said that the respondent’s policies had been followed and there was close coordination with HR, it was clear he had not followed the respondent’s recruitment policy, in particular in relation to the use of the form, which would have guided him to carry out a competency based assessment[40]The views of Mr Walsh, who interviewed and selected the external candidate appointed to the Head of Markets role, were relevant:115. Mr Walsh had a discussion with Dr Niermann about the appointment to the head of markets role. Dr Niermann told Mr Walsh that all three of the vice presidents in the team had applied for the role. Mr Walsh had not been asked to interview any of the internal candidates but he gave Dr Niermann his views He said that he thought that the claimant was the best candidate of the three. The claimant communicated with him in a clear and direct style and she had a good grasp of compliance issues generally. He did not feel that Mr Whittern communicated as well and found him slightly nervous; he felt that Ms von Pickartz was a divisive personality. Dr Niermann told Mr Walsh that he did not think any of the three internal candidates was suitable.116. Mr Walsh confirmed in cross examination that he felt that the claimant was appointable to the head of markets role and that if Dr Niermann had agreed with that view the claimant would have been appointed. However, he also said that Mr Dyos had more management experience than the claimant and was the ‘the more suitable person to immediately take charge of the team and assert the ‘London view’ in a confident and competent way with senior external clients.’[41]We concluded that Mr Walsh would have had a good opportunity to assess the claimant’s suitability. He had been in post for the entirety of the claimant’s tenure with the respondent and had had good opportunities for observing her work. Dr Niermann himself clearly rated Mr Walsh’s judgement since he ultimately accepted his recommendation for an external appointee to the Head of Markets role. Although Mr Walsh did not as a matter of fact assess the internal candidates, he did assess the external candidates for the role. It seemed likely to the Tribunal that had Dr Niermann been seriously and fairly considering the internal candidate, Mr Walsh would have been involved in assessing the internal candidates. The best evidence we have as to what impression he would have formed had he interviewed them was the impression he had of their performance on the job, which he shared with Dr Niermann and the Tribunal.[42]The respondent’s own policies encouraged internal recruitment where possible. We concluded, that absent sex discrimination, Dr Niermann would not have looked externally until the internal candidates had been properly considered. A fair process would have involved assessing each against the competences required for the role at interviews where performance was properly noted on the respondent’s interview assessment forms. That process would likely have shown that the claimant (and possibly either or both of the other two candidates) were appointable, ie the chance that the claimant would not have been found to be appointable was so small we can properly disregard it. In those circumstances, and removing factors tainted by sex discrimination (such as the alleged toxicity in the team), we concluded that the chance that the respondent would have looked at external candidates is so small we can properly disregard it. We therefore did not have to consider what would have happened had the claimant been assessed against the external candidates.[43]We concluded, that had the internal candidates been considered prior to any external process commencing, the claimant would have been the favourite. The claimant was the longest serving of the three and she had been Mr Jooma’s deputy. Mr Walsh thought most highly of her.[44]Mr Whittern was not favoured by either Mr Rock or Mr Walsh. Dr Niermann suggested to the Tribunal that Mr Whittern had more management experience than the other candidates but there was no evidence he had properly assessed management experience at the time. His assertions about management experience and its relative importance seemed to the Tribunal to be evidence essentially designed to justify the unfair selection process which we found to be discriminatory rather than evidence on which we could rely in looking at what would have happened had there been no discrimination.[45]We considered that there was some prospect that Ms von Pickartz would have been appointed. The claimant had described her in evidence as ‘equally qualified’ for the role. The talent grid assessment on Ms von Pickartz had rated Ms von Pickartz as slightly higher than the claimant. We did not feel able to rely on the talent grid for 2016 as we could not be at all confident it was not affected by the discriminatory acts we found to have occurred. Both the claimant and Ms von Pickartz were considered to be good candidates by Mr Rock.[46]We considered that the claimant’s chances of being appointed to the Head of Markets role in the absence of sex discrimination were in the region of 60%. There was a 40% chance pf one of the other two internal candidates being appointed, with Ms von Pickartz more likely than Mr Whittern. Issue: Had the Claimant been successful in her application, on what date would the promotion have taken effect (“the start date”)?