Ms S Khan v SN Estates Property Services Ltd and Mr M Miah: 2207611/2017

EMPLOYMENT TRIBUNALS

Case No 2207611/2017

Between

Ms S KhanClaimant

SN Estates Property Services Ltd and Mr M MiahRespondent

Before

Employment Judge Elliott

In person for claimant

Mr R Aireton (instructed by solicitor) for respondent

Date 8 December 2020

JUDGMENT

[1]By consent the respondents shall pay to the claimant one week’s notice pay in the agreed sum of £374.15.

[2]The unanimous Judgment of the Tribunal is that the claim succeeds on on issues 1, 2, 3, 5, 6, 10 and 14 on race related harassment and on issues 4 and 10 on gender related harassment and proceed to a remedy hearing.

[3]The claims on issues 7, 8, 9, 11, 12 and 13 fail and are dismissed.

[4]The claim for holiday pay succeeds for the statutory entitlement under the Working Time Regulations 1998. By consent the respondents shall pay to the claimant the sum of £771.71.

REASONS

Conclusions

[1]This decision was delivered orally on 2 November 2018. The claimant requested written reasons.

[2]By a claim form presented on 4 November 2017 the claimant Ms Subeena Khan claims race discrimination put as either harassment or in the alternative direct discrimination, sexual harassment and constructive unfair dismissal.

[3]The claimant worked for the first respondent in administration and accounts from 6 March 2017 to 7 August 2017. She does not have the right to claim ordinary unfair dismissal because her period of service was for less than two years.

[4]The first respondent is an estate agency managing real estate and property. The office is in Camden, London NW1.

[5]The claimant had raised at her second preliminary hearing on 29 August 2018 that she wished to have a screen to separate her from the second respondent. This was afforded to the claimant when she raised it with the tribunal on day 1. From day 2 when the claimant was represented by her partner Mr Khwaja, she no longer required the screen.

The issues

[6]The issues were identified at a preliminary hearing before Employment Judge Snelson on 29 January 2018. The issues were further considered and amended at a preliminary hearing before Employment Judge Norris on 29 August 2018. The issues were confirmed with the parties that start of this hearing as follows:

[7]There are 14 allegations put primarily as racial harassment and in the alternative is direct discrimination. They are: April 2017: Paki comments

[2]April 2017: Paki comments about the claimant’s fiancé May 2017: comments about “stingy Paki’s”

[4]May 2017: Kamini comments – also relied upon as harassment related to sex

[5]June 2017: threats etc – “when will you Paki’s learn” June 2017: small box of sweets episode June 2017: aggression over hospital appointment

[8]June 2017: humiliating treatment over future plans

[9]June 2017: comments about the claimant’s mother’s prescription

[10]5 August 2017: instruction to sack staff member, “Paki bitch” remark - also relied upon as harassment related to sex 6 August 2017: “not good enough” comment

[12]August 2017: generally not allowing the claimant to take holiday

[13]August 2017: requiring the claimant to run petty errands

[14]7 August 2017: constructive dismissal 8. At the preliminary hearing on 29 January 2018 Judge Snelson discussed with the claimant that the alleged constructive dismissal could not of itself stand as an act of harassment but he accepted that the acts that provoked the resignation certainly could. 9. It appeared that there was an issue as to whether the claimant resigned or was dismissed. On the afternoon of day 1 just before the commencement of the evidence, the respondent accepted that it dismissed the claimant in an email on 7 August 2017 at 15:41 (bundle page 46). This preceded the resignation email six hours later on the same day (page 55). We informed the claimant that she had an admission from the respondent of dismissal. 10. There are claims for notice pay and holiday pay. The notice pay claim is for one week’s pay and the holiday pay was originally calculated in the sum of £579.02. Judge Snelson gave leave for the sums to be properly calculated. 11. At the hearing before Judge Norris on 29 August 2018 the second respondent was added as a party to the proceedings. The claimant was given leave to amend to add to allegations 4 and 10 above, as harassment related to sex. 12. On the Order of Judge Norris the hearing was split between liability and remedy to allow the claimant to produce a further witness statement. This hearing was therefore not to deal with remedy (see paragraph 16 of the Case Management Summary of 29 August 2018). The respondents’ solicitor raised with the tribunal that remedy matters had been covered in the claimant’s witness statement. We said that for the purposes of section 26 it was necessary for us to have some evidence from the claimant of the effect she said the alleged discrimination had on her but that we would not deal with remedy matters at this hearing and the respondents need not cross-examine on matters which went to remedy alone. 13. The claimant told us that she had 270 cross-examination questions for the second respondent which were to be put by her partner Mr Khwaja. We asked the claimant to make sure that cross-examination was confined to the matters upon which we had to make a decision which were those matters set out in the case management orders. It was not necessary for there to be cross-examination on anything else. The claimant’s application to introduce an audio recording 14. There was an agreed transcript of the claimant’s audio recording at pages 49-53 of the bundle. The respondents’ position was that as the transcript was agreed, it was not necessary for us to hear the recording. The claimant said that without hearing the recording we would not hear the tone of the conversation. We therefore gave the claimant leave to play us an extract from the recording and she could choose that extract. We gave her leave to play three minutes to demonstrate to us the tone.

[15]The three minute recording was played to us on day 2 at the start of the second respondent’s evidence. Witnesses and documents

[16]The tribunal heard from the claimant and two further witnesses her partner Mr Shakil Khwaja and a former colleague Ms Amina El-Imam El-Alaoui.

[17]For the respondents the tribunal heard from five witnesses:(i) the second respondent,

(ii) Mr Irfan Mirza a contractor who works for the respondents,

(iii) Mr Elod Zsigmond and

(iv) Mr Faizal Ahmed who are both senior negotiators and

(v) Ms Adamma Jade Nwamma who worked as a trainee property consultant.

[18]There was a bundle of documents of about 120 pages. Additional documents were introduced as set out below.

[19]We had a written submission from the respondent. Both parties gave oral submissions. All submissions and authorities referred to were fully considered, whether or not expressly referred to below. Additional witness for the respondent

[20]The respondent sought leave to include witness, Ms Adamma Jade Nwamma at short notice. Ms Nwamma worked for the respondent from June to October 2017. Her statement was served on the claimant on Friday afternoon 26 October 2018. Statements had otherwise been exchanged on 10 October 2018.

[21]The respondents gave the reason for the delay as the claimant having been given leave to add a claim for harassment related to sex and difficulties encountered by the second respondent in giving instructions. The second respondent travelled overseas from 20 to 28 September 2018.

[22]Whilst we considered that the respondents could have served this statement earlier than the afternoon of the last working day before the hearing, we also took account of the brevity of the statement, eleven paragraphs, many paragraphs only 1 sentence in length and that this witness would not be called until later in the week which would give the claimant time to consider and prepare any cross-examination. We gave leave for the respondents to call Ms Nwamma. Additional documents

[23]On day 1 both sides wished to add additional documents. We urged them to seek to reach agreement on those documents during our reading time in the morning of day 1 and to consider the relevance of the documents to the issues we had to determine. They were not able to reach agreement on all but one of the documents.

[24]The claimant wished to include the first respondent’s Staff Handbook. The respondents agreed to its inclusion.

[25]Both sides had documents that they said had only just occurred to them to include. As this was the reason on both sides, we admitted the documents where that explanation was given. We admitted pages 121-125. For the respondents these were documents R1-R4. For the claimant it was an exchange of messages with Ms Nwamma. The claimant wished to include photographs of employees who joined after she left. We did not give leave to admit these as we took the view they did not assist us with any of the issues we had to determine. There were also some further print outs from the first respondent’s website and the claimant agreed that she could deal with the matter in cross examination so we did not give leave to admit the pages. There was a document printed from the internet showing that a vaping shop over the road from the first respondent’s office was “permanently closed”. The respondents’ solicitor said that this did not help us with anything as it did not show the date on which the premises closed. As the respondents’ view was that it did not help with anything we saw no prejudice to the respondents in agreeing to admit it. Findings of fact

[26]The claimant started work at the first respondent property company on 6 March 2017 working in administration and accounts. She describes herself as from a Pakistani ethnic background (statement paragraph 1). The first respondent is a small business employing about 8 or 9 people.

[27]The second respondent is a director and owner of the first respondent. He describes his ethnic origin as from East Pakistan, which became Bangladesh some decades ago. He was born in the UK (statement paragraph 3).

[28]The second respondent said in evidence (statement paragraph 11) that the claimant was the only person from a Pakistani origin in the office team. It is not in dispute that Mr Mirzah is also of Pakistani origin (his statement paragraph 3). He is a contractor and not part of the office team. Mr Mirzah agreed that the term “Paki” was offensive, although acceptable in some communities. He personally finds it an offensive term and said he does not use it.

[29]We find, based on the agreed transcript referred to in more detail below, that the second respondent uses the term “Paki”. It is clearly shown in the transcript as a term he used. We find based on his witness evidence that he is fully aware that it is offensive terminology.

[30]The claimant found that in addition to her role in administration and accounts she took on other duties such as interviewing, office management, shortlisting candidates and training new staff. The claimant did not feel ready to take on these job roles but she found the second respondent unapproachable and angry.

[31]The claimant describes the second respondent as being from a Bangladeshi ethnic background. The claimant played to the tribunal a 3 minute extract from the audio recording of the phone call on 5 August 2017 in which the second respondent was shouting and sounded very angry and aggressive. We accept the claimant’s evidence and find that the second respondent was unapproachable and angry. As we heard on the recording and read in the transcript, the second respondent considers that even if he is wrong, he is still right. Issues 1 and 2

[32]The claimant’s case is that in April 2017 the second respondent called her into the office and began talking about personal matters. He showed her photographs of his daughter and spoke of his disappointment that his daughter had married a “Paki guy”.

[33]In April 2017 the claimant mentioned to the second respondent that her fiance was meeting her after work. Her case is that 10 minutes before she was about to finish work the second respondent sent her to run a personal errand for him which involved going to Camden Town Market to pick up some vaping liquid. The claimant’s case is when she was on her way back to the office she received a phone call from the second respondent saying “is that the guy you’re going to marry, the small little dude. He is an idiot, is he a Paki too?” The claimant asked him not to talk about her fiance like that and felt offended by the racist term he used. We find that the second respondent used the term “Paki” and was offensive about the claimant’s fiancé and this was upsetting and offensive to her.

[34]The claimant’s fiancé is Mr Khwaja who was both a witness and other than on day 1, acted as her representative. Mr Khwaja arrived at the respondents’ office towards the end of the day to meet the claimant who had gone to run the errand for vaping liquid for the second respondent. It was closing time at the office and as the claimant was not there, he wanted to know where she was. The second respondent’s evidence was that Mr Khwaja was shouting in the office wanting to know where the claimant was.

[35]The second respondent made it clear that he did not like the claimant carrying out personal errands during work time and we make further findings on this below in relation to issue 9 below. We find on a balance of probabilities that the second respondent had sent the claimant to pick up the vaping liquid for himself. He had asked her late in the day, so it meant there was no easy explanation for Mr Khwaja as to where she was. We find on a balance of probabilities that Mr Khwaja arrived at approximately closing time. Although there was some conflicting evidence on this, we find that whatever the closing time was in April 2017, Mr Khwaja arrived shortly before closing.

[36]Mr Elod Zsigmond is a Senior Negotiator with the first respondent and he was present when Mr Khwaja arrived. Although Mr Zsigmond’s witness statement (paragraph 4) said that Mr Khwaja was shouting, in cross examination Mr Zsigmond said that Mr Khwaja was not shouting. Mr Ahmed also confirmed that Mr Khwaja was not shouting. This is consistent with Mr Khwaja’s own evidence. We find that Mr Khwaja did not shout in the office.

The law

[37]The claimant’s case was that when she sat in her car during her lunch break the second respondent would join her asking her to take him to different places such as to Camden Town Market to get vaping equipment for his personal use. The second respondent denies this saying that the claimant parked her car about half a mile away from the office whereas his car was parked directly outside the office. His case is that he only ever used his own car and any assertion to the contrary was “absurd”.

[38]The second respondent admitted that if the claimant was going to get some vaping equipment for herself then he “may have” asked her to pick some up for him as well (his statement paragraph 32). He said that he never insisted. Mr Zsigmond was aware that the claimant went to pick up vaping liquid for the second respondent but did not know whether the second respondent had asked her to do this. Mr Zsigmond did not hear any conversation during which requests to pick up vaping liquid were made. As above, we find that given the second respondent did not approve of personal errands being run in work time, he asked her to run the errand for him of picking up vaping liquid. The claimant had no need to pick up vaping liquid for herself as she used to sell it herself and had a supplier.

[39]On issues 1 and 2 we find that the “Paki” comments were made. Issue 3

[40]The claimant’s case is that the second respondent would often come over to her desk to eat food. It was the practice in the office that everyone would bring in sweets and snacks for others to eat. The claimant’s case is that the second respondent said: “Subeena you are so stingy, I think all Pakistanis are like that”.

