Ms M Shirin v Wilson Barca LLP and Others: 2208035/2016
EMPLOYMENT TRIBUNALS
Case No 2208035/2016
Between
Ms M ShirinClaimantWilson Barca LLP and OthersRespondent
Before
Employment Judge Pearl
Members
Mrs HJ BondMr J CarrollMs L Millin (instructed by Counsel) for claimantMs R Hodgkin (instructed by Counsel) for respondentDate 6 March 2019
JUDGMENT
The unanimous Judgment of the Tribunal is as follows:[1]The Claimant’s claims of harassment succeed against the First and Third Respondents in respect of age; and against the First and Second Respondents in respect of sex, as set out in paragraphs 61 to 70 of the Reasons.[2]The claim of direct discrimination related to her constructive dismissal fails and is dismissed.[3]All remaining claims, either of harassment or direct discrimination, fail and are dismissed.
REASONS
[1]By ET1 received on 1 October 2016 the Claimant, who states that the Respondent employed her as a “Paralegal/Office Assistant”, claimed age, race and sex discrimination. She claimed that she was employed from 2 November 2015 to 10 June 2016, although, as will be seen, the effective date of termination has been subsequently agreed to be later. She also made a claim for notice pay. The particulars are short. She alleged bullying and harassment against the three Respondents and also that she had been verbally abused. She said this behaviour had caused a mental breakdown and also physical injury.[2]The ET3s are equally short. Mr Barca, Senior Partner and Second Respondent to the claim, accepted that he had shouted at her and he says that this is because the Claimant repeatedly failed to follow his instructions.[3]On 23 December 2016 EJ Lewis sought to define the issues. The allegations of bullying etc were put under the head of harassment; and the alleged constructive dismissal was said to be direct discrimination and/or harassment, the Claimant lacking qualifying service to bring an ordinary unfair dismissal claim.[4]On 17 March 2017, the Regional Employment Judge at a further case management hearing recorded that “the Respondents accept that many of the incidents complained of occurred; they were running a ‘we treat everyone that way’ defence.”[5]On 28 March 2017, at the listed hearing, the matter was postponed and relisted. There was insufficient time to hear the case. The “core issues” were said by EJ Baty to be those at paragraph 2 of EJ Lewis’ order. There was also a long discussion on this occasion and the outcome was that the “list of incidents” was reduced in scope. “It was agreed that the actual allegations of harassment are those in the ‘List of incidents’ and that what is in the electronic diary is merely detail relating to those incidents and there is no scope for the ‘List of incidents’ to be expanded. For example, entry 1 of the ‘List of incidents’ is “Mr Barca shouted at me violently using profanity for not making his tea to his liking.” The electronic record gives details of precisely what Mr Barca is alleged to have said. However, the allegation is the shouting: there is no scope for widening this, for example, to a complaint that Mr Barca made the Claimant make tea; that she is female; and that a man would not be asked to make tea; which would be an allegation of direct sex discrimination not covered by the ‘List of incidents’.” The Judge went on to note in the next paragraph that for allegations of harassment, the alleged act has to be related to sex/race/age for the complaint to succeed. Mere unreasonable treatment is not enough.[6]In resolving the issues we have heard evidence from the Claimant; and from Mr Barca, Ms Rajananth, Mr Hall, Ms Rana, Mr Ali, Mr Sharif, Mr Canning, Mr Lo and from Mr Hall. We have studied a bundle of some 438 pages together with additional documents that were handed in. We should also note that the Claimant broke down on day two, 25 September, towards the end of her cross examination. She left the Tribunal and by agreement returned when Mr Barca had completed his evidence.[7]Turning to the effective date of termination, this was agreed to be 30 June 2016 up to and including the point at which Mr Barca completed his cross examination. After he had left, the suggestion was made by the Respondents’ counsel that he had dismissed the Claimant before this date and during the period of notice that she had given him. The suggestion was ultimately not pursued. The Tribunal explained that if any further application was to be made, for example to amend the ET3, it would have to be based upon further evidence from Mr Barca and an opportunity for him to be cross examined. After taking instructions, it was decided to take the matter no further.[8]We are not required to determine each and every factual dispute between the parties. What follow are our necessary findings in relation to the issues. It will be apparent that the case involves an overall allegation that the Respondents, and Mr Barca in particular, subjected the Claimant to intolerable levels of humiliation and abuse. Some of the alleged conduct is admitted. Concerning other items, we need to make factual findings. As to all our findings we need to determine whether the Respondent has by tortious acts breached the Equality Act 2010, as alleged.
Facts
[9]The Claimant is now aged 51 and she qualified in later life as a Barrister having taken a law degree. After some 2 years’ work in a solicitors’ firm she applied for the position Mr Barca advertised in his firm. The advertisement is at page 50. “We have a para legal vacancy that could lead to a training contract within 12 months.” This excited the Claimant as she was looking for a training contract. She was interviewed by Mr Barca and accepted the post. He told her, as is agreed, that he had temper issues.[10]This case revolves around the question of Mr Barca’s temper. It is not only agreed, but also an essential element in the defence, that he has a very short fuse, gets angry when he considers that things have not been done correctly and he shouts and swears. Before we turn to the evidence of the Claimant and others it is helpful to examine what Mr Barca himself told us.[11]In his witness statement, Mr Barca accepts that he shouted and swore at the Claimant. His reason for doing so is throughout said to be her inability to follow instructions. He denies the number of incidents alleged and their frequency. He says he shouts and swears at all his staff and also clients. When read closely against the Claimant’s allegations, it is clear that Mr Barca has only made limited admissions in the witness statement, but no point should be taken against him on this basis. The documents in the Tribunal file do not show that he ever saw the Claimant’s witness statement in advance of drafting his own and it is not adverse to Mr Barca that he omitted relevant evidence, because it is feasible that by 10 March 2017 (the date of his witness statement) he only had the December 2016 list of incidents compiled by the Claimant.[12]Nevertheless, in cross examination he gave much more detail as follows. He admitted that on the Claimant’s third day at work he had said to her “how fucking difficult is it to make a cup of tea?” This is not appropriate but he said this is “how I talk.”[13]Throughout his evidence, Mr Barca was at pains to deny using the formula “you fucking stupid”, which is an allegation that the Claimant makes throughout her own statement. He was less clear about calling her “fucking stupid.” In relation to the 5 November incident, below, he said he might have said this but thought that he had not. Later on in his evidence he agreed that he would have said on occasion “don’t be fucking stupid” and also: “on some occasions (but not all) when the Claimant’s alleges ‘you fucking stupid’ I would have used the words ‘fucking stupid’.”[14]As to the allegation that he called the Claimant “a stupid cunt” to her face, in January 2016, he said: “I don’t remember … I cant deny it, I don’t remember.”[15]The independent evidence was of considerable value. Mr Ali said in his witness statement that Mr Barca “sometimes shouts at me and other members of staff. I do not like this … ” He does not consider the shouting to be discriminatory. In cross examination he said that he had complained several times about Mr Barca’s behaviour. He thought that these letters of complaint could be construed as grievances. In C2, which he subsequently produced for us, we can see the following:- On 3 October 2011 he wrote to Mr Barca: “I do not appreciate at all, you have used F-language to me.” On 26 April 2012 he told the Partner Mr Wilson (who with the other and third Partner works at Archway): “Richard said fuck sake. I would like to have a meeting with you please.” 11 minutes later he recorded that Mr Barca “used F-words to me last week … I cannot work in this environment. I am really getting stressed … I cannot take this anymore.” On the same day, he put his complaint in writing to Mr Wilson. He asked him to speak to Mr Barca. On 1 November 2012, he made a written complaint to Mr Wilson that Mr Barca “shouted at me, abusive me, and used F-words …” On 15 February 2013, he wrote to Mr Barca: “I am taking my lunch now, you told me to fuck off. This is unacceptable behaviour. I will report this to David on Monday.” 51 minutes later he asked to go home because he was feeling sick and stressed. On 29 July 2013, Mr Barca wrote to him: “thanks you are doing well, I do appreciate your hard work even if I am shouting at you.” The next day Mr Ali complained in an email that Mr Barca “has been very abusive to me today, shouting, swearing and using F-words, this is unbearable behaviour.” He was stressed. On 30 September 2014, he said he did not want to go to the Soho Office where Mr Barca was: “… I would not like to mention reasons as you know, … whenever in the past I have worked in Soho I have very bad experience with Richard.”[16]In evidence he agreed that Mr Barca has said to him “you’re fucking stupid.” Once or twice he had called him “a fucking cunt.” It had not happened recently. He said Mr Barca shouts and swears at everybody. He gets stressed if he thinks people have made mistakes. His behaviour towards him is “quite unusual” and he had never met anybody like him in a working environment. (He has had four jobs in 24 years.) He accepted that some people might leave because of this behaviour and that some had indeed left. Mr Barca is unpredictable but can also be very nice if one does a good job for him, but when he loses control he gets annoyed and swears. Sometimes Mr Ali had warned new starters in the firm and he did say to the Claimant during her induction that she should not take it personally. Subsequently he saw the Claimant in tears and she told him that it was because of the abuse that she had received.[17]Ms Rajananth (“Lily”) says in her witness statement that Mr Barca has raised his voice to the Claimant more often than to any other Office Assistant or other staff and this was because of the number of mistakes that the Claimant made. Otherwise, her only reference to shouting is at paragraph 73. “There are times when due to stress, the Second Respondent gets agitated and has raised his voice and swears at myself and other fee earners, particularly Martin Hall who often works on his files. However, these incidents are quite rare and usually occur when the Second Respondent’s instructions are not followed immediately …” She also adds at paragraph 77 that she does not think that he shouts or swears at staff unnecessarily. In evidence, however, she said that other staff had left the firm and had complained about Mr Barca’s shouting and also his attitude. She agreed that calling somebody “a fucking cow” or “a fucking cunt” was unacceptable. She agreed that it is disrespectful, causes a terrible atmosphere and is humiliating for women. She insisted that Mr Barca treated men in the same way but went on to concede that his behaviour was “probably why women left – it was one of the reasons, there were others.” She also said she had never met anybody with a similar temper. “He has no control over his temper. People in the street can hear him. He calms down quickly.” One way she deals with the temper, over the telephone, is to put the receiver down. Mr Barca is very unpredictable. One man, Mr Winston, had left, she said, because of him. Overall, we find that when she drafted her witness statement, she sought to minimise the swearing and abuse.[18]We have letters in the bundle from Ms D (24 February 2010) and Ms M (28 September 2005). Ms D said: “my decision to resign … was not taken lightly, as I had to put my studies and my current situation first. Furthermore I tolerated your constant belittling because I admired the hard work you do as a Partner. I understand that you are under a lot of pressure but that doesn’t give you an excuse to bully your staff … I do not wish to make a complaint but I do feel that since my departure I am able to express myself easily without fear of intimidation from you. There is clearly institutionalised bullying within Wilson Barca LLP. You not only espouse vitriolic comments on a daily basis but I feel that you use your physical structure to intimidate the women that work for you. It is shocking that a man of your position would use ‘cunt’ around women without a second thought. It appears to me that your employees have been conditioned to accept your behaviour…” She added that he treated employees with utter contempt.[19]Ms M wrote in her letter: “I have been forced to write you this letter after a particularly humiliating and very upsetting day… the final straw…” She said that Mr Barca had spoken to her in a most unacceptable manner and was extremely rude. “I also have to put up with the abuse and shouting from Richard and often been drawn to tears on many occasions for a matter that has been blown up out of all proportion (as it normally is) and could have been solved quietly and nicely together.”[20]Mr Lo is a Consultant and has worked in the firm for over 20 years. He currently visits the office in Soho for three half–days a week. His witness statement makes no mention of Mr Barca’s behaviour but he told us that he swears and he has heard this “every two months.” He has been sworn at this year himself on two occasions.[21]Mr Hall’s witness statement is much more forthcoming about behavioural issues. Mr Barca has a short temper. “… normally brought on by employees making stupid mistakes or not following his instructions.” The Second Respondent has “repeatedly called me ‘fucking stupid’, a ‘fucking stupid cunt’, and shouted ‘for fucks sake, man’ ‘what the fuck are you/have you been doing’ at me during my employment, with particular frequency during the first six to nine months …” He has experienced similar things before and he has “a tough skin.” He agreed that “fucking cow” was not nice, but he did not think it was personal. He had been called a “fucking drongo.” He agreed that the Claimant was more sensitive to these things than he is. He also said that office assistants were more sensitive, as was Mr Ali.[22]From the body of evidence, and leaving aside all questions related to discrimination or harassment at this point, we find that Mr Barca is unusual in the shortness of his temper. He gets angry and he loses control when he suspects that his staff have been incompetent. His loss of control can sometimes be volcanic. He erupts into a torrent of abuse, liberally spiced with very bad language, as recorded above. He accepts that he was “flawed” in this regard. He has other sides to his personality and witnesses have said that he can be kind and generous towards others. He will praise good work. However, the violence of his outbursts has been amply demonstrated in the evidence that we have received. The Incidents[23]No 1, 4 November 2015. Page 185 is the Claimant’s “journal of work” kept on her computer but often compiled from her own notes or other jottings. The Claimant was told that her duties included making tea for Mr Barca. He did not approve of how she made the tea and he shouted “how fucking difficult is it to make a fucking cup of tea? You fucking stupid why can’t you get it into your fucking head.” We find that with the amendment of “you are fucking stupid”, these words were spoken, on the balance of probabilities. There is no real denial in Mr Barca’s witness statement and we have no reason to doubt that the journal is broadly correct. The words are in character for Mr Barca and his reference to tea– making as an assignment is something that generally corroborates the Claimant’s account. Mr Barca’s tea seems to feature prominently in the life of the office.