[47]The respondent suggested that the claimant would have been appointed to the role of Head of Markets, had she been appointed, from 6 November 2015, the date Mr Rock interviewed Mr Dyos. The reasoning was that the claimant was interviewed by Mr Rock in early October but external candidates were already being considered by that point and the respondent would not have halted those interviewed.[48]We have found that, absent discrimination, the respondent would not have progressed to considered the external candidates (or that the chance of that happening is so small that it can properly be disregarded) so we have to consider the situation on the basis of assessment of the internal candidates only.[49]The claimant was arguing for a date of 1 July 2015 but that date would have allowed almost no time for a fair process to have been conducted in respect of the internal candidates.[50]The claimant applied for the role in late June 2015. We have to consider what would have happened had there been fair interviews for all internal candidates which would have involved Dr Niermann and Mr Rock and/or Mr Walsh as well as someone from HR. Although in the circumstances which happened Mr Rock did not see the claimant until October 2015, those circumstances were that the respondent had already been looking at external candidates. Had Dr Niermann been seriously considering the internal candidates, we could see no reason why it would have taken so long for Mr Rock to interview them.[51]Allowing for two to three interviews to take place for all three internal candidates and the effect of the summer holiday period, our best estimate of when the decision would have been made, bearing in mind the various things which would have needed to happen to complete the process, was that it would have been taken in the course of September 2015 with an appointment date of 1 October 2015. Issue Had the Claimant been successful in her application, how much more would she have earned (by way of salary, bonus and pension) in the Head of Markets Compliance role than she earned in her actual role?[52]The claimant’s approach was to say that she would have been employed on the same salary as Mr Dyos but have been entitled to a more favourable bonus. The respondent argued that the claimant would have been on a similar but not a better package than that of Mr Dyos and for convenience they had used Mr Dyos’ figures for salary and bonus.[53]The claimant said as to bonus that she had been entitled to a percentage of £40,000 in her existing role. This she said would have increased on promotion, and the figure she said it would have increased to was £57,000, which was the average of the target bonuses for L3 comparators set out in the 9 December 2015 email.[54]The respondent said in essence that its figures were based on the claimant receiving a comparable package to Mr Dyos. In fact it was unlikely that her basic salary would have been as high as £160,000, which would have been a significant increase on her own salary and that paid to Mr Jooma and would have been higher than those of the comparator employees. The 9 December 2015 email was evidence that the respondent had felt the need to offer a higher salary to secure Mr Dyos. That would not have been a factor in respect of an internal employee seeking a promotion. Looking at the comparators, it could be seen that the overall packages were comparable, with different weightings as between salary and bonus.[55]We accepted the package approach was appropriate. We considered that the claimant would have been on a similar package to that of Mr Dyos. We could see no reason why she would have been on a higher overall package than Mr Dyos or the L3 comparators. The respondent’s approach of weighting the package as Mr Dyos’ was, more towards salary than bonus, in fact worked in the claimant’s favour because more of the package was certain.[56]The claimant accepted that the appropriate way to work out bonus payments was to look at the percentage of target achieved by Mr Dyos in each relevant year. Because we have concluded that the right approach to the target bonus is to assume the same target bonus as Mr Dyos had, the result is that we assess compensation on the basis that the claimant would have had the same bonus as Mr Dyos received in each relevant year.[57]The situation in respect of pension seemed to us to be different. In the email justifying the offer made to Mr Dyos, no reference was made as to the pension implications of each package. There was no suggestion, for example, that Mr Dyos should receive more salary and bonus than someone who had qualified for increased pension provision because of their longer service in the bank. The claimant would not of course have lost her entitlement to have pension benefits based on the more favourable options available to employees with more than two years’ service. The respondent’s argument was in effect that she should be credited with Mr Dyos’ pension payments because she would have received a similar package to him, inclusive of pension entitlement.