[41]We find that the second respondent uses the term “Paki” and that it is part of his vocabulary. We find on a balance of probabilities that the second respondent said that he said: “all Pakistanis are like that”. Issue 4 – “Kamini”

[42]The claimant’s case is that throughout her employment the second respondent would call her “Kamini” which she told the tribunal meant “bitch” in Urdu and was also used an adjective to describe women as voluptuous. The claimant said that Kamini in Hindi means “dog” and Kamini in Urdu means a girl who is a bitch, two-faced or inhumane. The claimant asked the second respondent to stop using this term as she found it insulting and told him it was bullying and harassment. She says that he responded: “oh shut up it suits you”. She says he made her the butt of his jokes.

Conclusions

[43]The claimant’s evidence was that Mr Ahmed called her this as well, because the second respondent had asked him to. The claimant and Mr Ahmed generally got on well at work. She said that she responded to both the second respondent and Mr Ahmed by saying: “I don’t call you names” to make it clear to them that she did not appreciate it. Mr Zsigmond heard Mr Ahmed but not the second respondent use the term “Kamini”. Mr Zsigmond does not speak Urdu, Hindi or Bengali. He did not know what the term Kamini meant until the day he gave his evidence to the tribunal.

[44]The respondents case was that calling the claimant Kamini was not offensive but a reference to a Hindi actress named Kamini Kaushal, popular in the 1940s and 1950s (bundle page 110). The second respondent agreed that one meaning of the word Kamini, in Bengali, was “sly” and in Hindi it meant “dog”. He told the tribunal that in Bengali the words for “dog” and “bitch” are the same. He speaks Bengali.

[45]The second respondent admitted that the word Kamini had a negative connotation in a language he speaks, as it means sly and could also mean dog or bitch. Mr Mirza is a contractor for the respondents. He does not speak Bengali but knew that Kamini was a “bad word” (statement paragraph 4). Mr Ahmed’s evidence on the point was inconsistent. In his witness statement he admitted to calling the claimant Kamini (paragraph 7) and said he used the term after the actress Kamini Kaushal and compared the claimant to the actress in terms of personality. In cross-examination he denied using the term Kamini. Mr Zsigmond heard Mr Ahmed use the term towards the claimant. We find that Mr Ahmed used the term towards the claimant.

[46]It was put to Mr Ahmed that he did not know of the actress Kamini Kaushal who is now aged about 92 and before his time. He said he was a Bollywood fan and knew of a lot of actresses who were before his time and gave some names. He was asked if he could name a film that Kumini Kaushal had been in. He could not.

[47]We find that Mr Ahmed and the second respondent called the claimant Kamini as a derogatory term meaning bitch. The second respondent did not shirk from calling the claimant a “Paki bitch” on 5 August 2017 as we read in the transcript. We find that this is what he meant when he called her Kamini. Both Mr Mirza and the second respondent are aware that it is a derogatory term and we find that Mr Ahmed knows this as well because he speaks Bengali. It is a term that was offensive to the claimant and we find on the balance of probabilities that she asked Mr Ahmed to stop calling her Kamini because she did not call him names. We find that the reference to the actress was an attempt to avoid the negative connotations of the name calling and we did not accept that explanation. It was related to the claimant’s gender and she was offended by it.

[48]This comment was also heard by Ms Amina El-Imam El-Alaoui who carried out some work experience for the respondents and also some part time work. She worked there for about a month and a half in total. She heard the second respondent, but not Mr Ahmed, call the claimant Kamini. The languages she speaks are English and Arabic. She had not heard the word Kamini before so she asked the claimant what it meant. She said that the claimant told her that it meant “bitch”.

[49]On issue 4 our finding is that both Mr Ahmed and the second respondent called the claimant Kamini as a derogatory term related to gender.

[50]It is not in dispute that at no time did the claimant raise a written grievance. As we find below, her partner sought a grievance meeting on her behalf.

[51]The claimant’s case is that on several occasions throughout her employment she requested holidays that that the second respondent would not allow but did so for other members of staff who were negotiators. He expected her to cover for the negotiators when they were absent. There was no evidence that she requested holiday. The claimant did not put forward any dates that were requested and refused.

[52]The effect of the second respondent’s comments began to affect the claimant and she was signed off work from 9 to 16 May 2017 for dizziness, tiredness and a fainting episode (sick note page 83). We noted that the claimant had written “stress” on the sicknote in handwriting but this was not the diagnosis of the doctor. Neither was it due to her hands going numb as also written on the sickness certificate. Issue 5 - threats

[53]In June 2017 the claimant said the second respondent became aggressive about work not being done properly and made threats about her job security. Her case is that he said: “why aren’t you all doing your jobs properly, do you want me to come and chop all your heads off, when will you Paki’s learn”. The claimant believed this was directed at her as she was the only Pakistani person in the office. The second respondent denied saying this and said it made no sense to him.

[54]As we have found above and below, this is terminology used by the second respondent and consistent with the aggressive style of language he uses. There was some inconsistency as to whether this was said in a phone call or in the office and/or whether it would have been overheard by others. The claimant’s evidence at paragraph 11 of her statement was that this happened on “many occasions” and therefore we find that on at least 1 occasion, whether on the phone or in person, the second respondent said “When will you Paki’s learn” and made aggressive comments about the consequences of not getting work done. We find on a balance of probabilities that the second respondent made this threatening comment and it was directed at the claimant being the one Pakistani person in the office.

[55]The witnesses (including the respondents’ witnesses) all gave us the impression that the second respondent could be volatile. Ms Nwamma described him as someone who would “rant”, Mr Zsigmond described him as someone who could “get a bit upset if things go wrong” and Mr Ahmed said (statement paragraph 16) that “Overall Mr Miah treats all of us equally”. We found the use of the word “overall” a qualifying statement which suggested to us that there were occasions when he did not. We are supported in this view by our findings on the audio recording and the agreed transcripts (pages 49-53 and 114).

[56]We find issue 5 proven, that the second respondent made threatening comments and on at least one occasion this was directed at the claimant and her race. Issue 6 – box of sweets

[57]In June 2017 the claimant brought some Indian sweets for everyone to share in the office because of a celebration in her family. Her case is that the respondent ate the whole lot saying: “why did you bring such a small box, tell your parents they’re stingy, you stingy Paki’s”.

[58]The second respondent agrees that the claimant brought in the sweets and offered some to him and he congratulated her on her family event. The claimant accepted that she offered sweets to other members of staff before the second respondent arrived in the office, so he could not have eaten all the sweets. We find that he did not eat all the sweets.

[59]We have found above that the second respondent uses the terminology “Pakis” in an offensive way and we found on issue 3 that he said “Subeena you are so stingy, I think all Pakistanis are like that”. The comment “why did you bring such a small box, tell your parents they’re stingy, you stingy Paki’s” is consistent with this and we find issue 6 proven on a balance of probabilities. Issue 7 – regarding hospital appointment

[60]In June 2017 the claimant had a hospital appointment and asked for time off so that she could attend. She was asked to show some confirmation of her appointment. The second respondent said it was his practice to ask for confirmation of hospital appointments and we accept this evidence and find that this was the practice. As this was a highly personal matter she did not wish to disclose the medical reason but was happy to show her appointment date. Her case is that the second respondent snatched the letter from her and read what was written and she says she was left in tears by his aggressive prying into this private information.

[61]The second respondent denied snatching the letter but admitted that he took the letter from the claimant. In cross-examination he admitted that he was busy doing different things in the open plan office, he wanted to see the letter and said that in amongst doing a number of things he “grabbed it” and the claimant “received it back”. He said that he did not understand medical terms and did not know what the appointment was for. We find that grabbing is more or less the same as snatching and we find that the second respondent did snatch the letter from the claimant.

[62]We do not condone the second respondent’s actions in grabbing the letter. This could have been handled more respectfully. Nevertheless, we find that this was not related to or because of the claimant’s race. We find that he would have behaved the same way in the same circumstances with another employee of a different race, seeking time off for a hospital appointment. Issue 8 – treatment over future plans

[63]Also in June 2017 the claimant’s case is that the second respondent began discussing with a colleague a different job role for herself and the discussion was carried out in Bengali so that she could not understand what was being said. The respondents’ case is that the claimant was not good at her job and this was discussed with her. She was offered a new role as a negotiator and office manager with a new contract.

[64]The second respondent was not happy with the claimant’s performance in her role and they had a discussion in the open plan office together with Mr Ahmed about whether the claimant could do a negotiator’s role. The claimant was interested in the role provided that she was not paid less than her existing administrator’s role.

[65]There was a dispute over whether the second respondent gave the claimant a new contract of employment for the proposed new role. The second respondent’s evidence was that he gave the claimant a new contract, but she did not return it to him. He said he did not keep a copy. The tribunal asked the second respondent how contracts were handled in the company. The respondents use an HR service which handles the contracts.

[66]We find that the second respondent did not give the claimant a new contract. We find it implausible that in handing over a new contract, no copy was kept. This is particularly so when the respondents use an HR service for this purpose and no copy contract was disclosed as produced by the HR service. We find that no contract was given to the claimant and the reason for this was because the terms as to pay had not been finalised and agreed.

[67]It was suggested by the respondents that the claimant had received some commission in connection with the negotiator role and in support of this relied upon a document at page 111. This showed two payments to the claimant one on 4 August 2017 in the sum of £70 marked EXP and the second on 3 August 2017 in the sum of £160 marked WAGE. We accept the claimant’s evidence and find that these payments were for expenses and underpaid wages respectively because the letters against the payments support this. We find that these were not payments of commission as no binding contract was entered into for the claimant to perform a negotiator’s role. Terms had not been agreed as to pay.

[68]On 2 August 2017 the claimant emailed the second respondent stating that her July pay appeared lower than usual and she asked for an opportunity to discuss why deductions were made (page 47). The second respondent replied that she was not able to do the job they hired her to do, everything was a mess and not a single thing had been organised within 3 to 4 months, she simply could not do it. He said that they had discussed her going forward as a negotiator and it was commission based. He replied discourteously saying: “we will talk tomorrow but if you don’t have the patience to wait then nothing I can do,”.

[69]The claimant’s own evidence (statement paragraph 14) was that she did not understand what was being said about her because it was in Bengali, a language she does not speak. We find that she could not find the discussion humiliating because she did not understand what was being said.

[70]We find that the second respondent and Mr Ahmed had a conversation in the office in Bengali and the claimant jumped to the conclusion that it was a humiliating discussion about herself. We cannot reach that finding and we can find no more than that the second respondent and Mr Ahmed had a discussion in the office in their common language. This was not because of the claimant’s race or related to her race. Issue 9 – mother’s prescription

[71]In July 2017 the claimant’s mother was unwell and asked the claimant to pick up some medication for her and for this reason the claimant ran late for work. The claimant’s case is that she called the second respondent to inform him and his response was “am I paying for your mum’s prescriptions, hurry up and get to work”.

[72]The second respondent said that she called him at about 9am saying that she was running a personal errand before work and would arrive late which the second respondent considered unacceptable. The second respondent’s case is that personal errands should be performed outside business hours and he would have treated any other employee running personal errands in work time in the same way. The second respondent accepted that the claimant mentioned a prescription and he said he told her that she could pick this up from the chemist opposite the office if it was urgent.

[73]The claimant’s start time was 9am. She accepted that she normally arrived in the office between 9am and 9:20. The second respondent usually arrived late morning.

[74]We find that the second respondent said “am I paying for your mum’s prescriptions, hurry up and get to work” because the claimant was running a personal errand in work time. As an employer he did not sanction this. We find that this was not related to or because of the claimant’s race. We find that he would have behaved the same way in the same circumstances with another employee of a different race, running late for work because he or she wanted to pick up a prescription for a relative. Issue 10 – the phone conversation of 5 August 2017

[75]On 5 August 2017 the claimant’s case is that the second respondent complained about not receiving bank account information for a colleague Ronita, who joined the first respondent’s employment on 26 June 2017 as an office administrator. The claimant said she sent the details and the second respondent said he did not receive them. This meant that Ronita’s wages were not paid on time. He laid the blame for this squarely at the claimant’s door.

[76]Later in the day on 5 August 2017 the claimant received a very angry phone call from the second respondent who told her to go out of the building and phone him so that no one in the office could hear the conversation. He was angry about the wages situation for Ronita and began shouting down the phone to her. The claimant was standing in the rain during the call.

[77]The second respondent initially instructed the claimant to “sack” Ronita and this was moderated to asking the claimant to ask Ronita if she “wanted the job or not”. He became abusive towards the claimant calling her a “F***ing Paki bitch”. He said: “you can’t even do your jobs properly you retards from all corners of the world”.

[78]We saw the agreed transcript of the recorded telephone conversation on 5 August 2017. In that transcript (bundle page 52) we saw that the second respondent called the claimant “you f***ing Paki bitch”. We find that he said this. The claimant immediately said: “don’t call me a bitch”. He also said “you are f***ing with me bitch”. She said he should call her when he had calmed down.