[24]On the “you fucking stupid” debate, Mr Barca’s insistence that he did not use this phrase is, we find, semantically correct. However, we also find, with a high degree of certainty, that he called the Claimant and others “fucking stupid.” This was his way.[25]No 2, 5 November 2015, page 187. Beyond the point dealt with in the paragraph immediately above, there is no denial of the allegations. The Claimant went upstairs and piled up various files on Mr Barca’s desk. On his return, he called her up and said she was fucking stupid and carried on swearing in a similar way.[26]No 3, 12 November 2015, page 190. This is similar to the incident above and occurred when the Claimant raised an innocent enquiry about something that had to be posted, whereupon Mr Barca called her fucking stupid and repeated the swear word.[27]No 4, 16 November 2015, page 190. This follows a similar pattern with the Claimant being called fucking stupid, again in relation to filing.[28]No 5, 18 November 2015, page 191. We give a little more detail here as it is said to be race discrimination. The exchange started with Mr Barca asking the Claimant: “why didn’t you pick up the fucking phone when I called from outside?” The Claimant had a response to give but she says, not improbably, that she was not given a chance to speak because Mr Barca was shouting violently. He said “this is not a fucking fish and chips shop, this is a solicitors office, you fucking stupid. When phone rings, you pick up the fucking phone.” The response from Mr Barca is that he would have referred to a fruit and veg shop and not a fish and chip shop and he explained why he would have used that phrase in his statement.[29]The reason why the Claimant has maintained that this is a comment with a racial connotation is that Lily suggested that in a conversation that took place shortly after the incident. We deal with this in our conclusions.[30]No 6, 19 November 2015, pages 191 to 192. The allegation is that in relation to another work matter Mr Barca called the Claimant a “stupid melon.” He then said of the document: “why the fuck did you not read it immediately? How fucking difficult it is [sic] to bring the post upstairs? When a post comes upstairs immediately, don’t just sit there like a fucking stupid melon.” All of this is admitted save for the last three words and the only dispute is that Mr Barca says that he did not say ‘stupid’. We are not sure how he can remember this point of detail and although the disputed word is largely irrelevant we find that the words recorded by the Claimant at the time are accurate.[31]On the same day it is alleged that Lily called the Claimant “stupid” and “slow” and also said that she was too old for the job: “this is not a job for you, you are too old for this job. Marina was only 21 and she was very fast.” Marina was an office assistant before the Claimant.[32]No 7, 20 November 2015, page 193. There are two allegations here in relation to paying in procedures. Mr Barca is alleged to have called the Claimant “fucking stupid” and then swore again. Lily is alleged to have called the Claimant stupid and slow and also to have mocked the way she speaks. In this latter regard, the journal records her laughing when the Claimant pronounced a certain word; and also telling her that she had “curry tongue.” The Claimant, in her witness statement, gives further detail about this as follows: “she would make fun of my accent and say that I can’t say English words correctly, because according to her daughter Asian people have curry tongue and they can’t speak English properly.”[33]No 8, 23 November 2015, pages 194 to 195. There is a another allegation directed against Mr Barca that he swore at the Claimant again and it is likely to be correct that he said what is alleged at page 194. However, there are also allegations against Lily at page 195, that she called the Claimant “stupid”, “slow” and “clumsy”. She also is said to have told the Claimant she was too old for the job and that Marina was better. She said she did not understand why Mr Barca had not offered Marina a training contract. In cross examination Lily accepted this last comment and we understand that she accepts some other comments although she denies the ‘clumsy’ allegation. Nor did she accept that she called the Claimant too old for the job. These are very difficult disputes of fact to resolve. Because we have found that a fair proportion of the detail contained at pages 194 to 195 is correct, largely because Lily accepts it, we have come to the conclusion that the Claimant has also accurately recorded the other matters. Some of her tasks did involve a degree of manual dexterity, for example hole punching, and that is why the clumsy allegation has arisen. On balance we accept that she was told she was too old for the job. A matter that informs our findings here is that it is clear from Lily’s oral evidence that she did consider that the Claimant was inefficient and was not performing very well; and that she would not be offered a training contract. She herself told us that she is a bit of a perfectionist and that the mistakes being made by the Claimant were not minor. It is also relevant that she told us that: “I have a very strong personality. I say things bluntly sometimes. Perhaps I don’t realise what is right or wrong. I don’t know.”[34]No 9, 24 November 2015, pages 195 to 196, relates to a day of some crisis for the Claimant. Neither in her witness statement nor in the journal entry is any specific allegation related for this day. The journal states that Mr Barca was in a bad mood during that week and “I cried almost every day and felt pathetic. He treats me like a slave – the nitpicking, shouting, verbal abuse, name-calling …” She says that the shouting was “too much today and I felt totally drained for living this nightmare for last 3 weeks, always walking on egg shells, always terrified … It is just a horrible place to work … Today I decided to resign.”[35]The very short letter of resignation is at page 68 and says that she resigned because she could take his abuse no longer. Mr Barca sent a three word response accepting the resignation. We would make two further findings for the period immediately after the resignation. First, we accept that Lily, who accepted that she had told the Claimant about the resignations of previous women, and also the reasons why they left, is likely to have shown the Claimant the two earlier letters of resignation to which we have referred. The Claimant’s journal records that in the days after the resignation Lily was supportive and kind towards the Claimant. The Claimant’s witness statement goes into some more detail. On the balance of probabilities we consider that it was in this spirit that Lily told her about the reasons why other women had left. We are not persuaded that the Claimant would have known where to go on the computer system to find these letters. There is also other evidence in the journal that Lily was advising the Claimant to keep copies of documents. In the context of the Claimant having just resigned, it is likely that Lily was drawing her attention to these previous resignations. We also consider it unlikely that Lily, who was Mr Barca’s personal assistant, a longstanding employee and a linchpin of the firm’s administration, would not have known where to find these letters on the system. Finally, there is an express reference in the journal, at page 198, to Lily showing the Claimant resignation letters.[36]It is evident that the first week of December was also difficult for the Claimant and her journal entry for that week refers to her perception of never having experienced such harassment and bullying before. She alleges that Mr Barca shouted at her every day, she was terrified by the shouting and name-calling and she says that she is glad to be leaving. The allegations in this week are that she was called fucking stupid again. Mr Barca used the same swearword in relation to documents and swore at her, calling her fucking arrogant and so forth. The further detail can be read on page 197. It is of note that Lily is said here to be supportive of the Claimant and she records the conversation, which has every appearance of being contemporaneously noted, in which Lily made some joking comments to the effect that she would not call an ambulance if Mr Barca had a heart attack. She told us that she may have said something like this. We also note that for this first week of December 2015 there is little or no corroborativee evidence of any offensive comments made by Lily.[37]For the second week of December, there are similar allegations in relation to swearing made about Mr Barca and the swearing is again work-related and includes his annoyance about keeping papers in the wrong file. There is an allegation here that Lily still calls the Claimant stupid, clumsy and slow, but this needs to be read with the express recording of Lily being very worried about the Claimant’s financial situation; and suggesting that she ask Mr Barca to let her work until a replacement had been found. The overall tone is that Lily was being supportive of her.[38]This is consistent with what Lily did at around this time. She records that she sent an email to Mr Barca saying that the Claimant had not found another job and asking whether he would continue to employ her. He agreed. In consequence, the Claimant wrote the email at page 269 on 18 December 2015 in which she thanked him for giving her another chance to work with him. She said: “all I need is you to be a bit kind towards me as you have been to me during the past few days.”[39]By the second week of January (Issue No 12) the Claimant is alleging that Mr Barca shouted at her again and swore and also that Lily had called her derogatory names and compared her with the previous office administrator. It is not easy to match up the witness statement, which is not always chronologically coherent, with the Claimant’s journal. Some of the allegations appear to relate to mid-January, or thereabouts, and we specifically refer to the occasion when Mr Barca made the Claimant repeat the name ‘O’Sullivan’ a number of times. He does not deny this. The swearing by this point had been continuing and it appears that the Claimant was alleging at the time that Lily was calling her stupid or slow and also saying that she was too for the job.[40]It was during the third week of January 2016 that Mr Barca called the Claimant “a stupid cunt” and carried on swearing in his customary manner. Apparently, the Claimant on this occasion shouted back at him and at some point she called him stupid. The allegations for this week in January against Lily are put on a generalised basis of name-calling.[41]This led to a letter being written to Mr Barca by the Claimant on 29 January 2016 at page 276 to 277. She noted that she was approaching three months from the start of employment and that this was the probation period. She said that he was a great teacher and she would be happy to stay on if he wanted her to but then, perhaps a little bizarrely, and we find in the light of the various matters we described, she made some proposals. First, she asked for the notice period to be reduced to one month, three months was oppressive. Second, she asked for a ‘burnout bonus’ as she had to remain on high alert at all times because “of your temper issues. It is like living in a war zone. The job holder is always under extremes stress … I would ask for a £800 per month burnout bonus to compensate this.” Third, as she was the butt of most of his shouting, and his extremely volatile temper caused her mental turmoil and stress, she suggested a penalty for every occasion when he either mistreated her or acted unreasonably. This would be from £50£250 on each occasion. “I will spend the money to cheer up myself to forget the trauma. This will also give you some incentive to manage your extreme temper.”[42]The third week of January is dealt with in Issue No 30 and we note that the week ran from 18 to 22 January. We have referred to the particularly offensive comment made to the Claimant in paragraph 40 above. There is no allegation that Lily made age-related comments to the Claimant during this period, either in the journal or in the witness statement.[43]The fourth week of January, 25 to 29 January, is summarised in issue 14. There are no allegations against Lily in the witness statement or the journal and it is not clear whether any allegation is being made against Mr Barca. In our view, the summary of allegations in issue 14 have not been made out.[44]Issue No 15 in the list of issues has generalised allegations against Mr Barca and Lily for the third week of February 2016 which ran from Monday 15th to Friday 19th. The cross-reference is to the Schedule at page 389 and refers to the entry in the journal made on 21 February which is chronologically consistent with the above. We note that the Claimant says that both Mr Barca and Lily were swearing and using the “F word”. “However I must accept that things are better now than it was before” and this is because “Richard has called me derogatory names less number of times since I set penalty on him.” She says that the penalties were working, although there is no evidence that Mr Barca ever agreed to the same, and the prosepect of his having agreed is remote. As to Lily, the journal contains many allegations against her, including swearing, but little that connotes age, except “she also compared with Marina” where the context is the time that the Claimant and Marina each took to make a cup of tea. There is no age-related comment alleged, in our view, and none is referred to in the summary in the list of issues.[45]Issue No 16 is the fourth week of February, i.e. 22nd to 26th. The short description in the list of issues is: “Mr Barca shouted violently one occasion, Mrs Raj called me derogatory names every day.” The journal entry, pages 212 to 213, detail shouting by Mr Barca; “obnoxious” behaviour by Lily, but no age-related comment.[46]Issue No 17 is the first week of March and the list of issues alleges agerelated comments by Lily. The journal entry, made on 6 March, states that Lily asked another employee: “Marina was young and very fast was she not? “And then added that Marina “was so good. I just don’t understand why Richard did not offer the Training Contract. Poor girl!” This allegation is also contained in the witness statement but is said to have occurred during the last week of February. Other than this, there is no other allegation against Lily beyond calling Claimant names as ususal. A particularly “horrible” act is said by the journal to be an exchange that the two women had about some emails.[47]Although the Marina comment is denied, we can see no indication that the Claimant has made this up and we consider that the comment was made on the balance of probabilities. As to whether or not this constitutes tortious harassment, we will turn to this in our conclusions.[48]Issue No 18 is the second week of March, which is 7 to 11 March 2016. The summary list of issues is that Mr Barca shouted violently; and Lily called the Claimant derogatory names “every day” and compared her negatively with a previous office administrator. We note in passing that the claim that derogatory names were used every day is a formula that appears throughout the list of issues.[49]The journal entry made on 12 March details no age-related comment at all, although Lily is said to have been obnoxious (an example is then given about a word that the Claimant was thought to have mispronounced.) The Claimant also says that there is good news, in that Mr Barca now called her by her name and was being “rather nice for last 2 weeks.” She also said that she almost felt happy this week.[50]Issue No 19 relates to the 3rd week of March, 14th to 18th. This alleges that Lily made fun of her accent, but the journal says that this happened the week before, as noted above. There is no allegation against Mr Barca.