[58]We concluded that we should make an award based on the claimant’s accrued entitlements to pension as applied to a salary and bonus package equivalent to that of Mr Dyos. There was no evidence that we could see to suggest that the respondent would have taken into account the claimant’s pension position in determining her salary and target bonus had she been appointed to the Head of Markets role. Issue: What award should be made in respect of injury to feelings - what is the appropriate Vento band?[59]We have to be very careful in this case to avoid double counting. The claimant’s second set of proceedings, which have yet to be determined, concern claims from 2018 onwards culminating in the claimant’s dismissal. It is clear that these events, whether unlawful or not, were significantly distressing to the claimant and that her mental health deteriorated during this latter period. Personal injury damages are claimed in those proceedings but not in these.[60]We therefore have to undertake the difficult task of assessing the extent to which it was the undoubtedly serious matters that we and the Tayler Tribunal have found proven which have had an ongoing and serious effect on the claimant as opposed to subsequent matters or the contemporaneous matters which were not found to amount to unlawful discrimination[61]We had regard in particular to the following features: - The fact that the matters we found represented a very significant setback for the claimant in her career; - The very significant detriment to a woman newly back from maternity leave of finding that much of her role had been handed over to a more junior employee and not returned to her; - The compounding of the claimant’s distress caused by the denials by Dr Niermann that Mr Whittern had been advantaged, which she described as ‘gaslighting’.[62]The claimant said that the appropriate figure was at the top end of the top band of Vento. The respondent said that it was towards the top of the middle band.[63]We asked the parties to make any representation they wished on the quantum reports for injury to feelings for sex and maternity discrimination in Harvey and we sense checked our own impressions against those reports.[64]Awards in the top band tended to be made where there was significant ongoing psychological distress. In a number of the cases the discrimination had effectively been career-ending. Awards in the upper reaches of the middle band tended to be made where, as here, discrimination had gone on for a sustained period of time and had serious effects but not such farreaching and devastating consequences as in cases in the upper band. We considered that the serious effects on the claimant both in relation to her career and her personal life, particularly as a new mother, put this firmly at the top of the middle band but the matters before us on their own did not take it into the upper band.[65]We concluded that the appropriate award for injury to feelings was £25,000. Issue: Should an award of aggravated damages be made? If so, what is the appropriate sum?[66]We considered various features of the conduct of proceedings which the claimant said were aggravating, looking at the various types of aggravating feature set out in Shaw.[67]Were the acts of discrimination themselves committed in a ‘high-handed, malicious, insulting or oppressive way’? Neither we nor the Tayler Tribunal made any findings which expressly suggested that this was the case and nor did we or the Tayler Tribunal find that the motive was ‘evidently based on prejudice or animosity’ or was ‘spiteful, vindictive or intended to wound’.[68]Ms Banton’s submissions under this head focused on the respondent’s conduct of the proceedings and we considered carefully the various matters she raised.[69]She pointed to the fact that the respondent had applied to strike out the claimant’s claims and for deposit orders. Some of the claims were withdrawn after those applications and an application for costs was made by the claimant and refused. That suggests that the Judge at that preliminary hearing did not consider that the application had been unreasonable in the required sense.[70]It was submitted by Ms Banton that Dr Niermann had been misleading at the hearing in front of us and that the respondent had continued to defend the claims in the face of contemporaneous documents which contradicted the respondent’s case.[71]The situation was that the respondent had been successful on a number of grounds of appeal and the matter had been remitted to the Employment Tribunal.[72]Dr Niermann had explanations for discrepancies between his evidence and the documentary evidence. The Tribunal ultimately rejected those explanations but the case was not unarguable and we concluded it was not an aggravating feature that the respondent continued to defend the claims after its successful appeal. Something more than pursuing a runnable defence is required; there was nothing akin to the behaviour in Zaiwalla & Co v Walia.[73]The claimant also pointed to the appeal against the Tayler Tribunal’s decision and the appeal against this Tribunal’s decision on liability as aggravating features. The first appeal was of course successful and it is certainly not for this Tribunal to characterise an as yet undetermined appeal against our Judgment as unreasonable.