[79]We heard 3 minutes of audio from the 12 minute call. We found the second respondent to be loud, angry, aggressive, unpleasant, offensive and intimidating in tone. The claimant on the other hand was calm. The second respondent’s evidence was that he was upset over family matters and has never used such words before. Even if he was upset by family matters, this is not an excuse for verbal abuse related to race or gender.

[80]It is suggested on the respondents’ side that there was a particular relationship between the claimant and second respondent. It was put to her that that she fancied him and wanted to build a relationship outside work. The claimant often called him after office hours but we find that this was always on work related matters.

[81]The respondents relied upon text in the transcript (page 50) where the claimant said: “me and you, our ermm relationship/friendship or whatever it is or our relationship within the work environment….”. We find that the claimant said this in response to the preceding comment from the second respondent where he referred to “you people get close and friendly with me and become cocky on business related or ermm work related matters”. We find that the claimant and the second respondent were not personal friends and that the claimant’s comment was in response to his. The claimant was clear that she was talking about their relationship in the work environment.

[82]The second respondent said that the claimant contacted him to discuss her wedding arrangements, the music and what she should wear. The claimant denied this and said that she had plenty of friends and family with whom to discuss her wedding. We find on a balance of probabilities that the claimant did not discuss her wedding arrangements with the second respondent. He was her employer and someone who had been racially offensive towards her. We accepted her evidence that she has plenty of friends and family with whom to discuss her wedding.

[83]The second respondent’s evidence was that the claimant harassed him and that on one occasion she rang him at 12 midnight when he was in bed with his wife. He said “I honestly think the claimant may have liked me in the wrong way. I don’t know what it was, whether it was the money that she was attracted to, but she wouldn’t stop calling me. I felt harassed day and night.” He said it got so bad he had to block her on WhatsApp. There was some confusion as to whether he had blocked her or not.

[84]There was no evidence from the second respondent to support the contention that the claimant was calling and WhatsApp-ing at all hours or that he had blocked her. If there were messages from the claimant showing a particularly close relationship or friendship or a high number of calls, for example at midnight, these were disclosable. We did not have such messages or call records and this supports our finding.

[85]The claimant reported to the police at Wembley Police Station the offensive call she had received from the second respondent on 5 August. Her police witness statement was at page 64 given to the police on 10 August 2017.

[86]The second respondent was convicted of one offence of malicious communication under section 127(1) of the Communications Act 2003. He was fined £350 and ordered to pay compensation of £100 to the claimant. The Highbury Corner Magistrates Court found the offence racially aggravated (bundle page 68(a) email from Holborn Police Station Witness Care Unit dated 4 April 2018). The second respondent admits to pleading guilty at the Magistrates Court (statement paragraph 37).

[87]The second respondent agreed the content of the transcript. It is therefore not in dispute that he called the claimant a “f***ing Paki bitch” and that he said “you are f***ing with me bitch”.

[88]The second respondent’s case in the ET3 was that this argument did not take place because of the claimant’s race but because of a “difference of opinion” concerning Ronita (bundle page 28 paragraph 17).

[89]In witness evidence, (statement paragraph 26) the second respondent, in admitting the language he used in the telephone conversation, said he was completely furious and in his statement he apologised for the language he used. We find that there was no apology at the time and the apology has been given in witness evidence for the purposes of these proceedings. He now admits he lost his temper and agrees that it was not acceptable.

[90]On 6 August 2017 at about 9pm the claimant emailed the second respondent saying that she would not be able to come to work the following day because she was stressed and suffering from really bad migraines (page 54). We find that this was directly linked to the phone call on 5 August. The claimant made the decision to prepare her resignation letter and seek some clarity on her situation. At page 84 of the bundle we saw a medical certificate for the claimant signing her as unfit from 7 to 20 August 2017 for a “stress-related problem”. We find that the stress of dealing with the second respondent’s abusive rant on 5 August 2017 made her unwell.

[91]The claimant did not attend work on 7 August 2017. She said that the harassment continued throughout the morning as she received a number of phone calls and voicemails from the second respondent. One of these was a voicemail message from the second respondent at 10:28 hours in which the second respondent complained about the claimant not coming to work, accusing her of being unprofessional and creating a lot of havoc and the fact that she did not “care to share” the information that her colleague Ms Nwamma was also off sick. We saw transcript of that message at page 114, it was also agreed by the second respondent. This was not acceptable towards an employee who was off sick and we agree that it was of a harassing nature.

[92]The claimant asked her partner Mr Khwaja to speak to the second respondent on her behalf because she was feeling unwell. Mr Khwaja asked for a formal grievance meeting to discuss the second respondent’s behaviour towards the claimant. The second respondent refused this saying that he did not wish to discuss anything and told the claimant to stay clear of the office. He said he did not require her to work a weeks notice. The second respondent was rude, abusive and angry towards Mr Khwaja. The claimant heard this as she was with Mr Khwaja and the call was on speaker phone.

[93]On 7 August at 15:41 hours the first respondent dismissed the claimant by email. This is admitted. Later that day at 21:40 hours the claimant resigned by email to the second respondent (page 55). As she had already been dismissed, her employment was terminated by the dismissal and not by her resignation. On issue 14 we therefore find that there was an actual and not a constructive dismissal. On day 2 of the hearing the second respondent also admitted liability for one week’s notice pay. Issue 14 - dismissal

[94]The dismissal email of 7 August 2017 at 15:41 said as follows: Dear Subeena As discussed we agreed the salary of 17K basic and 10% commission on your new negotiator position effective first July, sadly after the call I received today on your behalf we have no choice but to issue you with one week’s notice from today, I kindly ask for the return of all company devices and papers.

[95]The reason given for dismissal was not the claimant’s performance, it was very squarely put as the phone call on her behalf. We find that the respondents were not just about to dismiss the claimant for poor performance because they wished to offer her a new role as a negotiator. The reason for dismissal is very clearly given in the 7 August 2017 email at 15:41 hours as the phone call received on her behalf. This was the phone call from Mr Khwaja asking for a formal grievance meeting because of the second respondent’s unacceptable behaviour. We find that the second respondent was angry that the claimant had dared to complain about his race and sexrelated harassment and because of this, he dismissed her.

[96]In the phone call of 5 August 2017, Mr Khwaja complained about the second respondent’s behaviour. It was the complaint about the second respondent’s harassing behaviour that caused the dismissal. It made the second respondent extremely angry saying to Mr Khwaja “you c***, I’ll come and break your face”. We find that in his anger at a complaint being made about his harassing behaviour, he committed a further act of harassment by dismissing the claimant. We find that it was because of the claimant’s race and gender, about which he had ranted in the 5 August 2017 call. Issue 11 – “not good enough” comment

[97]The claimant’s case is that on 6 August 2017 the claimant was told that she was “not good enough”. The claimant gave no evidence as to this. We therefore find that even if it was said, we have no evidence to support a finding that it was said in a manner that was related to her race or that it was said because of her race. Issue 12 - holidays

[98]The claimant’s evidence (statement paragraph 9) was that she would request holidays but that the second respondent would not approve them, yet approved holiday for other members of staff. The claimant was not challenged on this evidence. The claimant gave no evidence as to what holiday dates had been requested and refused. The second respondent’s evidence was that no requests for holiday were made.

[99]It was her unchallenged evidence that she took no holiday during her 5 month period of employment, other than taking the statutory Bank Holidays of which we find there were four: two at Easter and two in May 2017.

[100]Due to the absence of evidence as to holiday requests, the burden of proof did not pass to the respondents and we find that issue 12 is not proven as to direct race discrimination or harassment related to race. We make further findings below as to entitlement to holiday pay under the Working Time Regulations. Issue 13 - errands

[101]Based on our findings above we find that the second respondent sent the claimant on errands, but this was not because of or related to her race. Findings in relation to the reliability of witness evidence

[102]It was put to the claimant that because the second respondent’s daughter was married to a Pakistani man it was unlikely that he would be against those of Pakistani heritage. We do not accept that proposition. We saw from the documents that there were marital problems between the second respondent’s daughter and her husband and that there were criminal proceedings against the husband. The second respondent relied on this as one of the reasons why he was “wound up” and spoke to the claimant in the way that he did. The daughter had been a victim of domestic violence from her partner (document R1). We find that the second respondent’s daughter’s marriage to a Pakistani man does not support the case that he has a favourable view of those from Pakistan. It is the opposite.

[103]The claimant admitted that she sent messages to the second respondent after normal working hours. She said that the latest was probably at about 9pm to 10pm. She said that if contractors were asking her questions, she had to get the information from the second respondent. She did not know the answers herself. As we have found above, no phone records or copy messages were produced by the respondents to show the times and frequency of the contact from the claimant.

[104]It was also put to the claimant that she harassed the second respondent because she fancied him. The second respondent said in his witness statement that he did not know whether it was the money that she was attracted to (statement paragraph 7). This did not sit well with the fact that in the criminal proceedings he was ordered to pay her £100 and requested that this be done by instalments.

[105]We take into account in our findings the fact that the second respondent was convicted of a racially aggravated offence against the claimant in relation to the conversation that took place on 5 August 2017 (in these proceedings issue 10).

[106]We also reject the submission that if words were said they would have been overheard by others and thus were not said. We reject this for the following reasons. Just because the office is open plan does not mean that everyone is continually listening in to others’ conversations. The second respondent had his own office. Each person in the office had a job to do and would have been doing their job which means that the focus of their attention could not be on everyone else’s conversations.

[107]Mr Ahmed and Mr Zsigmond remain in the first respondent’s employment and this is their means of income. It is difficult for them to contradict the second respondent whom we have heard can behave in a very angry, intimidating and offensive manner sufficient to lead to a criminal conviction. He regards himself as right even when he is wrong. Mr Mirzah agreed that he has been a friend of the second respondent for over 20 years which gives him a sense of loyalty to the second respondent. He is a contractor who also earns an income from the respondents and he was not present in the office a great deal. Ms El Alaoui who is no longer in the first respondent’s employment and had no need to be loyal to them agrees that she heard the Kamini comment. Time limitation

[108]The claimant gave no evidence as to why she did not present her claim earlier than 4 November 2017. In submissions the claimant relied upon a continuing act. Holiday pay

[109]Our finding above is that the claimant took no holiday during her 5 month period of employment, other than taking the statutory Bank Holidays of which we find there were four: two at Easter and two in May 2017. Under the Working Time Regulations she is entitled to be paid on termination for her untaken annual leave. The law

[110]Direct discrimination is defined in section 13 of the Equality Act 2010 which provides that a person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[111]Very little direct discrimination today is overt or even deliberate. The guidance from the case law tells tribunals to look for indicators from a time before or after the particular decision which may demonstrate that an ostensibly fair-minded decision was, or equally was not, affected by racial bias – Anya v University of Oxford

2001 IRLR 377

CA.

[112]Section 23 of the Act provides that on a comparison of cases for the purposes of section 13, there must be no material difference between the circumstances relating to each case.

[113]Section 26 of the Equality Act 2010 defines harassment under the Act as follows: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (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; (c) whether it is reasonable for the conduct to have that effect.

[114]Harassment and direct discrimination are mutually exclusive – section 212(5) Equality Act 2010.

[115]In Richmond Pharmacology v Dhaliwal

2009 IRLR 336

the EAT set out a three step test for establishing whether harassment has occurred:(i) was there unwanted conduct;

(ii) did it have the purpose or effect of violating a person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person and

(iii) was it related to a protected characteristic? The EAT also said (Underhill P) that a respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. The EAT also said that it is important to have regard to all the relevant circumstances, including the context of the conduct in question.

[116]In Grant v HM Land Registry

2011 IRLR 748

the Court of Appeal said that when assessing the effect of a remark, the context in which it is given is highly material.

[117]In Bakkali v Greater Manchester Buses (South) Ltd

EAT/0176/17

the EAT (Slade J) said that where the same facts were relied upon for a claim of direct discrimination on grounds of race and a claim of harassment for conduct related to the same protected characteristic, an Employment Tribunal does not err in determining the harassment claim if they rely on their findings of fact on the direct discrimination claim provided they apply the correct “related to” test required by section 26 Equality Act 2010.

[118]Section 136 provides that 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.

[119]One of the leading authorities on the burden of proof in discrimination cases is Igen v Wong

2005 IRLR 258

. That case makes clear that at the first stage the Tribunal is to assume that there is no explanation for the facts proved by the claimant. Where such facts are proved, the burden passes to the respondent to prove that it did not discriminate.

[120]Bad treatment per se is not discriminatory; what needs to be shown is worse treatment than that given to a comparator - Bahl v Law Society

2004 IRLR 799

(CA).

[121]Lord Nicholls in Shamoon v Chief Constable of the RUC

2003 IRLR 285

said that sometimes the less favourable treatment issues cannot be resolved without at the same time deciding the reason-why issue. He suggested that Tribunals might avoid arid and confusing disputes about identification of the appropriate comparator by concentrating on why the claimant was treated as he was, and postponing the less favourable treatment question until after they have decided why the treatment was afforded.