[51]The next issue, No 20, is almost 3 months on and is dated 1 June. However, there is a considerable amount of background evidence in the witness statement that bridges these two dates, between paragraphs 88 and 107. A relevant date is 24 April when she states, as we find happened, that Mr Barca called her a stupid cow before completing his criticism of her with the usual four lettered swearing. The Claimant states in her witness statement that by May she was at the end of her tether, but the journal does not support this chronology. On 4 May she recorded that Mr Barca did not shout much at her nowadays and that she had found a way to keep him calm. She even spoke about a nice part of him which comes out when he is not grumpy. Although there were ups and downs, by 18 May she was recording that she feels settled and confident in the job and that Mr Barca is nice when he does not shout. She had a short break and returned on 31 May and said it felt good to be back at the office; Mr Barca was nice and did not shout that day. Even Lily “was a bit better.” She thought Mr Barca might be changing.[52]This all went wrong again the next day, 1 June, when she was shouted and sworn at about alleged mistakes she had made. This was the last day at work and it ended with her writing a letter of resignation at 11:36 am, page 295. “I think I have had enough. I can’t take it anymore I am resigning. I am giving you four weeks notice you never done my end of probation review. I finish here on first of July.”[53]A letter to which we were not taken is the Claimant’s letter to Mr Barca dated 2 June at pages 85 to 87. We note the following points. First the allegation that he called her a melon is said to have occurred once. Second, she states that Lily called her names including stupid, dumb and slow, “continuously for first 4 months. When I protested and told her not call me names, she stopped but now treated with extreme hostility.” She says that they had not been on speaking terms for about two months. Third, she referred to the incident the day before and said that “… You exceeded even yourself and shouting and I lost it too … I don’t like this kind of incident. It makes me physically ill.” She says it is better therefore that she leaves but if he wanted to stay they will have to have a meeting and discuss the issues in detail.[54]The Claimant refers to having had a form of breakdown on 1 June. The medical evidence (and again we were not taken to this) appears to indicate that the only GP visit that is relevant to the chronology we are considering was on 3 June when she told the GP that she was keen to take medication for anxiety. She referred to bullying and abuse by her boss. There are then approximately another 23 visits between that date and the end of August. She was diagnosed with anxiety with depression.[55]On 10 June the Claimant received a P45 through the post and she emailed Mr Barca. She said that her contract been terminated on that day. He responded (page 91) by saying that she had given notice to leave and that he had not terminated the contract. She replied that the original notice ended on 1 July to which he said that she had been absent without a sick certificate. As we have earlier noted, the formal position in the tribunal is that it is accepted that the Claimant’s employment ended on 1 July pursuant to her notice.[56]The claim or claims made against Martin Hall, the assistant solicitor, appear only to relate to issue No 14. Although his name might appear to be incorporated in the next three matters, in which the people involved are said to be ‘same as above’, there are no allegations there against him and there appear to be no relevant allegations in the more detailed evidence that is put against these issues in the Schedule. The Respondent has identified nothing additional in the final submissions. However, Ms Millin in her final submissions, at paragraph 23, has said that the First Respondent is vicariously liable for the behaviour of Mr Hall because he gave the Claimant too many instructions and too much work, and then only agreed to see her on one occasion as he was busy. Furthermore his comments and behaviour also created a hostile atmosphere at work.[57]In the case of Mr Hall we are faced with rank confusion.(a) The factual matter at Issue 14 is pressurising the Claimant to obtain receipt for files lodged at the county court.(b) The evidence referred to in the Schedule at page 381 is something different, namely berating the Claimant about leaving a page of a document on the photocopier. The final submissions then add(c) giving the Claimant too many instructions and(d) only seeing her when he was busy, as well as(e) creating a hostile atmosphere. This is an unsatisfactory way to present issues for which it is said that the First Respondent is vicariously liable. However, we note that during the hearing we were taken to pages 284, 290 and 289 which seem to touch on some of these issues. There is nothing in Mr Hall’s communications on these pages to suggest that he was writing in an inappropriate or rude manner to the Claimant.[58]During the course of the evidence a short dispute arose between the parties which can be summarised as the “One Source” issue. This concerns whether either the Claimant or Lily, or both of them, were responsible for the destruction of some documents that arrived in the post. In our view it is unnecessary to set out the detail of this dispute and it suffices to state our overall conclusion. On a consideration of all of the evidence that the parties gave to us, and also the relevant documents, we conclude that this is one of those uncommon factual disputes where the tribunal has no means of knowing with any degree of reliability what actually happened. The account given by each of the protagonists is equally likely to be correct or, put another way equally open to criticism. We have been able to find no evidence or analytical tool that permits us to make a finding based on what is more likely than not to have happened. We are unanimously of the view that no finding can be made that either assists or is adverse to either party.
The Law
[59]Section 13(1) of the Equality Act 2010 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. Race is a protected characteristic. Section 23(1) provides that: “On a comparison of cases for the purposes of section 13 … or 19 there must be no material difference between the circumstances relating to each case.” Section 27 of the 2010 Act in its material part provides that A victimises B if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. Section 26 provides that “(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)n the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.” Section136(2) 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. It is then provided that this subsection does not apply if A shows that A did not contravene the provision. This provision is mirrored in the antecedent legislation and there is no discernible difference in statutory intent. As to burden of proof, the older law in Igen Ltd v Wong [2005] IRLR 258 still applies and the guidance is as follows (all references to sex discrimination apply equally to all the protected characteristics): “ (1) Pursuant to section 63A of the Sex Discrimination Act 1975, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of section 41 or 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as ‘such facts’. (2) If the claimant does not prove such facts he or she will fail. (3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’. (4) In deciding whether the Applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (5) It is important to note the word ‘could’ in section 63A(2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. (6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. (7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the SDA. (8) Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining such facts pursuant to section 56A(10) SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice. (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive. (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.” There was further analysis of the burden of proof provisions made by Elias J in Laing v Manchester City Council [2006] IRLR 748, as well a reconsideration of burden of proof issues by the Court of Appeal in Madarassy. This case has confirmed the Laing analysis. In particular, we refer to paragraphs 56 to 58 and 68 to 79. Paragraph 57, in relation to the first stage analysis, directs us to consider all the evidence. “’Could conclude’ … must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.” All the evidence has to be considered in deciding whether there is a sufficient prima facie case to require an explanation. Submissions[60]There were relatively short submissions from counsel and we will return to some of these below. Conclusions Harassment
Conclusions
[61]Ms Millin makes a series of submissions about the acts of harassment, but they reflect one of the prime difficulties for the Claimant, which is that the unwanted conduct under section 26(1) must be related to a protected characteristic. On the detail of the case, she refers to “fucking cow” comments (paragraphs 18 and 19 of the submission) and comments related to age and, arguably, race by Lily (paragraph 22). Otherwise, Ms Millen makes generalised comments about the effect of the unwanted conduct. She further submits that we might have to follow the EAT decision in Efobi. We do not think she has correctly characterised that case but, in any event, it has now been superseded and can be safely ignored. A further questionable submission is that discrimination can be inferred from unfair or unreasonable behaviour. The established law is that such behaviour alone will not be the basis for a finding of harassment or discrimination.[62]Ms Hodgkin’s submissions include the following.(a) The incidents of harassment are not related to protected characteristics.(b) A formal two stage test involving the reverse burden of proof is not always necessary.(c) Everyone was treated rudely by Mr Barca.(d) The claim of discriminatory constructive dismissal fails if the treatment was discriminatory.[63]There is no question that the Second Respondent’s behaviour was unconscionably boorish. It is, nevertheless, a fair assessment of the evidence that he “treats everyone rudely if they make a mistake”, as Ms Hodgkin submits, using a certain degree of understatement. It is the Claimant’s misfortune that she found herself in such an offensive environment, but the essential question for all the harassment claims is whether the unwanted conduct related to a relevant protected characteristic. For the most part, it did not. To give an example, calling the Claimant “fucking stupid” does not relate to her gender and the evidence is that anyone in the office whose conduct fell short of Mr Barca’s standard received the same abusive description. It is indefensible, grossly offensive, relevant to a claim for constructive unfair dismissal, but it is not harassment in law.[64]The consequence is that this will dispose of all the harassment claims, save where there is a comment, abusive or otherwise, which amounts to “unwanted conduct related to a relevant protected characteristic”. The burden of proof has nothing to do with this: the conduct either is or is not so related. If it is, we then go on to consider the remainder of section 26.[65]The fifth incident, paragraphs 28 and 29 above, has nothing to do with race. The suggestion of any racial connotation only arose because of something suggested after the event to the Claimant by Lily, which in itself is hard to fathom, as it relates to a notion that Asian people would be more likely to work in fish and chip shops. Looking at the plain words uttered, and regardless of the nature of the shop that Mr Barca was referring to, the unwanted conduct was not related to race.[66]In relation to the ‘curry tongue’ allegation against Lily, this is a relatively slight and vague allegation that appears to be Lily retelling something her daughter said. Both here and in the other allegation relating to the Claimant’s accent, there is no basis for a finding that the any hostile environment was created for her, or could reasonably have been thought to be created.[67]The various claims that Lily mocked the Claimant for being either too slow or too old or not as good as the previous, younger assistant start at the sixth incident, paragraph 31 above. We have found these factual allegations to be made out. There is a pattern of such remarks and the Claimant recorded some of them at the time. Her evidence about these comments is secure, at least where she has set out some detail.[68]Associated with this general denigration of the Claimant on the ground that she was either to old, alternatively not as efficient as the younger comparator, are the allegations against Lily under No 8 (paragraph 33 above); and the somewhat more generalised allegations under No 12 (paragraph 39 above); together with No 17 (paragraph 46 above.) At paragraph 37 we recorded even more generalised age -related allegation against Lily (December 2015) but we noted that the context is that Lily was being supportive of the Claimant. We do not accept that the remarks reasonably had the effect that is prohibited by section 26. In paragraph 44 (February 2016) the allegations against Lily are largely not age-related. In paragraph 48 we note that derogatory abuse is alleged against Lily but, again, in generalised terms.[69]We accordingly consider that the age-related harassment is made out in respect of numbers 6, 8, 12, and 17 only. These comments were related to age. They had the effect of creating a degrading or offensive environment for the Claimant. It is reasonable for the Claimant to have formed the view that it had that effect, indeed it seems to us obvious that the effect of these comments was to demoralise her. We reject the submission that she was oversensitive to an extent that put her outside the statutory protection. In our view, Lily was prone to make intermittent criticism related to the Claimant’s age which falls within the provisions of section 26. Where the age allegations made by the Claimant otherwise appear, we have concluded that the evidence is too imprecise or generalised for her to succeed in establishing tortious conduct.[70]Mr Barca was unrestrained in abusing employees. The instances where he engaged in unwanted conduct related to gender are two: where he called the Claimant “a stupid cow” (24 April 2016, paragraph 51 above) and “a stupid cunt” (January 2016, paragraph 40.) There is no question that these remarks had the effect of creating a degrading and hostile environment for her and no defence can be raised on the basis of the reasonableness provision of the section.[71]We deal with the claims of harassment made against Mr Hall in paragraphs 56 and 57 above. The Claimant has failed to adduce, or point to evidence on which any finding of harassment could be based. His conduct did not have the effect of creating a hostile etc. environment and it was not reasonable for the Claimant to come to that view. The constructive dismissal[72]This is said to be direct discrimination, although it is possible that there has been a misunderstanding of the law by Ms Millin. She has not addressed the discrimination aspect at all in her written submission, but instead notes section 39(7)(b) which provides that dismissing an employee, within the terms of subsection (2)(c), includes “an act of B’s (including giving notice) in circumstances such that B is entitled, because of A’s conduct, to terminate the employment without notice.” This, of course, is a reference to constructive dismissal, but it is not a free standing right to claim discriminatory constructive dismissal. Such a claim of direct discrimination still has to be brought within the terms of section 13. Ms Hodgkin also deals with this fleetingly in her written submission, but she makes the important point that the constructive dismissal claim (as she calls it) must fail if the treatment of the Claimant is not found to be discriminatory. In paragraph 2 of her written submission she submits, in effect, that the tribunal must first decide whether there is a constructive dismissal on usual principles; and then decide whether the resignation was as a result of the discrimination in any real causative sense. She submits that the test is: “did it play material part in any breach in response to which, if found, the Claimant resigned?” We consider that this is the correct test.