[74]Ms Banton also pointed to the fact that the respondent had sought to argue that the claimant had failed to mitigate her loss by not seeking an equivalent role to that of Head of Markets outside of the respondent bank.[75]At a case management preliminary hearing, I had given the respondent leave to instruct an employment consultant to provide evidence relevant to this issue. Although I recognised the mitigation argument might have difficulties, it did not seem to me to be unarguable, particularly in respect of the period after the Tayler Tribunal liability decision. In those circumstances, we cannot conclude that the argument or the commissioning of that report amount to aggravating conduct. The report and answers to questions posed to the employment consultant ultimately did not support the respondent’s argument and the mitigation issue was not pursued. That was the reasonable course for the respondent to take in the circumstances and not an aggravating feature.[76]The claimant pointed to reports in the press which picked up aspects of the respondent’s defence which criticised the claimant. We could not lay responsibility for the press reports at the respondent’s door. If the defence itself was not an aggravating feature, nor was the mere repetition of aspects of the defence in the press.[77]The claimants also pointed to the respondent’s failure to offer her an apology but this seemed to us to be simply a side effect of the fact that the claims continued to be defended rather than an aggravating feature.[78]We could find no aggravating features and did not make an award of aggravated damages. Issues: TRAINING/MENTORING/PSYCHOTHERAPY 6. Is the Claimant entitled to pursue these losses, given that they have been pleaded as part of her second claim? 7. Do the losses claimed flow from the acts found to be unlawful? 8. Were the claimed sums incurred? 9. Were the costs reasonably incurred and reasonable in amount? Psychotherapy[79]We had no expert evidence which tied the conditions which were said to necessitate this treatment to the acts of discrimination found by this Tribunal and the Tayler Tribunal as opposed to subsequent matters. At least as a matter of chronology, the claimant’s mental health seems to have worsened considerably once the further acts of which she complained in the second set of proceedings had begun to occur. The claimant started being treated by a psychotherapist over a year after her dismissal and four to five years after the various acts of discrimination the subject of these proceedings.[80]We were accordingly not satisfied that the need for psychotherapy arose from the acts of discrimination in these proceedings and do not make any award under this head Training / mentoring[81]The claimant in essence was arguing for sums to be paid for training in lieu of the recommendations made by the Tayler Tribunal for the claimant to receive mentoring and training from the respondent. Those were no longer recommendations which could sensibly be made since the clamant was no longer employed by the respondent.[82]In principle we could not see why in an appropriate case a claimant who has not been able to develop and/or maintain particular skills could not be compensated by training which would remedy the deficit. That is a separate and distinct type of loss from the financial loss sustained as a result of not being appointed to the role in which the experience / skills would have been gained.[83]However, in this case we received no specific evidence from the claimant as to what skills she did not obtain or develop as a result of not being appointed to the Head of Markets role or why the courses she was seeking to pursue would be suitable to address that skills gap. We accept in general terms that a person appointed to a managerial role will gain some managerial experience and skills but we concluded that more was required to identify particular skills and evidence how those would be addressed by particular training courses. The burden of course is on the claimant to establish the loss and to demonstrate why the courses would compensate for that loss and we concluded that she had not satisfied us on those points. Issues10. Should the Tribunal award interest on any sums awarded pursuant to r.2 Employment Tribunals (Interests on Awards in Discrimination Cases) Regs 1996?11. If so, for what period or periods? Would awarding interest in accordance with r.6(1)-(2) cause a serious injustice? If so, for what alternative period or periods should interest be awarded?[84]The respondent sought to argue that either no interest or a reduced rate of interest should be awarded on two bases: a) the Judgments Act rate of 8% was uncommercial given that the base rate had been below 1% from the dates of breach until May 2022. The claimant would be over-compensated for being kept out of her money at such a rate, b) The claimant would receive a windfall because of the significant period between contravention and calculation, during some of which the respondent was successfully appealing to the EAT, during some of which the claimant was unsuccessfully appealing to the Court of Appeal and during some of which the claimant allegedly was not taking steps to progress the claim.