[122]In Madarassy v Nomura International plc

2007 IRLR 246

it was held that the burden does not shift to the respondent simply on the claimant establishing a different in status or a difference in treatment. Such acts only indicate the possibility of discrimination. The phrase “could conclude” means that “a reasonable tribunal could properly conclude from all the evidence before it that there may have been discrimination”.

[123]In Hewage v Grampian Health Board

2012 IRLR 870

the Supreme Court endorsed the approach of the Court of Appeal in Igen Ltd v Wong and Madarassy v Nomura International plc. The judgment of Lord Hope in Hewage shows that it is important not to make too much of the role of the burden of proof provisions. They require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other

[124]The courts have given guidance on the drawing of inferences in discrimination cases. The Court of Appeal in Igen v Wong approved the principles set out by the EAT in Barton v Investec Securities Ltd

2003 IRLR 332

and that approach was further endorsed by the Supreme Court in Hewage. The guidance includes the principle that it is important to bear in mind in deciding whether the claimant has proved facts necessary to establish a prima facie case of discrimination, that it is unusual to find direct evidence of discrimination.

[125]The Court of Appeal in Ayodele v Citylink Ltd

2017 EWCA Civ 1913

recently confirmed that the line of authorities including Igen and Hewage remain good law and that the interpretation of the burden of proof by the EAT in Efobi v Royal Mail Group Ltd

EAT/0203/16

was wrong and should not be followed.

[126]Section 123 of the Equality Act 2010 provides that: (1) ………….proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

[127]This is a broader test than the reasonably practicable test found in the Employment Rights Act 1996. It is for the claimant to satisfy the tribunal that it is just and equitable to extend the time limit and the tribunal has a wide discretion. There is no presumption that the Tribunal should exercise that discretion in favour of the claimant.

[128]The leading case on whether an act of discrimination it to be treated as extending over a period is the decision of the Court of Appeal in Hendricks v Metropolitan Police Commissioner

2003 IRLR 96

. This makes it clear that the focus of inquiry must be not on whether there is something which can be characterised as a policy, rule, scheme, regime or practice, but rather on whether there was an ongoing situation or continuing state of affairs in which the group discriminated against (including the claimant) was treated less favourably.

[129]The burden is on the claimant to prove, either by direct evidence or inference, that the alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of an act extending over a period.

[130]In British Coal Corporation v Keeble

1997 IRLR 336

the EAT said that in considering the discretion to extend time: It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to –(a) the length of and reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.

[131]There is no presumption that a tribunal will exercise its discretion to extend time. It is the exception rather than the rule - see Robertson v Bexley Community Centre

2003 IRLR 434

[132]Under Regulation 13A of the Working Time Regulations 1998 a worker is entitled to a maximum of 28 days annual leave in each leave year. Under Regulation 13(9) it may not be paid in lieu except on termination of employment. Regulation 14 sets out the basis of calculation when employment is terminated during the course of the leave year. Conclusions

[133]The respondent admits dismissing the claimant on 7 August 2017 and admitted liability for one week’s notice pay which is awarded in the agreed sum of £374.15.

[134]The agreed transcript of the phone conversation on 5 August 2017 together with the recording was more than enough for us to find that the burden of proof passed to the respondent. Not only have we made our own findings on that phone call, it was also the subject of a conviction of the second respondent for a racially aggravated criminal offence. Issues that fail on the facts

[135]As we have found above, the following issues fail on their facts: Issues 7, 8, 9, 11, 12 and 13.

[136]The claimant succeeds on the facts on issues 1-6 inclusive, 10 and 14. They each succeed on harassment and not direct discrimination. Issue 4 succeeds on harassment related to sex alone, with the Kamini comment. We have found that it was an offensive term related to gender as it meant “bitch” and we find that it falls within the definition of harassment in section 26 Equality Act and it was reasonable for it to have that harassing effect on the claimant.

[137]We have found on issues 1, 2, 3, 5, 6 and 10 that they all involved comments about “Pakis” or made derogatory and offensive comments about those of Pakistani heritage. We have also found that the dismissal was an act of harassment directly related to the complaint about the second respondent’s harassing conduct in using the offensive terms and it was an act of racial harassment in itself.

[138]We find that the derogatory reference to “Paki’s” is harassment related to race and that the second respondent knew this when he made the comments. It met the definition of harassment in section 26 and it was reasonable for it to have that harassing effect on the claimant. We find the same for reasons related to gender, on issues 4 and 10, in calling the claimant a “bitch”. Her reaction as shown in the transcript, when she immediately told the second respondent not to call her a bitch, supports this.

[139]The claim therefore succeeds on race related harassment on issues 1, 2, 3, 5, 6 and 10 and on harassment related to gender on issues 4 and 10. Time limits

[140]The claimant is a litigant in person. She was assisted most capably by her partner Mr Khwaja but he has no legal training.

[141]The claimant relied upon the acts relied upon forming a continuing act of discrimination.

[142]The respondent accepts that issues 10 to 14 are within time and submits that issues 1 to 9 are out of time. The dates of Early Conciliation are from 18 August 2017 to 18 September 2017. This means that issues taking place in June 2017 which at their latest would end on 30 June 2017 are prima facie out of time.

[143]We have therefore considered whether any of the matters relied upon form a continuing act of discrimination. We have considered under Hendricks whether there was an ongoing situation or continuing state of affairs in which the claimant was treated less favourably and/or harassed.

[144]The consistent thread through the entirety of these matters is the second respondent who is the director and owner of the first respondent. He held discriminatory views about Pakistanis which he expressed most forcefully to the claimant. He was also disparaging about women as we found with the Kamini and bitch comments on issues 4 and 10.

[145]The acts of harassment upon which we have found in the claimant’s favour, all took place in a relatively short period of time and throughout her employment. They are consistent in theme on the part of the second respondent. We find that there was a continuing act of harassment which brings the issues upon which we have found in the claimant’s favour within time. Holiday pay

[146]As a matter of law under the Working Time Regulations the claimant is entitled to be paid on termination for her untaken annual leave. We found she took no holiday during her 5 month period of employment, other than taking the statutory Bank Holidays of which we find there were four: two at Easter and two in May 2017.

[147]So far as calculating the amount of holiday pay is concerned, our finding above is that there was no binding contract for the claimant to work in a negotiator’s role so her pay remained at £24,000 per annum. As it is pay, it is awarded gross.

[148]There was a calculation in the claimant’s schedule of loss and we asked the respondent if, in the light of our findings, that figure was agreed and we checked with the claimant that it was the figure sought. The sum sought was £771.31 (bundle page 105) and was agreed by the respondents.

The issues

[1]This decision was given orally on 15 February 2019. The claimant requested written reasons.

[2]The judgment and reasons on liability were delivered orally on 2 November 2018. Written reasons were sent to the parties on 12 November 2018 at the claimant’s request.

[3]The claim succeeded on issues 1, 2, 3, 5, 6, 10 and 14 on race related harassment and on issues 4 and 10 on gender related harassment. The claims on issues 7, 8, 9, 11, 12 and 13 failed.

[4]The claims for notice pay and holiday pay succeeded and the amounts were agreed by consent and formed part of the liability judgment. The issues for the remedy hearing

[5]The issue for the remedy hearing is the amount of compensation due to the claimant for financial loss and injury to feelings and/or psychiatric injury arising from the acts of discrimination upon which she succeeded plus interest under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The interest rate is 8% on judgment debts.

[6]We confirmed with the parties at the outset, that the issues were: financial loss - from dismissal to date and any future loss, mitigation, injury to feelings, aggravated damages, psychiatric injury and pension loss.

[7]At the outset counsel for the respondents said that they were not running a failure to mitigate argument so this was not in issue.

[8]The respondents said that if the tribunal was minded to award the cost of medical treatment the figure was agreed at £5,000 but there was an issue as to causation.

[9]The respondents also accept that the claimant was auto enrolled in a NEST pension and accepts that the claimant can recover the employer (not employee) pension contributions.

[10]We explained to the claimant that the tribunal does not have the power to order or award a good reference from the respondents. She sought this in paragraph 73 of her remedy witness statement. On day 1 of this hearing the respondents offered this voluntarily and we told the claimant that she should discuss this with the respondents’ counsel direct as it was not open to us to award this.

[11]The claimant remains unrepresented, but she has very sensibly sought advice and help from the ELIPS Scheme at London Central ET in preparation for this remedy hearing. Witnesses and documents

[12]We heard from the claimant who had a remedy witness statement running to 107 paragraphs.

[13]There was a jointly instructed medical report from Dr G Stein, a consultant psychiatrist.

[14]We had a remedy bundle of over 1,000 pages. Much of the documentation related to the claimant’s job searches. Facts not in dispute or as previously found

[15]The claimant’s effective date of termination was 7 August 2017. She worked in administration and accounts. She did not have two years service so there was no claim for unfair dismissal. She had 5 months service with the first respondent, having started work for the company on 6 March 2017. The first respondent is an estate agency managing real estate and property in Camden, London NW1.

[16]The claim for racial harassment succeeded on issues that they all involved comments about “Pakis” or made derogatory and offensive comments about those of Pakistani heritage. We found that the dismissal was an act of racial harassment directly related to the complaint about the second respondent’s harassing conduct in using the offensive terms.

[17]We found that the derogatory reference to “Paki’s” was harassment related to race and that the second respondent knew this when he made the comments. Additionally we found that there had been harassment related to gender, on two issues, in calling the claimant a “bitch” or “Kamini” which we found meant the same.

[18]The issues on which the claimant succeeded, in summary form were as follows. They succeed as race related harassment save for issue 4 which is gender related harassment. Issue 10 succeeded as both race and gender related harassment. 1 - April 2017: Paki comments 2 - April 2017: Paki comments about the claimant’s fiancé 3 - May 2017: comments about “stingy Paki’s” 4 - May 2017: Kamini comments – also relied upon as harassment related to sex 5 - June 2017: threats etc – “when will you Paki’s learn” 6 - June 2017: small box of sweets episode 10 - 5 August 2017: instruction to sack staff member, “Paki bitch” remark - also relied upon as harassment related to sex 14 - 7 August 2017: constructive dismissal

[19]The second respondent took a belligerent stance with the claimant and those who worked for him and his company. He took the view that even if he was wrong, he was still right (liability decision paragraph 31).

[20]The second respondent was offensive and disparaging about the claimant’s fiancé, Mr Khwaja, which amounted to racial harassment, he expressed the views that those from the claimant’s racial background were stingy, we found that both the second respondent and Mr Ahmed called the claimant Kamini and they meant “bitch” as gender related harassment, that the second respondent made threatening racial comments to the claimant, that he again referred to “stingy Pakis” when the claimant brought in a box of sweets, that he called her a “f***ing Paki bitch” over the phone on 5 August 2017 in an angry and aggressive manner and suggested that she was harassing him. The dismissal was an act of racial harassment. Calling the claimant a “f***ing Paki bitch” was harassment related to both race and gender.

[21]On issue 5 relating to the box of sweets, we found that the act of harassment involved racial offence towards the claimant’s parents (liability judgment paragraphs 57 and 59).

[22]Our findings were supported by the fact that the second respondent was convicted of the offence of malicious communication under section 127(1) of the Communications Act 2003. He was fined £350 and ordered to pay compensation of £100 to the claimant. He pleaded guilty at Highbury Corner Magistrates Court who found the offence to be racially aggravated.

[23]We found that the second respondent’s discriminatory conduct towards the claimant caused her to be off sick from 9 to 16 May 2017 with dizziness, tiredness and a fainting episode (liability decision paragraph 52). Findings of fact related to remedy

[24]The claimant’s evidence was that the acts of discrimination had a huge impact on her life, mentally, socially, physically and emotionally. She said she became ill and it has affected her ability to find new employment. She says that she suffers from sleepless nights and anxiety and suffers from paranoia and agoraphobia. This was confirmed by the medical report referred to below and we find as a fact that the claimant’s condition was as she described and as the medical expert stated.

[25]As the claimant succeeded on issue 14, dismissal as an act of race and gender related harassment, she can seek the losses flowing from this discriminatory dismissal.

Findings of fact

[26]The claimant has previously worked in the beauty industry (statement paragraph 66). She worked in retail cosmetics, she has worked as a GP receptionist and in administration. She was a good sales person in retail cosmetics. She has worked for the Home Office in Lunar House in Croydon as secretary to the Chief Executive. She was a senior make up artist for a company known as Kikko. She joined the first respondent from Kikko. She has not succeeded in finding work since her dismissal from the first respondent. She has secured interviews but has interviewed poorly due to her state of mental health. The respondent takes no issue on mitigation.

[27]The claimant’s gross annual pay with the respondent was £24,000 and her net monthly take home pay was £1,621.30. Net weekly pay was £374.15.

[28]The claimant gives credit for the State Benefit of Universal Credit which she has been receiving at the rate of £317.82 per month.