[73]The conduct of the Respondent and, preeminently, Mr Barca, unquestionably, in the view of the tribunal, amounted to repudiatory conduct, or fundamental breach of the implied term of trust and confidence. In the chronology we have noted the gaps get between: (a) approximately 18 March 2016 and 24 April; and 24 April and 1 June. Our conclusion is that the final incident of swearing and shouting on 1 June was the reason why the Claimant resigned. She says that she had some sort of breakdown on this day and was clearly ill enough with anxiety to visit the doctor two days later. This mirrors her first resignation, when she said she was resigning because she could take the abuse no longer.[74]Section 95(1)(c) brings in the concept of constructive dismissal and the Western Excavating v Sharp principle. This is that there must be a breach going to the root of the contract (a repudiatory breach) by the Respondent; the employee must leave in response to the breach, without affirmation, waiver, or undue delay. Employees are further entitled to rely upon the “last straw” doctrine and the Respondent correctly draws attention to London Borough of Waltham Forest v Omilaju [2005] IRLR 35 which also refers to a much earlier Court of Appeal decision, Lewis v Motor World Garages Ltd. Dyson LJ began by setting out the implied term: ‘That the employer should not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.’ The test of whether there has been a breach of the implied term of trust and confidence is objective. In this regard, Lord Nicholls’ speech in Malik v BCCI [1997] IRLR 462, 464 is apt: ‘The conduct relied on as constituting the breach must impinge on the relationship in the sense that looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.’[75]A relatively minor act may be sufficient to entitle the employee to resign. Some of the series of acts may be quite trivial but cumulatively the acts taken together must amount to a breach of the implied term. The final straw act does not have to have the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant so long as it is not utterly trivial. The final straw used in isolation need not be unreasonable or blameworthy conduct. If the act relied upon is entirely innocuous, it cannot be a final straw, even if it is so interpreted by the employee. The test of whether the employee’s trust and confidence have been undermined is objective. These principles are taken from the headnote in Omilaju in the IRLR.[76]We conclude that this is a classic case in which the Omilaju principles apply. There had been a long accumulation of abuse of the Claimant, during the course of which some tortious acts can be identified in terms of harassment. However, after some gaps in the chronology the Claimant finally snapped, and her health went into decline, on or after 1 June 2016. Taken in conjunction with all the earlier acts there was a breach of the implied term of trust and confidence. This was therefore a last straw, in the sense recognised in employment law, and the Claimant was entitled to resign and claim a constructive dismissal.[77]Where the discrimination claim fails is that it has not been established, and we are unable to conclude that the resignation was the result of the harassment or was otherwise because of the protected characteristic of gender. The catalogue of abuse and swearing directed at the Claimant was substantial and relatively prolonged, over a period of some months. It was this that, in our view, finally ground the Claimant down. That there were acts of tortious harassment along the way does not mean that her resignation and constructive dismissal were because of gender (or age). These incidents and the protected characteristics were incidental to the real reason for which she resigned, which was the constant barrage of abuse, principally from Mr Barca, and most of which did not infringe the Equality Act. We would, accordingly, hold that the constructive dismissal was not an act of direct discrimination. To the extent that any claim of harassment is being made, this must fail, as section 39 does not apply to harassment. In any event, on our findings there is no possibility that harassment could apply to the resignation.[78]It follows that the Claimant succeeds only in respect of the harassment related to sex and also harassment related to age, as identified above. There will be a need for a remedy hearing unless the parties can agree terms. We would invite them to submit their proposals in terms of directions within 14 days of receiving this judgement. If a telephone case management hearing is required, they need only ask for it.
Conclusions
[1]The Respondents shall pay to the Claimant for injury to feelings the sum of £46,908.38, inclusive of aggravated damages (£5,000) and interest. All other claims fail.
Conclusions
[1]This was the Remedy Hearing, the decision on liability having been promulgated on 6 February 2018. It is important to note at the outset that the Second Respondent’s behaviour towards the Claimant during the course of her employment, which lasted from 2 November 2015 to 10 June 2016, was in many respects offensive. However, the Tribunal upheld the claims of direct discrimination only in limited respects. Although the environment was offensive, we accepted that the Second Respondent treated everyone in the office poorly, particularly if he considered that they had made a mistake: see paragraph 61 of our conclusions. We said that “… the essential question for all the harassment claims is whether the unwanted conduct related to a relevant protected characteristic. For the most part, it did not”. The example that we immediately gave there was that calling the Claimant “fucking stupid” did not relate to her gender and; we accepted that anybody who Mr Barca thought had made some form of error would be subject to the same behaviour. As we observed, such abuse directed towards employees was “indefensible, grossly offensive, relevant to a claim for constructive unfair dismissal, but it is not harassment in law”. (Paragraph 63). This is an important preliminary consideration and we will return to the detail of what we found to be actionable and tortious behaviour.[2]As to constructive dismissal, we had no difficulty in finding that the conduct complained of overall amounted to repudiatory conduct. We noted the gaps in the chronology between about 18 March 2016 and 24 April and also between then and 1 June 2016. We concluded that the final incident of swearing and shouting on 1 June was the reason why the Claimant resigned. In terms of constructive dismissal, we said that this was a classic Omilaju case and that there had been a long accumulation of abuse of the Claimant. During the course of that abuse some tortious acts could be identified in terms of harassment. We concluded that there was a breach of the implied term and that what happened on 1 June was a last straw that entitled the Claimant to resign. Nevertheless, we were unable to conclude that the resignation was the result of the tortious harassment or was otherwise because of the protected characteristic of gender. “The catalogue of abuse and swearing directed at the Claimant was substantial and relatively prolonged, over a period of some months. It was this that, in our view, finally ground the Claimant down. That there were acts of tortious harassment along the way does not mean that her resignation and constructive dismissal were because of gender (or age). These incidents and the protected characteristics were incidental to the real reason for which she resigned, which was the constant barrage of abuse, principally from Mr Barca, and most of which did not infringe the Equality Act. We would, accordingly, hold that the constructive dismissal was not an act of direct discrimination”.[3]We omit making any further reference to the troubled and disputatious interlocutory correspondence between the parties that took place between the liability and the remedy hearings. There were at least five case management discussions and the correspondence with the Tribunal was voluminous. We can safely say little more about this because at the outset of this Remedy hearing the evidence was more or less in order, in that the Claimant had produced a witness statement; and there were two reports from the expert psychiatrists, one for each party. By the time the Claimant came to give evidence on the second day it was confirmed that neither party was seeking any further postponement.[4]It was explained to us that the Claimant had compiled her own witness statement for the Remedy hearing. In paragraph 3 she stated: “All my life, I was a very healthy and resilient person with the determination to achieve something big and live a life with dignity”. She set out, justifiably, that she was proud to have qualified here as a barrister, having come to the UK in 1989. The Claimant refers to degrading and humiliating comments from the Second and Third Respondents in a very short paragraph of one sentence. She then refers to a mental breakdown that occurred at about the time of and following her resignation. She states that her relationships with her family were affected and that both she and her daughter had been caused what she terms serious psychological damage. “Since I resigned I have spent most of my time in bed suffering from PTSD, vertigo, anxiety, depression and asthma”. Elsewhere in this statement she refers to being the “punching bag” for Mr Barca, Lily and her colleague Martin. She says they “used their power, darkness, rage and rigidity to torment me to the point to a mental breakdown on 1 June 2016”. She also refers to having suffered fear and stress for seven months, 24 hours a day. She cried every day and was terrified. Her current life is now “worse than death”. Other aspects of the written statement will be referred to later on in these Reasons.[5]In the Claimant’s schedule of loss, she claims five years future loss of earnings at £50,000 per year and a further ten years future loss at £60,000 and these sums total £850,000. She claims £40,000 for injury to feelings, aggravated damages in an unspecified sum and personal injury in the sum of a little over £88,000. Therefore, her claim before grossing up is in excess of a million pounds.[6]We begin by referring to the relevant evidence that was given by the Claimant in cross examination. She confirmed that after she started writing a journal, she often made entries on a weekly basis. She says that she started drinking in about December 2015 or January 2016. She did not drink every night. Once she got very drunk. Her consumption increased to two or three bottles a week plus some Strongbow. We accept this and consider that the reference in medical notes to two or three bottles a day is a clerical mistake.[7]She then confirmed that the Third Respondent, Lily, was often very friendly towards her and at the outset they got on well. It was the Second Respondent’s behaviour that was putting her under stress. Even after November 2015, when Lily called her names, she still regarded her as a friend. She repeated something she had told us during the liability hearing, which was that she could not please both Lily and Mr Barca. We recall from that hearing that this was because in some instances the two of them had different notions about how things should be done. She also added that it was a very complex situation and “they all had hatred to each other”.[8]We would at this point note that the dynamic within the office was in all respects stressful and that it is not simply a matter of the comments that were directed at the Claimant. They were not the only cause of stress. In our opinion, having heard all the witnesses, there were other tensions and rivalries and it all amounted to a picture that was, indeed, complex. For example, it is evident that Mr Barca and his assistant Lily were often at loggerheads. It is also clear that others within the office had their problems with Mr Barca and sometimes he with them. The Claimant was, therefore, caught up in an inherently unstable and stressful environment.[9]It also emerged in cross examination that the Claimant’s relationship with Lily Raj was complex as they often seemed to get on well and enjoy each other’s company. Nevertheless there were incidents when the Claimant found her behaviour to be hostile. The Claimant at one point said to us “she was very nice but pushy”. In any event, there were comments made to her by Lily which, as we have found and confirm, clearly caused the Claimant upset and distress. Mr Barca was a different proposition, in that she alleges that she was treated very badly on many other occasions than those that we said constituted harassment. For example, of the name calling, the Claimant stated that back in Bangladesh people do not even treat their maid servants in that manner. “I cried a lot and could not tell anyone. I felt so humiliated. Why was I treated worse that a maid servant?” It was also put to her that Mr Barca’s behaviour had a cumulative impact upon her and she accepted this, saying that throughout the period he called her fucking stupid and that she found this very humiliating and insulting. The shouting was offensive as well. She said he even shouted in emails. He was patronising her and threatening her.[10]When it came to 1 June 2016 the Claimant agreed that she had a panic attack because of the general abuse that she was receiving and that this led to her resignation. When giving further evidence about this she confirmed that there was a lot of shouting and so forth that the Tribunal has said was not discriminatory. She said that “it all worked together … combined together I became sick. Stupid – he was calling me this every day. It crushed me. I was not the same person since 1 June. I could not take it anymore”. When the Claimant resumed her evidence in February of this year, she said at one point: “This treatment, continuous treatment, was degrading and humiliating. I then broke down.” We also note that in talking of this incident, which was the final rupture with the Respondent, the Claimant records a conversation with Lily in which the latter had been sympathetic towards her. This confirms our conclusion that she had a hot and cold relationship with her, whereas the relationship with Mr Barca was generally poor.[11]The Claimant was called to the Bar in July 2016 but she had made a decision before then to convert to being a solicitor. She thought this was a better course given her age; she also liked the way solicitors worked and she had been working in a solicitor’s firm before she came to the Respondent. Mr Barca said that she may be taken on as a trainee if she had a successful year. This evidence conflicts with her written statement which records a promise by Mr Barca to offer a training contract. The Claimant’s oral evidence was contradictory on this point and she seemed to be uncertain when she was giving her testimony in cross examination. We think it unlikely on the balance of probabilities that there was any form of promise. Nevertheless, her belief was that she would have qualified as a solicitor by 2019.[12]When the Claimant resumed her evidence on 5 February, the parties and the tribunal had the benefit of the further GP notes that had been ordered some 7 weeks earlier. The main point we note is that the Claimant was on antidepressant medication for most of the period from August 2007 to March 2011. This means that she was on the medication for a total period of about 7 years up to that last date. The psychiatric evidence[13]There is expert psychiatric evidence from both parties. It is voluminous, but there are limitations to the assistance that the psychiatrists have been able to provide. This is partly because they have said little about the principal issue of causation that we must deal with. Second, they have fallen into disagreement about the classification of the Claimant’s condition. Dr Brow, called by the Claimant, diagnoses PTSD. Dr Mannan believes that the threshold for PTSD has not been met. Additionally, he doubts the Claimant’s bona fides and has suggested she is malingering, within the meaning of that term when applied to PTSD cases in the literature. We can also detect a methodological difference, in that Dr Mannan is less willing to accept facts that have no objective corroboration. An illustration of their evidence can be seen when they discussed the Claimant’s accounts of having hallucinatory experiences. Dr Mannan relies on her insight in understanding that they were not hallucinations and he therefore doubts that they qualify under diagnostic criteria. Dr Brow says that when they were first perceived, they seemed real and it is only as the Claimant examined them that she realised they did not exist. They are therefore hallucinations, in his view. The tribunal cannot adjudicate on this difference of expert opinion.