[85]As to the last period, which is part coincided with the commencement of the pandemic, the claimant said that she had been unsuccessfully contacting the Tribunal to progress the claim. There was no evidence before us to gainsay that account.[86]It seemed to us that the respondent’s argument that the Judgments Act rate is better than the rate of return the claimant would have received in an interest bearing account could apply in any case. We did not consider that this was the correct way to look at the matter. There are any number of ways in which a person might use or invest money which would have different rates of return. Conversely a person who does not have money they otherwise should have may have costs including interest on loans or overdrafts they would not otherwise have. The adoption of the Judgments Act rate seems to us to recognise those underlying differences without requiring a Tribunal to investigate and decide in any individual case whether a claimant would have pursued more favourable investments or has in fact lost further money on loans.[87]It did not seem to us that the discretion as to the period during which interest may be awarded was intended to be used in lieu of any discretion to change the rate or that it could properly be so used.[88]It also did not seem to us that it was appropriate to leave out of account periods when appeals were underway. It was not the claimant’s fault that the Tayler Tribunal erred in law in determining her ultimately successful claims. The net result of those errors was she was kept out of her money for a further period.[89]We accordingly could find no good reason not to award interest on the financial losses from the mid point between 1 October 2015 and the date of calculation. 89. We took into account however in looking at the appropriate period for interest to be awarded on injury to feelings the point made by the respondent that the matters which caused the injured feelings occurred over an extended period of time with the claimant’s maternity leave intervening between the earlier and later acts. It seemed to us that we could fairly reflect that fact by taking a mid point between the date when the claimant might have been appointed to the Head of Markets role on our findings (1 October 2015) and the date when she returned from maternity leave (5 September 2016) and began to experience the significant detriment in relation to her role found by the Tayler Tribunal. Grossing up[90]The figures in the Schedules are gross figures and the parties agreed that no further grossing up was required to take account of tax to be paid by the claimant on the figures. Calculations[91]The parties’ agreed figure for total financial losses on the basis of a 1 October 2015 start date and the findings we have made as to the salary, bonus and pension the claimant would have received had she been appointed to the head of Markets Role was £336,082.24.[92]The financial loss the claimant sustained is therefore 60% x £336,082.24 = £201,650.55.[93]Interest is awarded on those financial losses from the mid point between 1 October 2015 and 10 March 2023 (20 June 2019) at the rate of 8% per annum. Interest is awarded for 1359 days / 365 x 8 % = 29.79%. Interest on £201,650.55 = £60,071.70.[94]Interest on the injury to feelings award runs from the midpoint between 1 October 2016 and 5 September 2016 which is 18 March 2016. Interested is awarded for 2548 days / 365 x 8% = 55.85%. Interest on £25,000 is £13,962.50.[96]The total award is £201,650.55 + £60,071.70 + £25,000 + £13,962.50 = £300, 684.75.
Conclusions
[1]The claimant seeks to reargue this matter. For the avoidance of doubt, in selecting the period, the Tribunal had not lost sight of the fact that some of the acts of discrimination took place earlier than 1 October 2015. The midpoint selected was intended to fairly reflect the fact that the acts of discrimination took place over a period and the injury to the claimant’s feelings would have increased with additional acts of discrimination. Awarding interest as if the injury to feelings was complete at some earlier date would not have been just and equitable. The decision not to award aggravated damages Case Number: 2207126/2017[2]The claimant seeks to reargue this matter. By way of clarification, when considering the findings made at the liability stage, we had regard to our findings on the issues which had been remitted and to the Tayler Tribunal’s findings on those issues where its findings were undisturbed by the appeals. The reference at paragraph 67 of our Reasons is a reference to the Tayler Tribunal’s findings at the liability stage. We were not bound by the Tayler Tribunal’s findings on remedy. The decision not to award sums claimed for training courses[3]The claimant seeks to reargue her claim for sums for training. The claimant did not satisfy us on the basis of the evidence she put forward, even taken at its highest and unchallenged in cross examination, that these courses would compensate her for losses incurred as a result of the unlawful discrimination.[4]For these reasons, there is no reasonable prospect of the original decision being varied or revoked.