[29]There is a claim for pension loss. We noted from the ET1 (box 6.4) that the claimant said she was in the first respondent’s pension scheme. The claimant was auto enrolled into the National Employers Savings Trust (NEST). It is based on an initial 1% contribution on each side. The pension loss is agreed by the respondent for employer contributions at the appropriate rate subject to our findings and our decision on causation. Dr Stein’s report

[30]Dr G Stein is a jointly instructed psychiatric expert.

[31]His report said that the claimant had worked consistently since the age of 17. She has not previously had difficulty in finding work. She was aged 34 at the date of dismissal.

[32]The claimant has been taking an antidepressant, Amitriptyline, at 25mg, since August 2017 (we saw supporting evidence at page 93 of the liability bundle). Since October 2017 she has been taking Propranolol for anxiety at 10mg, (supporting evidence page 92 liability bundle) and from November 2017 she has been taking Sertraline, initially at 50mg with the dose increasing. This is also an antidepressant (supporting evidence pages 87 and 91 liability bundle).

[33]The claimant saw her GP on 10 November 2017 for an anxiety problem related to the racially aggravated offence for which the second respondent was convicted (Dr Stein’s report paragraph 22). She is frightened of being attacked.

[34]Dr Stein’s report says that the claimant’s background is psychiatrically normal. He said that there were a number of consequences of the abusive comments from her manager:a. She fulfils the criteria for PTSD

b. She fulfils criteria for depression of moderate severity

c. She gets panic disorder

d. She has developed agoraphobia

e. She has been unable to find a job despite a good work record and relative ease of finding work previously.

[35]Dr Stein said there was no evidence of PTSD prior to the events in question. He attributed causation at 100% to her period of employment. He categorised this as moderate severity. He said the same in relation to depression, attributing causation at 100% and of moderate severity.

[36]The claimant has not interviewed well post-dismissal, which Dr Stein attributes to the events in question.

[37]He recommended skilled treatment for depression and PTSD. He recommended private treatment because treatment on the NHS had not worked. He said that without treatment her mental ill health could possibly continue indefinitely.

[38]Because of the claimant’s anxiety at interview and failure to secure jobs, despite having applied for over 100, Dr Stein recommended treatment for depression and PTSD. He described this as the “way out” of the problem. He considered that she needed to see Consultant Psychiatrist and some different medication. He said that she definitely needed skilled treatment for her conditions.

[39]The respondents asked supplementary questions of Dr Stein and his answers were at page 877(i)-(iv). In the supplementary answers Dr Stein said: “It is totally impossible or beyond the level of psychiatric knowledge to determine which type of remark was the most damaging or how much of the emotional damage was exclusively due to [the issues on which the claimant succeeded] and how much is due to the other items which the court did not uphold as [a]mounting to sexual harassment or racial abuse.” (page 877(i)-(ii)).

[40]On Carpal Tunnel syndrome he was asked whether it was possible to attribute the claimant’s Carpal Tunnel syndrome to the claims upheld in this tribunal. He answered: “only minimally”. In his substantive report (paragraph 20) he said that carpal tunnel has many causes and stress may be one of them (our underlining). This was not sufficiently conclusive for us to find that the respondents’ actions caused the claimant’s carpal tunnel syndrome. We find that carpal tunnel was not caused by the acts of discrimination.

[41]It was put to the claimant that because of non-discriminatory actions on the part of the second respondent, such as throwing papers at her, sending her on errands, criticising her over the time taken to deal with her mother’s prescription and being threatening, impacted her health. The claimant said she could not answer this, it was some time ago and there was a medical report.

[42]It was put to the claimant that the second respondent’s unpleasant but nondiscriminatory actions would have caused her to leave her employment in any event. She flatly denied this, saying that she would definitely have stayed because she had a wedding to plan and that this was why her now husband, telephoned the second respondent to ask for a grievance meeting (liability decision, paragraph 92).

[43]We find that absent the discrimination the claimant would have stayed in the first respondent’s employment. We find that she was focussed on her wedding plans, as referred to in our liability decision (for example paragraph 82) and this was not the time for her to be leaving a job she had only started relatively recently.

[44]It was the very intimidating nature and unpleasantness of the race and sex discriminatory comments that on our finding led to her leaving the first respondent’s employment. Threats included a threat to “chop all your heads off, when will you Paki’s learn”, calling the claimant a “F***ing Paki bitch”, calling her “Kamini” which we found meant bitch, referring to her parents as “stingy Pakis”, and referring to her then fiancé as a “Paki” and an “idiot” and then dismissing her as an act of discriminatory harassment after her fiancé phoned asking for a grievance meeting. This was highly offensive, insulting and oppressive.

[45]There were other actions on the part of the second respondent which the claimant accepted in evidence at this remedy hearing, that she found upsetting. This included the second respondent shouting at her, sending her on his errands and throwing papers at her.

[46]The claimant’s evidence was that it was the personal comments that we made findings on, that upset her the most. These were the discriminatory harassing comments.

[47]It was put to the claimant that there were parts of the 5 August 2017 angry telephone call from the second respondent that upset her, but which were not discriminatory. We find that it is not possible to pull this conversation apart and extrapolate parts of it which were not racially offensive and parts of it which were. We found that the call was an act of sex and race harassment, for example calling her a “F***ing Paki bitch”. He said: “you can’t even do your jobs properly you retards from all corners of the world” and “you are f***ing with me bitch”. It was outrageous and discriminatory conduct on the part of the second respondent and we find that he should not benefit from any part of that angry tirade which might have contained non-discriminatory words. It was a call that led to his conviction for a racially aggravated malicious communication.

The law

[48]Section 124 of the Equality Act 2010 provides that where a tribunal finds that there has been a contravention of a relevant provision the tribunal may make a declaration as to the rights of the parties; an order requiring the payment of compensation and an appropriate recommendation.

[49]In assessing financial loss the aim is to put the claimant in the position that he would have been in, but for the discriminatory act. Loss caused by anything other than the discrimination is not recoverable.

[50]Awards for injury to feelings are compensatory. They should be just to both parties, fully compensating the claimant (without punishing the respondent) only for proven, unlawful discrimination for which the respondent is liable. Tribunals must remind themselves of the value in everyday life of the award by reference purchasing power or earnings.

[51]There are three bands for award for injury to feelings following Vento Chief Constable of West Yorkshire Police

2003 IRLR 102

CA and uprated in Da’Bell v NSPCC

2010 IRLR 19

EAT.

[52]The Court of Appeal confirmed in the case of De Souza v Vinci Construction UK Ltd

2017 EWCA Civ 879

, having reviewed the EAT authorities, that the proper level of general damages should be increased by 10% following Simmons v Castle

2012 EWCA Civ 1288

[53]Presidential Guidance was issued on the Vento bands on 5 September 2017 taking account of Simmons v Castle. In respect of claims presented on or after 11 September 2017 the Vento bands have been uprated. The lower band was £800 to £8,400; the middle band £8,400 to £25,200 and the top band £25,200 to £42,000; with the most exceptional cases capable of exceeding £42,000. The claimant says this is an upper band case and the respondents say it is a middle band case.

[54]There was an addendum to the Presidential Guidance with a further uprating of the Vento bands for claims presented on or after 6 April 2018, which does not apply to this case.

[55]Aggravated damages are compensatory and not punitive. They can be awarded where the act is done in an exceptionally upsetting way – Commissioner of the Police of the Metropolis v Shaw EAT 0125/11 when the conduct is “high-handed, malicious, insulting or oppressive”. It can be awarded where the discriminatory conduct is based on prejudice or animosity or which is spiteful or vindictive. It can be awarded if the conduct at the trial is unnecessarily oppressive, failing to apologise or failing to treat the complaint with the requisite seriousness.

[56]At the same time tribunals must be aware of the risk of double recovery and consider whether the overall award of injury to feelings and aggravated damages is proportionate to the totality of the suffering caused to the claimant. Aggravated damages should usually be formulated as a subheading of injury to feelings. On the current case law the sum of £20,000 is considered to be the top of the bracket for aggravated damages.

[57]General Damages for Personal Injury are covered in the Judicial College Guidelines, currently in its 14th Edition. Psychiatric and Psychological Damage is at chapter 4 of the Guidelines and it includes the uplift for Simmons v Castle. It also contains Notes on Multiple Injuries, noting that there can be difficulty in determining the extent to which there is overlap between injuries and how this should be reflected in the award. It is always necessary to stand back from the compilation of individual figures…to consider whether the award……should be greater than the sum of the parts…or should be smaller than the sum of the parts in order to remove an element of double counting. (See Court of Appeal in Sadler v Filipiak

2011 EWCA Civ 1728

paragraph 34.).

[58]We are obliged to consider whether to award interest on awards for discrimination. The basis of calculation is set out in the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 SI 2803 (as amended). For injury to feelings interest is for the period beginning on the date of the act of discrimination and ending on the day the amount of interest is calculated. For financial loss interest commences at a mid-point.

[59]Where there is more than one discriminator the usual award is that each such respondent is jointly and severally liable - see London Borough of Hackney v Sivanandan CA,

2013 EWCA Civ 22

[60]In relation to taxation, the Court of Appeal in Moorthy v HMRC

2018 EWCA Civ 847

held that awards for injury to feelings were to be treated as tax free, whether or not related to the termination of employment. This position changed from 6 April 2018 by an amendment to section 406 of the Income Tax (Earnings and Pensions) Act 2003 so that although “injury” in subsection (1) includes psychiatric injury, it does not include injured feelings. This amendment has effect for the tax year 2018–19 and subsequent tax years. Section 406 which deals with tax exemption provides:(1) This Chapter does not apply to a payment or other benefit provided— (a) in connection with the termination of employment by the death of an employee, or (b) on account of injury to, or disability of, an employee.

(2) Although “injury” in subsection (1) includes psychiatric injury, it does not include injured feelings.

[61]This means that an award for psychiatric injury falls within the tax exemption, an award for injury to feelings does not. An award for injury to feelings is taxable to the extent that it exceeds £30,000. An award for psychiatric injury is tax exempt.

[62]Grossing up: To avoid any disadvantage to the claimant we should gross up any award to her over £30,000. It requires us to estimate the tax she will have to pay on receipt of the award and add that sum back into the award, to cancel out the tax burden on the claimant. The purpose is to place in the claimant’s hands the amount she would have received had she not been discriminated against.

[63]On pension loss we have had regard to the Employment Tribunals Principles for Compensating Pension Loss Fourth Edition, issued in August 2017 (“the Principles”).

[64]The question of apportionment of damages for multiple causes has been the subject of some conflicting authority but has been resolved recently by the Court of Appeal in BAE Systems (Operations) Ltd v Konczak

2017 IRLR 893

. The background case law sets out some relevant propositions or principles including: Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment.

[65]The difficult task is looking at whether the harm is “truly indivisible”. The tribunal has the task of avoiding over-compensation in what can be difficult cases. A sensible approach should be made to apportion harm between what is and what is not attributable to the defendant or respondent’s wrong (Konczak paragraph 67).

[66]Underhill LJ said in Konczak at paragraph 71: What is therefore required in any case of this character is that the tribunal should try to identify a rational basis on which the harm suffered can be apportioned between a part caused by the employer's wrong and a part which is not so caused. I would emphasise, because the distinction is easily overlooked, that the exercise is concerned not with the divisibility of the causative contribution but with the divisibility of the harm. In other words, the question is whether the tribunal can identify, however broadly, a particular part of the suffering which is due to the wrong; not whether it can assess the degree to which the wrong caused the harm.

[67]We must seek to find a rational basis for distinguishing between a part of the illness which is due to the employer’s wrong and a part which is due to other causes; but whether that is possible will depend on the facts and the evidence. If there is no such basis, then the injury will be “truly indivisible”, and the claimant will need to be compensated for the whole of the injury.

[68]The relevant case law discusses claimants who have a relevant pre-existing injury which on the facts and the medical evidence, is not applicable to the case before us.

[69]Employees are under a duty to mitigate loss. The burden of proving a failure to mitigate lies with the respondent. They must show any failure was unreasonable. We must consider what steps the claimant should have taken to mitigate her loss, whether it was unreasonable for her to have failed to take any such steps and if so, the date from which alternative income would have been received. The respondents told the tribunal at the outset of this remedy hearing that they did not take a point on failure to mitigate. Conclusions on remedy

[70]We found the respondents’ submission that the second respondent’s unpleasant actions would have caused the claimant to leave her employment in any event and that we should in some way extrapolate his discriminatory unpleasantness from his non-discriminatory unpleasantness a rather unattractive argument.

[71]We have found the second respondent to be a discriminatory harasser. We do not pull apart the different elements for example of the telephone conversations in August 2017 when we have made clear findings that he unlawfully harassed the claimant in those conversations and we have an expert medical report that attributes causation by 100%.

[72]Our finding of fact above is that absent the discrimination the claimant would not have left the first respondent’s employment in any event. She was planning her wedding and weddings are usually costly. This was not the time for her to be changing her job.