[14]Dr Brow, in paragraph 15 of his report, recognised that the claim only succeeded “in relation to a number of specific incidents of harassment” and he set them out. He referred to the GP’s note of 3 June 2016 that recorded her complaint that “ … her boss … had intimidated her, shouting, bullying and abusing in her workplace … symptoms … subsequent to these experiences.” He noted an employment advisor writing after 6 September 2016 of “past incidents of bullying and harassment” having an effect on the Claimant’s life. Another employment advisor subsequently wrote of “ … her previous employer whose behaviour towards her caused her to have a breakdown from the bullying and pressure he imposed on her.”[15]The Claimant told Dr Brow that her biggest mistake was to work for the Respondent. Within three days of starting she had been shouted and sworn at. “She suffered verbal abuse and felt at the mercy of her boss and his assistant” (paragraph 233.)[16]Dr Brow’s diagnosis was Comorbid Severe Depression with Psychotic Symptoms and Complex PTSD. When dealing with causation, he wrote that the Claimant was vulnerable to emerging PTSD and depression. He then briefly summarises the comments that we found constituted torts and said: “ … on the balance of probabilities these abusive terms in the context of her moral and cultural background, the sexual abuse she suffered previously, and high anxiety due to the stress of the job, lowered her self-esteem and culminated in triggering latent PTSD from previous catastrophes in her life; this subsequently produced increasingly severe depression as she tried to fight and maintain her position. She saw Mr Barca as yet another abuser in her life.” He also says that she felt targeted throughout her employment. Given the weight of allegations that were upheld, this is not a full analysis of the question of causation and is in somewhat sketchy terms.[17]In cross examination, Dr Brow to a considerable extent qualified his first report. He recalled the Claimant describing the workplace as feeling like a war zone. He acknowledged that the abuse, behaviour and treatment that we recounted, aside from the acts of sex or age harassment, “are very significant.” He said: “Potentially, without [the torts] and with the other behaviour it seems possible” that the Claimant would have become ill. He hastily added, “I couldn’t rule that out”, but we have little doubt that his first response was more realistic. Earlier in his evidence he said that the illness “was precipitated by her interactions with Mr Barca and the environment.” We regard that as accurate and we will return to this below.[18]Dr Mannan, called by the Respondents, does not believe that the Claimant’s condition satisfies the diagnosis of PTSD or Complex PTSD. Possible diagnoses are Mixed Anxiety and Depressive Disorder or an adjustment disorder. However, in his first report he does not specifically address causation.[19]Dr Mannan is uncertain that the Claimant’s illness is genuine and he has raised the possibility of ‘malingering PTSD’. He seems to have abandoned this, judging by his oral evidence. He said the only difference between him and Dr Brow was the issue of whether the Claimant had psychosis. At another point he also said “It’s the PTSD I disagree with”. However, he accepted: “Of course she is ill. She suffers from something.” Other evidence[20]The most relevant point dealt with by Mr Barca is whether he would have offered the Claimant a training contract. He says that he would not have done so. This is consistent with his evidence at the liability hearing (eg paragraph 10 of his statement) as well as the evidence of Mr Hall, who dealt with the topic between paragraphs 23 and 38 of his statement. Submissions[21]Counsel have engaged in two rounds of written submissions and we thank them for their industry. We will refer to these in detail below. Conclusions
Legal principles
[22]The general common law principles are well known. In compensating for statutory torts the aim is to put the claimant into the position they would have been in had the respondent not acted unlawfully: MOD v Cannock [1994] ICR 918. What, however, is the position when a claimant partly succeeds and partly fails; or there are other non-tortious causes of loss and damage?[23]Thaine v LSE [2010] ICR 1422 (EAT) was a leading case and has been approved by the Court of Appeal in Konczak below. The concurrent causes of the claimant’s ill health, as they were called in Thaine, included previous illness, her personal and relationship history and other allegations she believed amounted to claims of discrimination against LSE, but which failed. Keith J summarised the point for decision thus: “The principal issue which this appeal raises is whether the tribunal erred in law in reducing the award to reflect the LSE’s limited responsibility for the claimant’s ill-health. In short, when a tribunal finds that loss has been sustained by an employee caused by a combination of factors, some of which amounted to unlawful discrimination for which the employer is liable, but others which were not the legal responsibility of the employer, is it legally open to the tribunal to discount the award by such percentage as would reflect its apportionment of that responsibility?"[24]Keith J referred to HM Prison Service v Salmon [2001] IRLR 425 in which Mr Recorder Underhill expressed, as an aside, doubts as to whether the conventional view concerning apportionment of damages in these circumstances was correct. In Thaine the Judge went on to consider Holtby v Brigham & Cowan (Hull) Ltd [2000] ICR 1086 in which the Court of Appeal held that the defendant was liable only to the extent that its "conduct made a material contribution to his disability". It was added that although quantification may be difficult the court has to do its best using common sense. Justice had to be achieved not only for the Claimant but also for the other party.[25]It was next noted by Keith J that the same approach was adopted in Allen v British Rail Engineering Ltd [2001] ICR 942. This was also an industrial disease case in which Schiemann LJ stated that: "... in principle the amount of the employer's liability will be limited to the extent of the contribution which his tortious conduct made to the employees disability." It was immediately added that the court must do its best on the evidence to make the apportionment "... and should not be astute to deny the claimant relief on the basis that he cannot establish with demonstrable accuracy precisely what proportion of his injury is attributable to the defendant’s tortious conduct."[26]It is important, next, to note that an argument advanced by the Claimant in Thaine, which can be referred to as the material contribution argument, and was based on House of Lords authority from 1956 and 1973, was in this context rejected. Keith J held that reliance on these cases was misconceived and noted that it had not been argued that even if causation had been established there had to be a reduction in damages to reflect the distinction between negligent and nonnegligent exposure: paragraph 17. "This passage neatly illustrates the critical distinction which the law makes. The test for causation when more than one event causes the harm is to ask whether the conduct for which the defendant is liable materially contributed to the harm. In this case, the tribunal found that it did and therefore the LSE was liable to the claimant. But the extent of its liability is another matter entirely. It is liable only to the extent of that contribution. It may be difficult to quantify the extent of the contribution, but that is the task which the tribunal is required to undertake."[27]There is a detailed and persuasive analysis of case law that we do not repeat. In paragraph 23 the conclusion reached was that the apportionment approach(a) was supported by a weight of authority and(b) “accords with our sense of what fairness dictates.” Mustill LJ was cited, from Thompson v Smiths [1984] ICR 236, 274: “ … I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known that only part of the damage was their fault.”[28]This brings us to BAE Systems (Operations) Ltd v Konczak [2014] IRLR 676. The claimant’s 15 claims of discrimination/harassment, which all failed, predated the actionable act of sex discrimination, which was a sexist remark. The EAT held (paragraph 30) that there is a need “to consider whether other causes of action [than disability discrimination] are capable of apportionment on the basis that there is a divisible injury.” The Claimant’s argument on appeal “… does not mean to say that the loss necessarily cannot be apportioned between that part of the actions of the employer that amounts to disability discrimination and that part which is not tortious conduct of any kind.” It was also said that “in the ordinary case … it seems to us that any employment tribunal must first reach a conclusion in relation to an injury or a state of health that is said to be causing loss and itself to result from the tortious act of the employer, as to whether that injury or state of health is divisible or indivisible.” (Paragraph 39.) This applies for psychiatric injury: paragraph 41.[29]The case went to the Court of Appeal where Underhill LJ stated as follows: ''The message of Hatton is that [mental/psychiatric injury] may well be divisible. In Rahman the exercise was made easier by the fact … that the medical evidence distinguished between different elements in the claimant's overall condition, and their causes, though even there it must be recognised that the attributions were both partial and approximate. In many, I suspect most, cases the tribunal will not have that degree of assistance. But it does not follow that no apportionment will be possible. It may, for example, be possible to conclude that a pre-existing illness, for which the employer is not responsible, has been materially aggravated by the wrong (in terms of severity of symptoms and/or duration), and to award compensation reflecting the extent of the aggravation. The most difficult type of case is that posited by Smith LJ in her article, and which she indeed treats, rightly or wrongly, as the most typical: that is where “the claimant will have cracked up quite suddenly, tipped over from being under stress into being ill”. On my understanding of Rahman and Hatton, even in that case the tribunal should 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 indeed be, in Hale LJ's words, “truly indivisible”, and principle requires that the claimant is compensated for the whole of the injury – though, importantly, if (as Smith LJ says will be typically the case) the claimant has a vulnerable personality, a discount may be required in accordance with proposition 16.''[30]Proposition 16 from the Hatton case is: “The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event.”[31]Irwin LJ added in short comments the following. “I wish to add a few words of my own, given the importance of the analysis contained in the judgment of Underhill LJ. I agree with him that if and insofar as there is a difference between the propositions set out in Hatton, and the views expressed by Smith and Sedley LJJ in Dickins, then we should follow the approach laid down in Hatton, and by Keith J in Thaine. As a matter of principle, and supporting the fundamental approach that compensation should never become windfall, where an injury is divisible, even if on a rough and ready approach to the division, recompense must be limited to the consequences of identified injury attributable to the tort in question. I further support the proposition that it will often be appropriate to look closely, particularly in a case where psychiatric injury proves indivisible, to establish whether the pre-existing state may not nevertheless demonstrate a high degree of vulnerability to, and the probability of, future injury: if not today, then tomorrow.” Extension of time[32]Ms Bone is correct to observe that the tribunal neglected to deal with the question of jurisdiction that is consequent on our decision that the resignation/dismissal of 10 June 2016 was not discriminatory. The last act of age harassment was on 1 March 2016 and the last act of sex harassment was 25 April 2016. The Claimant applied for the ACAS certificate on 12 August 2016 and was already out of time (although she would not have been aware that her dismissal claims under the Equality Act would fail.) She is between about 10 weeks (sex) and four months (age) out of time.[33]Jurisdiction is a matter for the tribunal. We are in no doubt that in these circumstances it would have been wholly inequitable to deny the Claimant any remedy or judgement on the basis that because her dismissal claims failed as matters of discrimination law, she was out of time. She had been subject to a continuing barrage of abuse and the extension of time to validate the harassment claims have caused (and could have caused) no prejudice of any sort to the Respondents, who have been able to defend the claims robustly and, in relation to dismissal, have succeeded. We have no hesitation in formally extending time, the parties having asked us to deal with this point. Our failure to do so earlier was an oversight. Causation: the central issue[34]Starting with the Claimant’s first written submission, a prime argument made by Ms Millin is that “it is clear [from the chronology she sets out] that the behaviour of [the Second and Third Respondents] caused the Claimant’s psychological illness.” She adds that the tortious acts were six in number and have to be set against 21 alleged acts of harassment in the list of issues. Ms Bone makes contrary submissions: paragraphs 33 of her first submission and paragraph 2(i) of the second. Her contention is that “it defies credibility” that the six comments which were found to be unlawful caused the Claimant’s ill-health.[35]We first remind ourselves of our Judgement and Reasons on liability. We discussed the general problems arising from Mr Barca’s temper and we refer to paragraph 22. We also referred to the Claimant’s Journal. That document was summarised in the table that ran to 86 pages. This contains numerous complaints, mainly directed at Mr Barca, which were not legal issues in the claim. To give one example, between issue number 2 (5 November 2015) and number 3 (12 November 2015) are about six allegations of bad behaviour. These are not trivial, for example against 6 November the Claimant said she felt sad, cried all afternoon, and was distressed and frightened.[36]Further graphic examples of the more general catalogue of abuse and the Claimant’s reaction to it can be found in paragraphs 35 and 36 of our Reasons on liability. These deal with the first two weeks of December 2015. The allegations include Mr Barca shouting at the Claimant every day.[37]It would, therefore, be erroneous, in our judgement, to characterise the findings by saying that 6 acts of harassment were upheld of the 21 factual claims and that, for that reason, these six acts materially cause the Claimant’s illness. When put against the totality of the evidence, it is clear that the entirety of Mr Barca’s behaviour was substantially greater than the upheld acts of harassment. Moreover, the Claimant says as much. In paragraphs 5 and 10 above we have noted examples of what the Claimant said in her Remedy statement and also in evidence. This indicates a sad and probably daily chronology of upset concerning and within the working environment. Ms Bone makes similar points and illustrates the argument in paragraph 33 of her first submission. Here she looks at some of the legal/factual issues that failed and she notes their severe impact on the Claimant, according to the Claimant’s account. She also notes that the upheld acts of harassment did not lead to the first resignation and were not referred to in her letter of 2 June 2016. For the first resignation we would refer specifically to paragraph 34 of our earlier Reasons and for the 2 June 2016 letter we refer to paragraph 53.[38]The conclusion we reach is that the evidence overall positively establishes that the Claimant’s illness after June 2016 was caused by the entirety of the behaviour that she describes and her reaction to it. There is no evidence that connects the age or sex harassment to her breakdown in June.[39]The psychiatric evidence for the Claimant is of little assistance. Dr Brow was specifically asked for an opinion on the cause of the Claimant’s current medical condition and was asked to “address in detail the impact” of the acts that the tribunal found to be harassment. He said, in the three sentences that constitute paragraphs 259 and 260, that the Claimant was vulnerable to “emerging PTSD and depression from past experiences and the predisposing factors.” The “abusive terms” (in the harassment findings) on balance of probabilities and in the context of her background and also “high anxiety due to the stress of the job … culminated in triggering PTSD.”[40]Even before he gave oral evidence, this is a tendentious conclusion, in our view. First, when summarising the harassment in paragraph 259 he casually includes the fact that Mr Barca “habitually swore and verbally abused her.” This habitual swearing and abuse is precisely the behaviour that lies outside the acts of harassment found by the tribunal. By putting the matter in these terms Dr Brow qualifies his conclusion and does not appear to recognise that it may, indeed, contradict that conclusion.[41]Second, in paragraph 260, in setting out his opinion, he does so in the light of high anxiety due to the stress of the job. That anxiety embraces the non-tortious but objectionable conduct. In our view it also includes job stress resulting from(a) Mr Barca’s exacting standards and(b) the tensions in the office that we have referred to above. In other words, these are non-tortious and additional factors that are being relied upon for his conclusion. This is not satisfactory.[42]Third, in paragraph 262 he says in terms that the Claimant “felt targeted throughout her experience at Wilson Barca LLP and understandably blames [the Second and Third Respondents].” He says, further, that her first resignation threat should have been taken more seriously. Again, this confirms the conclusion that the non-tortious factors here are highly significant.[43]Fourth, he also blames “the loss of her dream job” as a cause of stress and suffering. It will be recalled that the constructive dismissal was not tortious.[44]Ms Bone makes various criticisms of Dr Brow’s report and we do not agree with some of them. We do not doubt his integrity as she has. Nevertheless, we agree that his initial report was not compiled with sight of the full GP notes and also that there was confusion in the hearing as to what he had and had not seen. Furthermore, we tend to agree that the diagnosis of latent PTSD has not been fully explained. It only emerged in mid-2017. However, these are not issues that we need to resolve and they are lower in significance that the point Ms Bone makes in paragraph 44. This is that the impact of the generalised behaviour and the impact of the tortious behaviour have not properly been addressed or distinguished. This was reflected in the responses in cross-examination that Dr Brow gave and to which we have referred above.[45]We conclude with a high degree of confidence that if the tortious acts had never occurred, the Claimant would have become ill at the same point in time and to the same extent. We disagree with Ms Millin that the 24 January 2016 offensive and tortious insult from Mr Barca triggered psychiatric damage. The reference in the Claimant’s Journal to hearing voices is quite different to the voices she later reported to psychiatrists on 24 January; on this day there were such voices and they were in the street. She was, in our judgement, nervous and on edge and expected to be shouted at by Mr Barca for the slightest thing. Nor do we accept that it is helpful to ask whether the Claimant’s illness would have occurred if she had not been employed by Mr Barca. That is not the test. If it were the correct test, we would be imposing liability on the Respondents for all the behaviour complained of. Ms Bone picks this point up in her rejoinder submission at paragraph 2(i). We agree with her. She also describes the submission that the acts of harassment caused the Claimant to resign as factually incorrect. We agree with that observation as well and the evidence in our view is the very opposite, namely that the Claimant resigned because of her treatment over a number of weeks, culminating in her resignation after an argument: see paragraphs 52 to 53 of our earlier Reasons.[46]On the issue of ‘causation’, i.e. whether the acts of harassment caused the Claimant subsequent illness, we conclude that they did not. The formulae applied by the Claimant in submissions are too wide and do not reflect the case law. We consider that Ms Bone’s submissions are more realistic because they match the evidence, which points against these acts of harassment having any causative function in terms of the subsequent illness.[47]We should comment briefly on the case law that Ms Millin has drawn to our attention. In paragraph 26 of her first submission she relies upon the case of Olayemi v Athena [2016] ICR 1074 and Ms Millin cites an extract from paragraph 19 and paragraph 26. This, however, is an incomplete citation and paragraphs 19 to 21 follow Thaine and are consistent with the subsequent case of Konczuk. HH J Richardson referred to the essential principles not being in doubt. “The claimant must prove that the respondent’s wrongdoing was a material cause of her psychiatric condition. If she does so the respondent must take her as he finds her; it is no defence for him to say that she would not have suffered as she did but for a susceptibility or vulnerability to that kind of psychiatric condition. The employment tribunal will award compensation for the psychiatric condition, although it may discount the compensation to take account of any risk that she may in any event have suffered from the psychiatric condition to which she was vulnerable. That will depend on the chance that she would have suffered some other cause - presumably harassment or similar - to trigger her condition, and also on the seriousness of that cause. 20 It is open to the respondent to show that there was another material cause for the claimant’s psychiatric condition - that is a cause going beyond mere vulnerability or susceptibility. Even so it is not a defence for the Respondent to say that there was another material cause her psychiatric condition unless the resultant harm is truly divisible. If, however, the resultant harm is truly divisible the tribunal concerned must estimate and award compensation for that part of the harmful which the Respondent is responsible. In so doing it will apply the tortious measure of damage: it will identify the harmful which the Respondent is responsible and award compensation for that harm, as opposed to the harm which would have occurred in any event. These propositions - including the propositions concerning divisibility - are not unique to claims arising out of a psychiatric condition.”[48]To repeat our conclusion, this is a case where the psychiatric illness is properly divisible and where the cause of that illness is the overall level of abuse suffered by a vulnerable employee. The tortious acts of harassment give rise to injury to feelings, but did not cause the illness. They were incidental. The alternative consideration: the chance of succumbing to the disorder[49]This is the chance that the Claimant would have succumbed, in any event, i.e. without the acts of harassment. It is inescapable, given our view of the evidence as set out above, that she would have done so. Her vulnerability arises in part from her personal history going back to earlier years in Bangladesh and also to the history of psychiatric illness after coming to the UK. This latter includes a number of years, approximately 7, when she was on antidepressant medication, up to 2011. It is evident to the tribunal that the Claimant, unfortunately, would have become ill in the same way if the acts of age and sex harassment are left out of account. It is not commonsensical or consistent with any of the evidence to conclude otherwise. There is no medical opinion or data that could support that view. This conclusion, in reality, goes hand-in-hand with what we have set out above. We are not saying that the Respondent’s behaviour did not make the Claimant ill: it did. But any remedy for the psychiatric illness lies outside the jurisdiction of this tribunal. Injury to feelings[50]The Claimant claims £40,000 in the upper Vento band. The Respondent places compensation in the lower band. It is said by the Respondent:(a) that the non-tortious acts more greatly injured her feelings;(b) she took the acts of harassment in her stride at the time;(c) the Claimant often got on with Lily;(d) she could stand up to Mr Barca and even demanded payment if she were to receive future abuse.[51]We do not find these arguments convincing. Just because there was a catalogue of abusive conduct does not mean that the Claimant was either not hurt in her feelings, or not substantially hurt, by the acts of harassment. The fact that she had carried on working at the time of harassment does not dilute this. Nor does the fact that she often got on with Lily mean that the discriminatory comments did not upset her. The last point made by the Respondent, concerning the Claimant’s suggestion of a tariff of compensation, is especially weak, since the letter is a little bizarre and, if anything, points to the extent of the her hurt feelings.[52]The date of the ET1 is 1 October 2016 and this means that we start with the original Vento figures. As Mummery LJ said in that case [2002] EWCA Civ 1871: “Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury … Striking the right balance between awarding too much and too little is obviously not easy.”[53]As to the 3 bands, the top band should normally reserved for the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. The middle band should be used for serious cases, which do not merit an award in the highest band. Our assessment is that is where this case falls.[54]We also note the important citation from H M Prison Service v Johnson [1997] ICR 275 as follows: "(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham MR, be seen as the way to 'untaxed riches'. (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think that this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (v) Finally, the tribunal should bear in mind Sir Thomas Bingham's reference to the need for public repect for the level of awards made."[55]In our judgement the harassment was serious and cannot be described as ‘less serious’ so as to justify the lower band. We would assess the correct figure at £10,000 for each of the episodes of sex and age harassment, taking all instances under each head together. This would make a total of £20,000. However in order to uprate this figure from 2002 levels, and in accordance with the Presidential Direction, we divide this figure by 178.5 and multiply by the appropriate figure to be found in the RPI tables compiled by the ONS for the period ending 1 October 2016, namely 264.8. This produces £29,669.47 and has to be further multiplied by 1.1 to reflect the Simmons enhancement. This produces £32,636.42. Future loss[56]The Claimant’s first submission simply refers to the schedule of loss. This claims £15,444 for loss to the date of the tribunal hearing and £850,000 thereafter. The Respondent’s first argument is that there is no financial loss at all caused by these acts of harassment. Second, it is said that the claim is exaggerated. This is because it is unrealistic to say that, but for the harassment, the Claimant would have qualified as a solicitor.[57]In resolving this major dispute, the tribunal considers that it has been established that Mr Barca, and also Mr Hall and Lily, thought that the Claimant’s performance was lacking. Whether this is right or wrong, the belief was genuinely held and quite strongly by Mr Barca. The likelihood of the Claimant being given a training contract is very low in our estimation and it should be discounted. At some point, if she wished to qualify as a solicitor, she would have had to move on.[58]We derive limited assistance from the submissions. In the first round of exchange Ms Bone, in effect, invited the Claimant to expand on the argument, saying in paragraph 49 that the Respondent would make a further response when it was known how the Claimant was putting her case on the period of loss. The Claimant’s submission does not accept that invitation. In neither submission does the Claimant explain, expand upon or give details for the career loss that the schedule claims. In two places in the first submission Ms Millin refers to “general financial loss” as well as the schedule. In our view, no proper claim for career loss has been explained and such a claim has not been made out.[59]The most likely course of events, but for these acts of harassment, is that the Claimant would have resigned at the same point in time and would have been at that stage equally ill. Financial loss does not arise. If we were wrong in that principal conclusion, then we would conclude in the alternative that she would have left a relatively short time thereafter, either because she was ill; or because she realised that she was not going to be given a training contract. We doubt that she would have stayed beyond a year, i.e. 1 November 2016. Aggravated damages[60]We find it difficult to put Lily’s behaviour into the category of conduct that merits aggravated damages. The comments were made at various times and were in the context of other more supportive remarks, at different times, that were directed towards the Claimant. To apply the case law to Lily so as to justify aggravated damages strikes the tribunal as unrealistic. The facts fall into none of the categories set out in HM Land Registry v McGlue, EAT, 2013. We see no proper way of equating the facts with any other case in which aggravated damages have been awarded: see also Ziawalla v Walia [2002] IRLR 693. Nor has any argument been advanced by the Claimant as to why aggravated damages should be awarded for the age harassment.[61]We take a different view of Mr Barca’s two comments, which were not only grossly insulting but also oppressive and we consider that the threshold has been reached for awarding an extra sum by way of aggravated damages. We estimate this at £5,000. This takes the total award for injury to feelings to £37,636.42. Other claims[62]The Claimant’s first submission claims £19,937.50 for Dr Brow’s fees as well as that £31,000 for future inpatient care at a private hospital. Again, there is no reasoning set out in the submissions. In the light of our findings, the future care costs must fail. As to the doctor’s fees, such disbursements are plainly a matter of costs (see rule 74) and not a claimable item of special damage.[63]As to costs generally, any application should be made with full grounds after the promulgation of this decision and in accordance with the rules.[64]Turning to interest, pursuant to the 1996 Order we have a duty to set out the figure for interest. We take the calculation date to be 4 March 2019. Bearing in mind these particular facts, we calculate interest from mid-way through the period of harassment, as found, (19 November to 25 April) which is 3 February 2016. Interest on injury to feelings is calculated at 1124 days at 8% pa, which amounts to £9,271.96. This produces a grand total of £46,908.38. REMEDY JUDGMENT ON REMITTAL And
Legal principles
[1]The Respondents shall pay to the Claimant for injury to feelings the sum of £41,486.26, inclusive of aggravated damages (£4,000) and interest.[2]The Claimant shall pay costs to the Respondents in the sum of £10,000. The Claimant’s costs application is dismissed.