[73]We make further findings below as to they way in which we deal with the apportionment argument. Injury to feelings – Vento bands

[74]The claimant seeks the top Vento band. In her Schedule of Loss the claimant set out the band based on the addendum to the Presidential Guidance referred to above (top band of £25,700 to £42,900) but this applies to claims presented on or after 6 April 2018 and not to her claim which was presented on 4 November 2017. The top band applicable to this case is £25,200 to £42,000. This is not said with any criticism of the claimant who is a litigant in person.

[75]The claimant asks the tribunal to add 10% to reflect Simmons v Castle. This is already reflected in the relevant Vento bands under the September 2017 Presidential Guidance.

[76]The respondents submit that this is a middle band case. The respondents rely on this being a four month period of harassment (April to early August 2017) and they rely on what they submit are comparable reported cases from Harvey, paragraph 1025 onwards. We were taken to Derradji v Peter Howarth Ltd 2013 EqLR 1211 where the General Manager of the respondent sent the claimant texts containing racist jokes over a 1 year period including references to “Pakis” and “wogs”. This was found to be a lower middle band case and the award was £7,000 + the 10% uplift.

[77]In Simpson v BAA Airports Ltd Case no. 2703460/2009 the claimant worked in security at Heathrow Airport, she was subjected to offensive remarks about her colour over a 6 month period, which is not dissimilar from the 4 month period in the case before us. There were derogatory comments about black people and an inept investigation into her grievance. In the case before us there was no grievance, even though this was requested by the claimant’s partner. Simpson was found to be a top middle band case.

[78]In Davies v Department for Work and Pensions, 2100847/2011 the claimant’s life had not been completely ruined but the events did have an extremely serious effect upon her. The award in that case was top of the middle Vento band at £18,000. In the case before us, the claimant has suffered extremely serious consequences to her mental health and social, personal and professional life. She has not been able to work since her dismissal and Dr Stein recommends private medical treatment to bring about her recovery.

[79]We find that the case before us is more serious than Davies and the other cases we have referred to and we find that it is a top band case. Although the period of discrimination was only four months, it was on our finding, extremely serious and went on throughout the remaining period of her employment. The effect upon the claimant has been devastating. Her evidence as to the effect upon her and the injury to her feelings is corroborated by Dr Stein’s report. We find for her on this.

[80]The claimant was harassed because of her race and gender by being called a “F***ing Paki bitch”, was told that all “Pakis are stingy” and a threat to chop off the heads of Pakis who would not learn (liability judgment paragraph 53) and a reference to those from her racial origin as “retards”.

[81]This case was not about sending jokes, it was offensive and insulting harassment directed at the claimant personally and towards members of her family and her fiancé. The second respondent did not direct his comments at the claimant in a joking manner, but in an aggressive and intimidatory manner. The discriminatory harassment was particularly serious, offensive, aggressive, threating and intimidating.

[82]Based on the cases put before us, we find that this is a lower end top band case. We put it at the lower end of the top band because of the four-month period compared with other cases. We make an award for injury to feelings in the sum £27,000. Psychiatric injury

[83]Dr Stein in his report gave his professional view that the claimant fulfils the criteria for both PTSD and depression which he considered was caused by 100% to the claimant’s period of employment with the respondents (his report paragraph 37.5 - 37.8). He also finds she gets panic disorder and has developed agoraphobia.

[84]Both parties referred us to the Judicial College Guidelines, Chapter 4 dealing with Psychiatric and Psychological Damage. As to PTSD, Dr Stein said that in classification of severity of mild, moderate or severe, in his opinion she fell into the category of ““moderate severity” and “within the moderate severity range” (page 39 remedy bundle paragraph 37.6). The categories in the Judicial College Guidelines are: Severe, Moderately Severe, Moderate and Less Severe. The respondent submitted that we should interpret this as Moderate. The claimant submits that we should regard it as Moderately Severe.

[85]We find that in saying “within the moderate severity range” using the two words together, that Dr Stein means Moderately Severe. We find that if he had meant only Moderate, he would not have used the word “severe” or “severity” next to it and would have excluded the word “severity” from the inverted commas. In our experience, medical experts are familiar with the classifications and we cannot ignore his use of the two words together “moderate severity” and “moderate severity range”. If he had meant Moderate, he could and we find on a balance of probabilities would, have used this word alone. He was not asked by the respondents to clarify this in the supplemental questions.

[86]For depression, his report paragraph 37.8, he classified it as “moderate severity”. Our findings as to this are the same as for PTSD and we find he classifies it as Moderately Severe.

[87]This means that for psychiatric damage generally the relevant band including the 10% uplift for depression is from £16,720 to £48,080 and for PTSD the relevant band including the 10% uplift is from £20,290 to £52,490. We are also mindful of our duty to stand back and consider the question of overlap.

[88]Dr Stein at paragraph 37.6 said that in placing the claimant in the moderate severity range, he places her roughly in the middle of the range. We are guided by this expert view. The mid-range on each, being the halfway point between the two figures is for general psychiatric damage £32,400 and for PTSD is £36,390. The total is £68,790. The claimant also has panic disorder and agoraphobia which she did not have before her employment with the respondents.

[89]The claimant in her schedule of loss sought PTSD as severe, but for the reasons we have given above, we find that the correct category is Moderately Severe. The claimant seeks the top for depression, being £48,080 and for PTSD £42,490.

[90]We find that there is substantial overlap of which we must take account as there is a link between the conditions. The medical view puts the claimant in the middle of the range. We award £34,000 because we take account of the prognosis which is positive, if the claimant receives the treatment recommended by Dr Stein. His view is that the claimant requires 10 sessions with a consultant psychiatrist and 12-15 sessions with a private CBT specialist. His view is that this is the “way out” of her depression and PTSD. Without this treatment his view is that the claimant’s mental health ill health could be indefinite.

[91]For these reasons we also award the cost of treatment at £5,000 as this will have the effect of limiting ongoing loss. The sum was agreed by the respondents subject to our finding on causation on which we say more below. Aggravated damages

[92]The claimant submits that the respondents acted in a high-handed malicious insulting and oppressive manner. She claimed aggravated damages.

[93]We find that this was conduct which was highly insulting not just to the claimant but to members of her family (the sweets issue) and to her then finance, now husband, Mr Khwaja describing him as “the guy you’re going to marry, the small little dude. He is an idiot, is he a Paki too?” We found that the second respondent was offensive about the claimant’s fiancé and this was upsetting and offensive to her.

[94]We also heard the tone of the telephone conversation which we found was loud, angry, aggressive, unpleasant, offensive and intimidating in tone (paragraph 79 liability judgment). The second respondent suggested that the claimant harassed him, yet there was no evidence to support it. This was also high-handed and insulting. It was not a case of a small incident of racial harassment when the second respondent was convicted of a racially aggravated malicious communication. This satisfies us that his conduct was malicious as well as high handed, insulting and oppressive and supports an award of aggravated damages.

[95]We found that there was some similarity, from the cases put to us on behalf of the respondents, all of which we considered, and by way of example we refer to Simpson v BAA Airports Ltd Case no. 2703460/2009 from Harvey paragraph 1234.

[96]We find that this is a case which justifies an award of aggravated damages and we award £10,000. Apportionment

[97]The respondent submitted that this was a case in which we should apportion the award to the claimant for injury to feelings and psychiatric injury to take account of the second respondent’s non-discriminatory conduct, as separate from his unlawful discriminatory conduct. We note first of all that this is not a case in which the claimant had any pre-existing condition which was exacerbated. In those circumstances we considered only whether the second respondent’s actions and the causation of injury was truly divisible under Konczak. What was unattractive about the respondents’ submissions, whilst understanding why they were made, is that it focused on other unpleasant and offensive actions of the second respondent which did not amount to discriminatory harassment.

[98]It was submitted for example that on those matters where the claimant failed, on issues 7, 8, 9, 11, 12 and 13, or on other actions of the second respondent such as throwing papers at her or sitting in her car when she did not want him to, that we should separate these matters and ensure that we made no award for them.

[99]We are aware that we can compensate only for the loss or damage that arises from the discrimination and not otherwise. What is made more difficult is that Dr Stein refers to causation as 100% from “her period of employment” (report paragraph 37.6). He does not expressly state “from the acts of unlawful harassment” and has dealt with this in answers to supplementary questions as we have set out above.

[100]We have considered the respondent’s submission that we should apportion the damages to the claimant by distinguishing between any part of her illness which is due to the respondents’ wrong and any part which is due to other causes. As we have said above, we found this argument unattractive on the facts of this case. Nevertheless, we can only make an award in respect of loss and damage arising from the discrimination.

[101]The claimant acknowledged in her evidence that there were actions on the part of the second respondent, in respect of which we found there was no discrimination and which actions also upset her. We repeat our finding that the claimant would have stayed in the first respondent’s employment but for the discrimination. Thus, we find that the discriminatory harassment was the primary and substantive cause of her injured feelings and psychiatric harm. There was no pre-existing condition, as Dr Stein made clear.

[102]We find that the non-discriminatory actions of the respondents played a minimal part in the claimant’s ill-health and injured feelings because the damage was caused primarily and substantively by the discrimination. We acknowledge that there were some actions that caused upset and Dr Stein did not make any apportionment himself. We have to do the best that we can on a broad-brush approach. Our finding is that there were nondiscriminatory reasons causing upset, that this was minimal and for those reasons we find that there should be a low level reduction of 15% to reflect this. Financial loss

[103]The claimant seeks her financial losses. We have found that the dismissal was an act of both race and gender harassment (liability judgment paragraph 96) thus the claimant can recover her loss of earnings flowing from the discriminatory dismissal.

[104]As a result of the discrimination and based on Dr Stein’s report and the claimant’s own evidence, she has been unable to work since dismissal. No failure to mitigate argument was advanced. In order to recover her health and return to work, the claimant requires the treatment recommended by Dr Stein. We find that she is entitled to recover her loss of earnings to date and for a period of future loss. Dr Stein’s view is that the claimant requires 10 sessions with a consultant psychiatrist and 12-15 sessions with a private CBT specialist. We consider that in order to allow this treatment to take place the claimant should recover future loss for a further period of nine months from the date of this hearing.

[105]The claimant’s net monthly loss is £1,621.30. The period of loss is from 7 August 2017 until 15 November 2019. To 7 August 2019 is two years, and to 15 November 2019 is 100 days. The annual loss is £19,455.60 x 2 = £38,911.20. For 100 days the loss is £5,330.39. The total financial loss, not including pension and interest, is £44,241.59. Pension loss

[106]We categorise this case as a “simple” case under the Principles 4th Edition. The basis for calculation used is to calculate the employer’s contributions for the period of loss we have identified. This is known as the “contributions method” (see the Principles referred to above at paragraph 4.17). We do not award employee contributions as it is a matter for the claimant to decide whether she wants to make pension contributions from the loss of earnings figure we award (Principles paragraph 4.19). Neither side had enquired about a short service refund covering the period of employment.

[107]As pension loss is a form of future loss which arises only upon retirement, interest is not payable on compensation for this (Principles paragraph 2.12). It is nevertheless taxable.

[108]The respondent agrees the amount for pension loss is based on gross earnings at £2,000 per month. For the tax year 2017/2018 is at 1% on earnings over £5,876 makes an annual employer pension contribution of £181.24. The claimant received pension contributions to 7 August 2017. Therefore, the award is from 7 August 2017 to 5 April 2018 – seven months being £105.72. From 6 April 2018 to 5 April 2018 is a full year at 2% of earnings over £6,032 is an annual loss of £359.36. From 6 April 2019 to 15 November 2019 is seven months, at 3% of earnings over £6,136, annual £535.92 and for seven months is £312.62.

[109]The total sum for pension loss is the total of £105.72 + £359.36 + £312.62 = £777.70. We reduce this by 15% on our apportionment of £116.65 making a final total of £661.05. ACAS Code

[110]The claimant in submissions sought an uplift for failure to follow the ACAS Code but was not clear upon the basis for this claim. It had not been quantified in her Schedule of Loss and we are aware that the claimant received help with this from ELIPS.

[111]In the Case Management Order (paragraph 16), the tribunal said that no sum should be left “TBC” in the Schedule of Loss and it must be properly calculated. The respondent was not able to answer it in the Counter Schedule of Loss and invited us not to allow any uplift.

[112]We are persuaded by this argument as despite a very detailed and comprehensive Schedule of Loss, with the benefit of some legal assistance and including reference to the Judicial College Guidelines, no such sum was claimed and the basis for it was not set out. We decline to award any uplift for any alleged unreasonable failure to comply with the ACAS Code.

[113]In her Schedule of Loss the claimant sought £225,805.24 plus other sums which were not quantified. Universal Credit

[114]The claimant gives credit for Universal Credit. This is received at the rate of £317.82 per month. We therefore reduce the award by the amount of Universal Credit for two years and three months, therefore 27 months at £317.82 = £8,581.14. Apportionment

[115]Based on our finding above there is a reduction of 15% under Konczak which applies to the awards for injury to feelings and psychiatric injury. This is therefore a reduction on the respective sums of £37,000 and £34,000, total of £71,000 to be reduced by £10,650 = £60,350.