Legal principles
[1]This was the hearing of the remitted remedy and also the parties’ cross applications for costs. The original remedy judgment of 6 March 2019 was that the Respondent pay to the Claimant for injury to feelings the sum of £46,908.38 inclusive of £5,000 aggravated damages and interest. Both parties appealed. The Claimant’s appeal was not permitted to proceed. The Respondent’s appeal was allowed and the Appeal Tribunal ordered that the award be set aside. The issues of what award should be made for injury to feelings and whether aggravated damages should be awarded in respect of the acts of discriminatory harassment on the basis of sex (and, if so, in what amount) were remitted to this panel for rehearing. Remitted remedy hearing: injury to feelings[2]This was not a rehearing de novo of the entire remedy. Certain of the appeal grounds were rejected, in particular, “that the Employment Tribunal had been wrong in principle to make awards for injury to feelings and of aggravated damages”. (See Summary of Reasons.) It is the assessment of compensation that has been remitted. “... the remedy judgment has been found wanting in what is, in my judgment, a relatively limited respect”: paragraph 68.[3]There was some debate in the Appeal as to what we meant in paragraph 53 of our remedy judgment, although the Judge did not need to resolve that issue. In that paragraph we were dealing with injury to feelings and we said that our assessment was that the case fell within the middle band of Vento. The debate was whether we were referring to the total sum or, alternatively, to each of the sums for age and sex harassment. We indicated to counsel at the outset of the hearing that we were able to tell them what we intended and they each agreed that we should make this clear. The tribunal’s intention was that each of the two sums for each type of discriminatory conduct fell within the middle band. We were not intending to limit the total sum to the middle band.[4]We also indicated, for the assistance of the parties, that we accepted that we had overlooked the requirement to consider whether any discount should be applied, so as to avoid over-compensating the Claimant.[5]We briefly summarise the matters for which compensation falls to be assessed. The age discriminatory remarks were made by Ms Raj and in paragraph 68 of the liability decision we described this as “general denigration of the Claimant on the ground that she was either too old, alternatively not as efficient as the younger comparator.” It was in respect of four matters that we upheld the age-related harassment claims. The effect of the comments was to demoralise the Claimant. (Paragraph 69.) This is quite separate from the sexrelated abuse that Mr Barca directed at the Claimant. These remarks, which we do not need to repeat here, were made in January 2016 and on 24 April 2016. As we said, there is no question that the remarks had the effect of creating a degrading and hostile environment for the Claimant.[6]As both counsel acknowledged during this latest hearing, disentangling the way in which the Claimant’s feelings were injured is far from easy and, inevitably, involves a degree of artificiality in the analysis. There are three broad areas in which the Claimant’s feelings were hurt. First there is the age-related harassment and, second, the sex-related abusive comments. But this all occurred over a period of months within the context of a much larger catalogue of abuse she faced from the Second Respondent. To ask whether her hurt feelings can be ascribed to the individual tortious items where we have found in her favour is inevitably a very difficult exercise for a tribunal of first instance. There is a general observation to be made. The everyday abuse from Mr Barca can be summarised as incessant swearing at the Claimant in much the same way as he swore at others who he considered had made errors, been slow or underperformed in some way. This undoubtedly caused the Claimant distress. But when he descended to specific and crude sex-related abuse, this took the matter into a different realm of hurt and is factually distinct from the everyday abuse.[7]The same is true for Ms Raj, because she did not engage in everyday swearing at the Claimant or that form of abuse. When she did make the comments that we found to be tortious she was, as Mr Barca’s personal assistant, specifically undermining the Claimant’s confidence and, indeed, the likelihood that she would ever obtain a training contract. In saying that she was slow because she lacked the skills of a younger person, Ms Raj was undermining the Claimant in a different way from the general abuse that the Claimant received from Mr Barca. It is therefore credible for her to assert that the tortious acts caused her specific upset and, without needing to cite details, her journal of events, where she recorded her feelings, supports that conclusion. We have no difficulty in finding on the evidence that the Second and Third Respondents at different times engaged in different types of verbal denigration that caused the Claimant specific upset and distress. It is on that basis that we made two separate awards.[8]When it came to assessing quantum, we concluded that we could not distinguish between the four remarks on the one hand and the two on the other. Our conclusion was that if the Claimant is to be compensated for the remarks of the Second Respondent it should be on the same basis as those of the Third Respondent; and vice versa. We lack any basis to distinguish between them in terms of quantum, although it is evident that we can do so in so far as the nature of the acts is concerned. What we cannot easily justify is why the award for injury to feelings, having regard to the evidence overall, should be different as between the two heads of damage.[9]We therefore adhere to our assessment of £10,000 injury to feelings, as set out in the remedy judgment and in respect of each head of claim. Where we need to go further is to look at matters overall and ask whether aggregating the two sums together produces a fair and correct result.[10]The essence of Ms Millin’s argument is that we should not reduce the two sums of £10,000, largely because of the offensiveness of these comments. She goes on to submit that £10,000 was “on the low side”. Ms Bone refers realistically to what she calls the “compound injury” to feelings suffered by the Claimant and says it is difficult to say which part of that related to her successful claims. She maintains the original submission that each should be assessed in the lowest Vento band.[11]As we have indicated, we do not agree with this latter submission having regard to the nature of the remarks in each case and the effect that they plainly had on the Claimant. We do, however, recognise that merely adding the sums together to produce an award of £20,000 carries the risk of over-compensating the Claimant. The reason is that she was working in an environment that, for different reasons, caused her upset and distress. The injury to her feelings for these tortious acts could be said to be absorbed in the overall injury to feelings that she experienced as the weeks and months went by in this office. Given that it is impossible to identify the extent to which the individual heads of claim magnified her hurt and distress in any scientific way, it is necessarily the case that the various causes of upset overlap. To aggregate the two sums of £10,000 is, therefore, to risk some element of double recovery. Put another way, we are obliged to look at the overall sum for injury to feelings so as to ensure that it is proportionate to the hurt suffered. When we look at all these matters in context, we consider that some discount should be made to reflect the facts that we have summarised and which are set out at greater length in our liability judgment.[12]Accordingly, and doing the best we can in the circumstances, we have come to the conclusion that the sum of £20,000 should be discounted by 20%, i.e £4,000, to reflect the overlap of injured feelings. In our judgment, and using the figures that are relevant to the date of the claim, the overall sum of £16,000 does justice to the Claimant under these two heads of compensation and recognises the factual intricacy of the case we are dealing with. Aggravated damages[13]In paragraph 62 of the judgment of the Employment Appeal Tribunal, it was stated that the Second Respondent was the senior partner of the firm and the tribunal had been entitled to find that his actions in calling the Claimant a “stupid cow” and a “stupid cunt” were not only insulting, but oppressive. Accordingly, an award of aggravated damages was open to the tribunal given their respective roles.[14]Where the Respondents’ appeal was upheld was in respect of the reasons we gave for the award of aggravated damages. The Appeal Tribunal stated that a tribunal must explain why the amount of basic award was insufficient to compensate the Claimant and “the extent to which the conduct that gives rise to the award of aggravated damages has increased the impact of the discriminatory act on the Claimant.” It is not a punitive award. All of this is set out in HM Prison Service v Salmon [2001] IRLR 425. Therefore, as we see from paragraph 24 of that judgment, the correct question is “the extent to which that [aggravating] conduct aggravated the injury to [the Claimant’s] feelings.”[15]We referred to the Claimant’s contemporaneous journal in our original remedy decision. We have again consulted it. The first highly offensive comment was made on 24 January 2016 and the journal states, “I felt so miserable.” The Claimant went on to say that in response to being abused in this way she called Mr Barca stupid. That rejoinder is an unusual one in this case and gives some indication of her immediate injury to feelings and hurt. What she said in the journal was that the comment caused her to have what she termed ‘a breakdown’ at the workplace and she commented in the journal: “I just don’t understand how someone can shout so violently using such humiliating language …" These entries in our view amply support the conclusion that there was an aggravation to her injury to feelings.[16]The second comment, as offensive and sex-related, was made on 25 April. In her journal she said: “How can someone call an employee a ‘Stupid Cow’?“ She then went on to refer to the earlier insult we have referred to in the above paragraph and she continued: “No one ever called me such names.” If further evidence is required, she recorded in the journal that she could not stop crying and that she cried all the way home. She sat in the park for a long time, crying. Moreover, “I sent Richard a few text messages telling him I don’t like to be called stupid cow and I don’t like the way he treats me.” All of this supports the conclusion that the specific sexist abuse stood out from other general abuse. All of that other abuse could in one way or another be seen as part of his behaviour towards employees. But these abusive comments singled out the Claimant’s gender and it is hardly surprising to this tribunal that her feelings were not only additionally hurt and damaged by the comments, but that she was able to articulate this in her own journal written at the time. There is, therefore, an evidential basis for awarding aggravated damages in our view.[17]Some adjustment needs to be made because we set the figure at 50% of the award we made in respect of Mr Barca’s comments. We have now reduced the figure to a broad-brush figure £8,000 to represent this head of damages for the two comments. Therefore, we would proportionately scale down the figure of £5,000 to £4,000 for aggravated damages.[18]We reject the submission from the Respondent that the aggravation of injury to feelings comes “out of the acts themselves” and that the additional hurt is not identifiable or severable. This submission was along the lines that the global award for injury to feelings embraces all that is required; and that even though aggravated damages are available in principle, they should not be awarded. We do not accept this.[19]The essence of Ms Bone’s argument is that, unlike some other cases, the aggravated damage here does not arise as something additional to the original causes of action, such as conduct by a party during the hearing. She contends that the aggravated damage arises from the very comments we have compensated for. Therefore, she submits that the effects of the injury to the Claimant’s feelings have been taken into account at the first stage and there should be no supplemental award of aggravated damages at the second stage. While this is a logical submission we would record that we have not in our primary award for injury to feelings, taken into account the specific factors that make these comments unusually oppressive. These are referred to in the appeal judgment and include the disparity in status between the parties. We have sought to deal with that aspect of the case, i.e the oppressive conduct, in the award for aggravated damages that we can legitimately make. To that extent we have sought to avoid double recovery or an infringement of the correct legal principles on remedy to which Ms Bone refers.[20]There is an allied submission that if we set injury to feelings in the middle band (the Respondent having argued for the lower band) that alone should be a reason to avoid making a further award for aggravated damages. We do not see the merit in this submission, because the assessment of injury to feelings stands on its own and does not take into account the specific aggravating factors. In our judgment the addition of £4,000 aggravated damages to compensate the additional hurt suffered by the Claimant is within the bounds of reasonableness and is relatively moderate having regard to the rest of the award. We accept that a tribunal can do no more than try to find a figure that does justice and it will always be difficult to ground such a figure in precedent or arithmetical certainty. In the view of this tribunal, this figure does justice as between the parties.