[116]Dealing with the items individually, the sum of £37,000 for injury to feelings including aggravated damages is £5,550 is reduced to £31,450 and the sum of £34,000 for psychiatric injury is reduced to £28,900.

[117]We initially did not reduce the financial losses by 15% because we took the view that this flowed from the discriminatory dismissal. Counsel for the respondent made the point that the reason the claimant cannot work is because of psychiatric injury and we decided of our own volition to reconsider this part of our decision and we apply the 15% reduction to the financial losses. The sum of £44,241.59 is reduced by 15% (£6,636,24) making a sum of £37,605.35. Interest

[118]On injury to feelings the interest is from the date of the act of discrimination until the date of calculation which is 15 February 2019. We had a discussion about the date upon which to begin the calculation. The claimant asked for April and the respondent suggested 1 June 2017. We noted that on the matters on which the claimant succeeded, four incidents were in April and May 2017 and four were in June and August. We agreed with the respondent that 1 June 2017 was the appropriate date.

[119]The period of calculation is approximately 1 year and 7.5 month therefore 624 days. The sum upon which we calculate is £31,450. The rate is 8% per annum. The daily rate is £6.89 x 624 = £4,299.36.

[120]Interest on past financial losses is from 7 August 2017 to 15 February 2019 is 557 days (or 18 months and 8 days). The financial losses to 15 February 2019 is at a daily rate of £53.30 for 557 days is £29,688.10. To this we apply the 15% apportioned reduction is £45.31. Interest on this sum at 8% is from a mid-point therefore for 279 days at a daily rate of £5.53 makes a total interest award of £1,542.87.

[121]The total award of interest is therefore £5,842.23. Tax

[122]The first £30,000 is tax exempt. The claimant has a personal allowance of £11,850 for this tax year. The damages for psychiatric injury is not taxable. The cost of medical treatment which attaches to the psychiatric injury is also not taxable.

[123]The loss of earnings + interest is taxable less a deduction for Universal Credit. Loss of earnings is £37,605.35 + interest of £1,542.87 = £39,148.22 less Universal Credit £8581.14 = £30,567.08. We add to this pension loss of £661.05 makes a taxable total of £31,228.13,

[124]Tax is not payable on the award for psychiatric injury. The award for this is tax exempt, being £34,000 less 15% making £5,100 leaving a tax-exempt figure of £28,900.

[125]We have taken account of the amendment made with the Finance Act 2017 means that if there is an award for injury to feelings which does not relate to termination of employment it is not taxable. If it relates to termination it is taxable. The amendment applies for the tax year 2018/2019. We therefore default to the Moorthy position that awards for injury to feelings are to be treated as tax free, whether or not they relate to the termination of employment. As yet there is no case law to confirm this but this is our decision on the law as we currently understand it. If HMRC take a different view on this we give the claimant leave to seek a reconsideration.

[126]We therefore treat the injury to feelings as tax exempt.

[127]As the taxable amount is £31,228.13, the tax exempt amount is £30,000 and the balance of £1,228.13 is covered by the personal allowance, our finding is that no tax is payable and there is therefore no need for us to gross up.

Conclusions

[128]The total award to the claimant is the sum of £100,877.49 made up as to injury to feelings £35,749.36 (injury to feelings + aggravated damages + interest less 15% reduction); psychiatric injury less 15% reduction (no interest as this is not an award for injury to feelings and the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 do not apply) £28,900; financial loss including interest plus pension less 15% £31,228.13; cost of treatment £5,000.

[129]The respondents applied for the payment to be staggered under Rule 66 which provides that a party shall comply with a judgement for payment within 14 days of the date of the judgment unless the judgment specifies a different date for compliance.

[130]It was submitted for the respondents that the first respondent has recently made a financial loss and does not have the funds to pay within 14 days, the company is in a negative balance with roughly £20,000 in the bank at any one time. The second respondent was said to be in receipt of working tax credit, housing allowance and child tax credit. There was no evidence to support that. Although the respondent’s counsel had papers to hand, nothing had been submitted in advance, the second respondent had chosen not to be present on day 2 and we had no evidence from him to support this. He was said not to own property and to receive housing tax credit.

[131]We were told that anything more than £5,000 per quarter was “going to be difficult” given the level of outgoings of the business.

[132]The claimant said he did not make other payments due to her on time. The claimant’s said he drives a Porsche with a personalised number plate. Again this was not put in evidence. The claimant said she thought he had a number of accounts. The claimant said it should all be paid at once.

[133]As the second respondent chose not to attend the final day of this hearing and has not taken the trouble to prepare a statement or submit any evidence in advance and left it to his counsel to seek to produce papers after 4:30pm on the last day of the hearing we unanimously refused that application. The sum is payable under Rule 66 within 14 days.

Conclusions

[1]This decision on Reconsideration was given orally on 2 September 2019. The claimant requested written reasons.

[2]The judgment on remedy was delivered orally on 15 February 2019. Written reasons were sent to the parties on 18 February 2019 at the claimant’s request.

[3]Neither respondent was present. They were represented by counsel. Counsel had only been instructed on Friday afternoon 30 August 2019, the last working day before the hearing. He had not been provided with a copy of the Remedy judgment or the medical report of Dr Stein and he asked for 20 minutes further reading time. We granted half an hour and we provided Mr Otchie with a copy of the medical report. He said that during the hearing he had been sent by his solicitors a copy of the Remedy Judgment. The claimant made the pertinent point that the Remedy Judgment is available on line in any event. The respondents’ written application for reconsideration

[4]On 1 March 2019 the respondents made an application for reconsideration under rule 71. The grounds were as follows:

[5]Failure to apply the correct test of causation: the respondents said that the evidence before the tribunal namely the report of Dr Stein could not support the conclusion that the claimant’s depression and PTSD was caused by the respondents. They said the burden was on the claimant to prove her depression was caused by the discriminatory actions of the respondents rather than any non-discriminatory actions.

[6]They said that the evidence of Dr Stein failed to discharge the burden of proof in that he said “it is totally impossible or beyond the level of psychiatric knowledge to determine which type of remark was the most damaging or how much of the emotional damage was exclusively due to the issue on which the claimant succeeded and how much is due to other items which the court did not uphold as amounting to sexual harassment or racial abuse…”

[7]The respondents submitted that the correct test is derived from the Court of Session’s decision in Dignity Funerals v Bruce

2005 IRLR189

which they accepted was not put before the tribunal at the remedy hearing. They say the tests was the loss caused by the discrimination to any material extent. They say that the matter should be reconsidered by the tribunal to apply the correct test and to obtain further medical evidence.

[8]Failure to apportion the causes of the psychiatric illness: the respondents said that the tribunal considered the issue of apportionment but failed to take into account the Court of Appeal’s decision in Allen v British Rail Engineering Ltd

2001 ICR 942

per Schiemann LJ. Again this was an authority that was not put before the tribunal at the remedy hearing despite the respondent being represented by counsel.

[9]The respondents said that all losses should have been reduced by at least 30% given the probable attribution by other non-liable causative factors.

[10]Vento: The respondents said that the award should not have been in the top band because it occurred over a relatively short period of time, four months, and was significantly shorter than the period in Simpson v BAA – referred to at the Remedy hearing.

[11]They say that the appropriate award should have been the middle band in the sum of £15,000.

[12]Psychiatric injury: they say that this fell within low to moderate range of severity and the award of £34,000 was “manifestly excessive”.

[13]Aggravated damages: they said that the award of £10,000 of aggravated damages was outside the recognised range for such awards. They relied on Alexander v Home Office

1988 ICR 685

, Prison Service v Johnson

1997 ICR 275

, McConnell v Police Authority for Northern Ireland

1997 IRLR 625

, ICTS (UK) Ltd v Tchoula

2000 IRLR 643

and HM Prison Service v Salmon

2001 IRLR 425

[14]The respondents also gave notice that they would appeal the full merits judgment out of time. This is a matter for the EAT and not this tribunal.

[15]They also said that the tribunal failed to consider whether or not the second respondent should be jointly and severally liable for the acts of discrimination complained of. The issues for this hearing

[16]The issue for this Reconsideration hearing was whether to vary or revoke any of the above awards referred to in the respondent’s application. Documents

[17]We had written submissions from both parties and they both made oral submissions. The claimant submitted documents from Companies House regarding the respondents. These documents went to the issue of her difficulties with enforcement. The original decision on remedy

[18]We found that this was a lower end top band case. We put it at the lower end of the top band because of the four-month period compared with other cases. We made an award for injury to feelings in the sum £27,000.

[19]We made an award for psychiatric injury of £34,000 plus the cost of treatment at £5,000

[20]We found that this was a case justifying an award of aggravated damages which we awarded at £10,000.

[21]We awarded financial loss, not including pension and interest at £44,241.59. We awarded pension loss at £661.05.

[22]We made a reduction of 15% based on our finding that there were some non-discriminatory reasons causing upset to the claimant but they were minimal.

[23]We gave credit for receipt of Universal Credit of £8,581.14.

[24]Based on the figures in question we found that there was no need to do any grossing up.

[25]The total of award to the claimant was £100,877.49. This made up as to injury to feelings £35,749.36 (injury to feelings + aggravated damages + interest less 15% reduction); psychiatric injury less 15% reduction (no interest as that award was not an award for injury to feelings and the Interest Regulations did not apply to it) £28,900; financial loss including interest plus pension, less 15% equalled £31,228.13 and cost of psychiatric treatment £5,000. The respondents’ oral submissions

[26]The respondents did not deal orally with the causation issue and the written argument that we had failed to apply the correct test of causation (paragraphs 2-6 of the written application).

[27]On the failure to apportion the causes of the psychiatric illness, we raised a point with counsel on paragraph 8 of the written application which referred to paragraph 71 of our Remedy decision in which we said that we had an expert medical report that attributed causation by 100%. The written application said that no such conclusion was expressed by the expert. We drew to Mr Otchie’s attention paragraph 37.8 of Dr Stein’s report in which he said: “With regard to the depression there is no previous history of depression or family history of depression and I attribute that wholly (100%) to her experiences at SN Estates.” When we drew this to counsel’s attention he said he no longer pursed the point.

[28]Also on the issue of failure to apportion the causes of the psychiatric illness, counsel made no oral submission on the case of Allen v British Rail (above and below).

[29]The written submission that our conclusion that financial losses should be reduced by 15% was untenable and not in accordance with established case law was not argued orally. We were not told the case law relied upon.

[30]Vento band: The respondents’ submission was that our award was too high because of the short period of time spent in employment and the focus of the claimant’s injury. It was submitted that she should not recover for insults against others. We were taken to paragraphs 92 and 93 of our Remedy decision which makes reference to insults to the claimant’s family and her fiance.

[31]In relation to aggravated damages, the respondents submitted that the second respondent had been convicted of an offence which was racially aggravated and it would be double jeopardy to award for this.

[32]We asked the respondents what oral submission was made in relation to the award for psychiatric injury in the light of 37.6 of Dr Stein’s report. Mr Otchie submitted that we should have awarded at the bottom of the moderately severe range in the Judicial College Guidelines at Chapter 4 section B at £20,290.

[33]No oral submission was made on the reduction of 15%, contended for in the written application as 30% and on Konczak. The claimant’s oral submissions

[34]The claimant submitted that insults to her family and fiancé hurt her as well. It offended and upset her to have her family and fiancé insulted in that way.

[35]The claimant submitted that all matters had been dealt with and considered at the Remedy hearing in detail and she considered that our findings should stand.

[36]To the extent that the claimant made submissions in relation to enforcement we explained that this was not a matter for this tribunal or the hearing on Reconsideration. The law

[37]Rule 70 of the Employment Tribunal Rules of Procedure 2013 provides that a tribunal may, either on its own initiative or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.

[38]The respondents relied upon the decision of the Court of Session in Dignity Funerals v Bruce

2005 IRLR 189

, a case concerning a compensatory award and not a discrimination case and based on section 123(1) of the ERA 1996. At paragraph 11 of the judgment in that case the Court of Session said: “A compensatory award depends on proof of loss (Leonard v Strathclyde Buses Ltd

[1998] IRLR 693

). Therefore any application of the just and equitable test (supra) in a case such as this must be underpinned by findings in fact establishing that the loss was caused to a material extent by the dismissal.”

[39]On apportionment for multiple causes, the respondents relied upon the decision of the Court of Appeal in Allen v British Rail Engineering Ltd

2001 ICR 942

. This was a case in which the claimants worked for the defendant using percussive tools and sustained a condition known as “vibratory white finger”. The first claimant ceased working for the defendant but continued in different employment using the same tools and suffered further injury. It was a question of apportioning compensation to the different periods of employment with different employers.

[40]Aggravated damages are compensatory and not punitive. They can be awarded where the act is done in an exceptionally upsetting way – Commissioner of the Police of the Metropolis v Shaw EAT 0125/11 when the conduct is “high-handed, malicious, insulting or oppressive”. It can be awarded where the discriminatory conduct is based on prejudice or animosity or which is spiteful or vindictive. It can be awarded if the conduct at the trial is unnecessarily oppressive, failing to apologise or failing to treat the complaint with the requisite seriousness.

[41]At the same time tribunals must be aware of the risk of double recovery and consider whether the overall award of injury to feelings and aggravated damages is proportionate to the totality of the suffering caused to the claimant. Aggravated damages should usually be formulated as a subheading of injury to feelings. On the current case law the sum of £20,000 is considered to be the top of the bracket for aggravated damages.

[42]In Shaw at paragraph 29 having reviewed the current authorities Underhill P as he then was said “The large majority of awards were in the range £5,000–£7,500”. Shaw was decided in 2011. In Shaw itself the award was reduced from £20,000 to £7,500.

Conclusions

[43]The respondent did not pursue its contention that Dr Stein formed no conclusion that there was 100% causation, in the light of paragraph 37.8 of his report.

[44]On this issue of the causes of psychiatric injury the respondents relied upon Allen v British Rail. As set out above this was a case in which the claimants worked for the defendant using percussive tools and sustained a condition known as “vibratory white finger”. The first claimant ceased working for the defendant but continued in different employment using the same tools and suffered further injury. It was a question of apportioning compensation to the different periods of employment with different employers. The respondent at this hearing did not expand on what was relied upon in this respect. This is not such a case, we are not called upon to attribute between different employers and in any event, Dr Stein made clear that there was no pre-existing condition (his report paragraphs 37.6 and 37.8). We make no variation in relation to this.

[45]We find that the Vento award was appropriate and we do not vary this. We agreed with the claimant’s submission that insults to her family and fiancé were hurtful to her as well. We find that this is the case for most people, it is hurtful to have those closest to you offended in a discriminatory fashion. The claimant reported to Dr Stein (paragraph 3.2) that she was offended by the respondent’s comments and racist comments directed to her fiancé. The offensive comments were in any event directed to her. We see no reason to vary the Vento award. We considered the period of employment.

[46]The respondents took us to the very recently reported authority of Komeng v Creative Support Ltd

EAT/0275/18

. This confirmed we must direct ourselves to the effect of the unlawful discrimination on the claimant not the gravity of the acts of the respondent. The respondents submitted that there should be no award, because the focus should be on the effect on the claimant. We did focus on the effect upon the claimant, which was significant, as set out, for example, in the jointly instructed medical report.

[47]On aggravated damages, the oral submission was that was that to make an award in respect of a matter on which the second respondent had received a criminal conviction was double jeopardy. We disagreed. The purpose of our award to the claimant was compensatory under the Equality Act. A criminal conviction does not deal with this in terms of injury to feelings. It does not compensate the claimant under the Equality Act. We find no such double jeopardy.

The law

[48]The respondents also submitted that the award for aggravated damages was “just about sweets” – our paragraph 93. We find that it not just about that issue, it was one of the many we referred to in that paragraph including the offensive racial remarks about her fiancé.

[49]We deal with the oral submission that we should have awarded at the bottom of the moderately severe range in the Judicial College Guidelines at Chapter 4 section B at £20,290.

[50]The categories in the Judicial College Guidelines are: Severe, Moderately Severe, Moderate and Less Severe. At the Remedy hearing the respondent submitted that we should interpret Dr Stein’s report as saying the condition was Moderate. The claimant submitted that we should regard it as Moderately Severe. We considered that there was some ambiguity in Dr Stein’s report where he said in relation to the classification “in my opinion she falls into the classification of “moderate severity” and within the moderate severity range I would place her roughly in the middle of this range”. We considered that because there was some ambiguity in Dr Stein’s wording, we accept the respondents’ submission and we vary our award to the sum specifically contended for, namely £20,290.

[51]We therefore reduce £20,290 by 15% in accordance with our original Remedy findings, which produces a further reduction of £3,043.50 the sum of £17,246.50. The reduction is £16,753.50 (ie £34,000 - £17,246.50 = £16,73.30).

[52]We also need to reduce the interest we awarded on that amount for 624 days at 8%. The daily rate on £16,753.50 at 8% (£1,340.28 annually) divided by 365 is £3.67 x 624 = £2,290.08. Therefore we reduce the award by £16,753.50 and £2,290.08. The total reduction is therefore £19,043.58.

[53]The final award to the claimant is varied on reconsideration from £100,877.49 to £81,833.91.

[54]We made reference in our remedy decision to the decision of the Court of Appeal in London Borough of Hackney v Sivanandan

2013 IRLR 408

and the usual award, but we accept that we did not say in terms – and now do so - that following Sivanandan, we find that the respondents are jointly and severally liable.

[1]Our initial decision on remedy was given on 15 February 2019. We reconsidered our decision on remedy and gave judgment on 2 September 2019.

[2]The claimant initially applied for a reconsideration of our judgment on reconsideration of remedy. That application was refused. The claimant appealed the decision on Reconsideration of Remedy, by which her award was reduced by approximately £19,000.

[3]By a sealed order dated 7 May 2020 His Honour Judge Barklem ordered that the appeal be stayed pending referral back to this tribunal to answer, if practicable within 28 days of the sealed order, the following questions set out in the attached Reasons. The reasons are set out in full: “The Appeal is against a reconsideration judgment, the Respondents having sought a reconsideration of a judgment following an earlier remedy hearing at which an award of £100,887.49 was made, including £28,900 for psychiatric injury, after a 15% reduction. A number of issues were raised at the reconsideration hearing, and the majority were resolved in favour of the Claimant – that is, the original findings stood. However, in relation to an issue arising from the interpretation of the report of a jointly instructed expert, Dr Stein, the ET accepted that there was a degree of ambiguity in the report, and consequently reduced the award for psychiatric injury to £20,290. There was a consequential reduction in the interest that fell due. I share the Claimant’s difficulty in understanding clearly the rationale behind the reduction. This matter is inevitably going to be resolved by the same ET, if (as to which I express no view) it is held to be wrong in law that the reduction was made, or that inadequate reasons have been provided. Consequently, in the interests of saving time, the ET is requested to reconsider its findings in this regard and to explain them in greater detail. It is also asked to look at the Appellant’s contentions as to the calculation of interest and to consider whether the calculation has been correctly performed. This pursuant to the Burns/Burke procedure.”

[4]The Order of the EAT was not brought to the attention of the Employment Judge in this case until 24 August 2020. It was then necessary to convene a date when the original tribunal could convene with Members.

[5]This hearing was listed take place on Thursday 5 November 2020. Due to the fact that there was a confusion in the information sent to the parties, with a Notice of Hearing sent on 23 September 2020 making it clear that the parties need not attend and an email on 13 October 2020 saying that it was an “in person” hearing, the respondents attended but the claimant did not. It was unclear how this situation had arisen. The tribunal considered it unfair to the claimant to proceed.

[6]In addition, and most probably due to a change in the respondents’ solicitors, the respondents’ representatives who attended on 5 November 2020 were not aware of the EAT’s Order of 7 May 2020. The tribunal considered that they needed to be fully aware of this to understand the precise remit of the hearing and to prepare properly.

[7]For these reasons and with some regret due to the delays that had already occurred, this hearing was postponed until today. The issue for this hearing

[8]The matter remitted to us to reconsider and explain in greater detail therefore is in relation to our Judgment on Reconsideration on Remedy made on 2 September 2019 and is in relation to paragraphs 49-52 of that decision.

[9]In consequence this also requires consideration of our original decision on Remedy made on 15 February 2019 and paragraphs 83-90 of that decision.

[10]We are asked to reconsider our findings as to the reduction in the award for psychiatric injury to £20,290 and provide our rationale for it. Any change in that award will have a consequential impact on the interest calculation so we must also consider this. Interest calculations were carried out at previous hearings with the input of the parties. We have not been pointed to any specific error other than if the figure for psychiatric injury needs to be amended, the interest will also need to be recalculated.

[11]To the extent that there were submissions on any other matters, we confined our consideration specifically to the matters remitted to us by the EAT. Documents

[12]The hearing on 5 November 2020 was converted to a case management hearing. The parties were given the option to attend this hearing or rely on written submissions.

[13]All parties attended this hearing on 8 December 2020. Oral submissions were to heard supplementing the parties’ written submissions. These were fully considered even if not expressly referred to below. The original decision on remedy

[14]We made an award for psychiatric injury of £34,000 plus the cost of treatment at £5,000.

[15]We made a reduction of 15% based on our finding that there were some non-discriminatory reasons causing upset to the claimant but they were minimal.

[16]On reconsideration we reduced the amount for psychiatric injury to £20,290 being the bottom of the moderately severe range in the Judicial College Guidelines 14th edition which we also reduced by 15% for the same reason as above.

[17]It is this reduction to £20,290 and the rationale for it that is remitted to us for reconsideration/reasons. Our focus is on this matter. The submissions

[18]We make reference below to some of the submissions from the parties accepting that this is not the entirety of their submissions which were fully considered.

[19]The parties noted the ambiguity in Dr Stein’s report at paragraph 37.6. The second respondent reminded the tribunal of the Judicial College Guidelines Chapter 4 on psychiatric damage generally and the factors to be taken into account when valuing claims. These include: i. The claimant’s ability to cope with life, education and work ii. The effect on the claimant’s relationship with family and friends iii. The extent to which treatment would be successful iv. Future vulnerability v. Prognosis

[20]The second respondent accepted that based on Dr Stein’s report, the claimant “does have issues” with her ability to cope with life, education and work and the effect on her relationship with family and friends. The second respondent said that in relation to the other factors set out above, the claimant’s situation is “much more promising” as Dr Stein stated that “the way out for her is to get treatment”. It was accepted that the award we made for the cost of treatment has not yet been paid to the claimant.

[21]For the second respondent it was also submitted that the claimant did not meet the criteria for PTSD so that this should not have been taken into account by the tribunal.

[22]The respondents said they could see “no error in the tribunal’s calculation” in the decision on Reconsideration of Remedy. The claimant’s position (final paragraph of her written submission under the heading “Closure”) is that the original award on remedy was the correct one. The claimant raised other points but we confined our consideration in this hearing to the matter remitted to us by the EAT.

Conclusions

[23]Dealing with the second respondent’s submission that the claimant did not meet the criteria for PTSD we rely on paragraph 37.5 of Dr Stein’s report which clearly states “she fulfils the criteria for PTSD”. This was not questioned by the respondents in the expert’s report at the time the report was produced and our finding on this stands.

[24]On the submission that the claimant’s prognosis is that she will respond well to treatment, we took account of the fact that the respondents have not paid the award we made for the cost of treatment. This makes it difficult for the claimant to access the treatment she needs. Our original finding stands.

[25]The point in issue stems from the ambiguity in Dr Stein’s report where he used the words “moderate severity”. We reminded ourselves that we made a finding of fact in February 2019, our Reasons paragraph 85, that what he meant was “Moderately Severe” in terms of the classifications in the Judicial College Guidelines.

[26]We agree that on Reconsideration in September 2019, our reasons for the reduction in the award for psychiatric injury were insufficient. At that reconsideration hearing, we accepted the respondents’ submission that the ambiguity meant that we should reduce the award.

[27]On this reconsideration/remission from the EAT, we take the view that we should have placed more emphasis on Dr Stein’s expert opinion at paragraph 37.6 that he placed the claimant “roughly in the middle of this range”. What we did in September 2019 was to override that view and place her at the bottom of the range. It also weighed into our reasoning that when Dr Stein produced his report, the respondents chose not to ask him about this in supplemental questions. This was the point at which his expert view should have been challenged or clarity sought.

[28]For these reasons we accept the claimant’s submissions made at this hearing and we restore the original finding on the award for psychiatric injury with the interest calculation that goes with that. In regard to the interest calculation we were given no submission as to any error of calculation on the figures and we mention that when the interest calculations were done, this was with the input of the parties at the time so that the figure-work could be agreed.

[29]The final award to the claimant is therefore restored in the total sum of £100,877.49 for the reasons given in the decision of 15 February 2019. For the avoidance of any doubt the respondents are jointly and severally liable.

[30]The tribunal apologises for the delay in providing this decision, particularly given the request to do this within 28 days of the sealed Order form the EAT. For reasons doubtless connected to the pandemic, the EAT’s request for the ET to Reconsider this matter was not seen by the ET Judge until 24 August 2020 despite the EAT’s Order having been sealed on 7 May 2020. It then became necessary to reconvene with the Members as it was a three person decision and this required Listings to find a date suitable for the tribunal panel.

[31]Again for administrative reasons most probably connected to the pandemic, the parties had conflicting information as to whether the hearing on 5 November 2020 required their attendance and as the claimant did not attend and the respondents had attended, it was considered in the interests of justice to postpone to allow the parties to be on an equal footing. The tribunal regrets the delay that this has caused.