Summary
[21]Thus, to summarise, we reduce our original award by a total of £5,000. The revised figures are £16,000 and £4,000 for aggravated damage. There is no challenge to the method of calculation we set out in paragraph 55 of the original remedy judgment. £16,000 is divided by 178.5 and multiplied by 264.8, to produce £23,735.57. This is then multiplied by 1.1: £26,109.13. Adding £4,000 produces £30,109.13. Interest (as per paragraph 64 of the judgment) is from 3 February 2016 to the new date of calculation, 23 October 2020, i.e 1724 days. At 8% p.a., interest is £11,377.13. The total of all sums is £41,486.26. Costs: Respondents’ application[22]Given the acrimony in the long course of correspondence between the parties, it is unsurprising that each applies for costs against the other. We deal first with the Respondents’ application, formally set out in the written application dated 14 September 2020.[23]Four grounds are relied on.(a) The unreasonable rejection by the Claimant of a joint medical expert.(b) Her making a large remedy claim based on whole career loss, which was unreasonable.(c) The Claimant unreasonably refusing to cooperate with the Respondent’s expert.(d) She failed to give proper disclosure of medical records.[24]Our conclusion is that three of these grounds do not justify a costs order being made, but that the second ground above is made out; and the threshold for making an award of costs has been met.[25]Joint report. The Respondents’ application is based on De Keyser v Wilson [2001] IRLR 324, it being contended that the Claimant was obliged to agree to instruct a joint expert in the absence of special circumstances. The difficulty with this submission is that The EAT recognised in 2001 that the tribunal lacks powers to order the expert’s costs. We also lack the detailed rules that apply in civil proceedings. If the parties have to agree about the costs, our perusal of the correspondence indicates that the prospect of such an agreement would never have been high. Beyond this, such was the suspicion that the Claimant had about the Respondents, arising out of her treatment at work, we would not characterise her stance as unreasonable. She wanted to instruct her own expert and that was a reasonable course to take.[26]Non-cooperation. So great is the factual dispute as to what happened when the Claimant first visited the Respondent’s doctor, we find ourselves in no position to make factual findings. We give further detail when we consider the detailed correspondence under the heading of the Claimant’s application. We would not go so far as to say that the Claimant has behaved unreasonably.[27]Medical records. The short point is that the Claimant is not responsible for the gap in the GP records that needed to be repaired during the original remedy hearing. A firm of solicitors initially dealt with this and we acquit the Claimant of subsequent misbehaviour. It might have suited her (had she taken note of it) that the GP notes were initially incomplete, but she did not bring about that state of affairs.[28]Whole career loss. This is not only a significant ground of criticism, but compared to the three other grounds, it puts them into the shade. We first note that the Respondents remind the tribunal of the 18 May 2018 letter sent to the parties by the Employment Judge. It was observed that the tribunal could not at that stage order the Claimant not to pursue such loss. “If it turns out to be misconceived, the Respondent has the usual remedy in costs. However, at this stage, the Claimant has not formulated a case for career loss. She has apparently said she will not work again, but that is, in terms of future loss, the submission of greatest seriousness and would always require cogent medical evidence. If she does assert such a claim with medical evidence, then the Respondent will need to consider commissioning its own evidence”. The Respondents’ written application notes that the career loss claim failed, indeed was never explained: paragraph 58 of the remedy judgment. Costs, they say, should follow.[29]Ms Millin for the Claimant made various oral submissions that did little to meet the Respondents' application. She said on a number of occasions that a claimant is entitled to pursue financial loss under the Equality Act. This does not deal with the Respondents’ point, which is that unreasonable assertion of such a claim may lead to a costs award. She says the Claimant’s expert expressed doubt over the Claimant’s future, but that does not deal with the weakness of his evidence. We dealt with this at some length in the remedy judgment. The “central issue” was causation of loss. On that question, the Claimant failed and Dr Brow’s report did not, in its own terms, even advance that claim. We concluded that, but for these tortious acts, the Claimant would have resigned at the same point in time. Beyond this, the career-long loss was unexplained. Even if the Claimant had overcome problems of causation, the loss of income for the remainder of her working life was never a realistic claim. Ms Millin, inter alia, submitted that this is all a “very grey area”, but, forensically, that is not the case. A claim of this type has to be grounded in evidence and this particular claim was not. The remedy claimed was bound to fail, in our view.[30]For completeness, we accept that the future loss claim was misconceived, i.e had no reasonable prospect of success. It seemed to proceed on the basis of a discriminatory dismissal, a claim that failed. We agree also that the Claimant never engaged with the narrower basis on which she succeeded, thus presenting an inflated claim. We accept that any respondent faced with a claim of this size would be bound to take it seriously and would reasonably incur costs in defending the remedy. Costs: Claimant’s application[31]The first basis for the application is that the Second Respondent had no defence to the claim. The same point appears to be made about Ms Raj and the submission is that the Respondent should pay by way of costs all the costs of instructing Dr Brow. Allied to this is the submission that failing to offer a reasonable settlement to the Claimant was unreasonable conduct. The short answers are that:(i) within the overall context of the claim as pleaded, the Second Respondent’s persistence in the defence was not unreasonable;(ii) in any event, his admission of harassment would have saved no costs; and(iii) the decision to instruct Dr Brow had nothing to do with matters. The same point applies with even more force for Ms Raj. As to settlement, there is no obligation to do so and the Claimant has not sought to protect herself by an open or Calderbank offer. Ms Bone points out that the remedy claimed was vastly above the amount awarded. We see from our notes that career loss was first mentioned by Ms Millin during the liability hearing. That at some earlier stage the Claimant says she would have accepted a modest settlement is nothing to the point.[32]The further grounds for the application are that Dr Mannan and the solicitors conducted themselves unreasonably and Ms Millin took us through the relevant correspondence, principally in September 2018. As we have noted above, there is some overlap here with the counter-allegations of unreasonableness levelled by the Respondents at the Claimant.[33]The Respondent solicitors wrote in level terms to the Claimant on 6 September and Ms Millin on the 10th. No grounds for costs are asserted before 14 September. On 14 September is a reference to the third-party solicitors who were seeking medical records. On the 18th they said they regretted they could not help more generally. The Respondents instructed their expert on the 19th (making reference to the then claim believed to total £980,000.) This letter is not criticised by the Claimant. However, Ms Millin seemed reluctant to accept that correspondence up to that point could not be relied on for the costs application. She submitted that it showed unreasonable conduct, but we fail to see where that can be identified.[34]On 26 September the Claimant told Ms Millin that she would be accompanied at the Mannan examination on 28 September by a friend who was a solicitor, but who would not be acting in a legal capacity. (Page C:23.) The next day, Ms Millin told the solicitors that “a friend” would be in attendance.[35]What happened on 28 September is greatly disputed. The Claimant’s account is at page 27 in the same bundle. Dr Mannan’s is at 29-30. This is the factual dispute we cannot determine. The correspondence about this involved the tribunal and it is evident from the bundle that tempers were fraying. Allegations of impropriety were exchanged. There was an urgent preliminary hearing on 12 October at which Leading Counsel appeared for the Respondents. A practical solution emerged for the Claimant’s attendance at a medical examination and no orders were necessary. A date of 1 November for the examination was subsequently agreed.[36]Directions proposed in correspondence by Ms Millin were deemed ‘sensible’ by the Employment Judge but were opposed by the Respondents. Mr Barca at one point, on 23 October, alleged judicial bias. There is some merit in the criticism that the Respondent was engaging in unnecessary correspondence, but we doubt that any costs were incurred in consequence. In any event, further correspondence canvassed the possibility of the examination being audio recorded and its cost. The toing and froing over this occupied quite a number of emails. The outcome (page 77) was that the 1 November examination could not proceed as Dr Mannan was unwell. Ms Millin was able to stop the Claimant from setting out. In her 1 November email to the tribunal at page 80 she alleged unreasonable behaviour by the Respondent; sought a medical certificate from the Respondent’s medical expert; and intimated that a costs application would be made.[37]The examination took place on 13 and 20 November and there was a further case management hearing on 16 November and 26 November by telephone. Some of the Respondent’s arguments were rejected. Equally, their protest on 4 December that the medical records were incomplete proved later to be correct. The records were sent directly to Dr Mannan by the GP on 12 December: page 98. The Respondent continued to protest at the way the tribunal was managing the case.[38]On 13 December, the Employment Judge wrote to say, first, that whether there were gaps in the medical records would be sorted out at the remedy hearing (as happened.) Second, it did not appear that the Claimant was thwarting the production of the Mannan report. Third, he considered that the report could be produced in time (as also happened.) A postponement was refused and the letter concluded by noting the urgency of getting the matter into tribunal in the next week so that the full panel could adjudicate on the various disputes. “Normally, these considerations do not arise on a remedy hearing, but the history of this remedy shows interlocutory disputes at a high and, arguably, unprecedented level of intensity.”[39]Ms Millin claims £2,250 costs exclusive of VAT from September to 13 December. This has to be on the basis that all of the costs on the Claimant’s side were incurred as a result of unreasonable behaviour by the Respondent, but this is untenable. A review of the chronology shows that, although there were alarms on the way, the parties managed to get from the seeking of GP notes to remedy hearing in 4 months, a time frame that also included Dr Mannan’s expert report being compiled. Each party criticises the other, but we consider it would be wrong to make an order for costs because we can see no identifiable unreasonable conduct by the Respondents that led to costs being incurred. They were each highly suspicious of the other party but, in the Respondents’ case, they were correct to suspect that the GP records had gaps. In other respects, their applications were rejected; but none of this is a good basis for a costs award.[40]Ms Millin advances a further ground for costs, which is bundle preparation. We intend no disrespect when we comment that we do not really understand this. Ms Millin seemingly spent time preparing the bundle, but at one point she told us did not know why or how she agreed to do this, but she did; and Mr Barca then sent her his own bundle. We recall having two bundles at the remedy hearing, indeed, this seems to be a feature of hearings in this litigation. There is no evidence on which we could fasten a costs award against the Respondents. Costs: generally[41]We have not set out the law above. Rule 76(1)(a) provides that the threshold for a costs order is a party acting “vexatiously, abusively, disruptively or otherwise unreasonably.” The tribunal must consider that this first stage is met before going on to consider whether the discretion to make an order should or should not be exercised. We acknowledge, but need not cite, the case law that counsel have referred to. In the case of the Claimant’s application, the threshold is not met. In the case of the Respondents’, it is met on ground 2 only. Costs: Quantum[42]We now turn to whether the discretion to make an order should be exercised in favour of the Respondents; and, if so, in what amount. We bear in mind the principle that we should assess the nature, gravity and effect of the unreasonable conduct.[43]We must also take into account any information about means that we are given. We were at some pains to clarify this with Ms Millin. She confirmed that she and the Claimant had chosen not to put evidence about means before us. It is said she is too ill to work, but it is accepted that she will have her award to meet a costs order. Given the way in which the submissions have been made, we ignore means entirely and do not speculate any further. For clarity, although we have seen fee notes that Ms Millin has shown us, we do not know the basis on which the Claimant will be paying for legal representation.[44]The unreasonable conduct was in making a claim for career loss after the judgment on liability was promulgated; and, then, pursuing it when the medical evidence went nowhere near supporting such a claim, given the limited basis on which the Claimant had succeeded. These two points are separate, but do not have any consequence for the costs application, because the costs sought arose after Dr Brow’s report. We have to weigh in the balance the likelihood of a remedy hearing being necessary, even if career loss had not been claimed. If the claim had been put on a more reasonable basis, we suspect that a hearing would have been held, given the parties’ difficulties throughout the litigation in reaching agreement and the considerable bad feeling evidenced in correspondence. We also need to bear in mind that the Respondent pursued certain applications that failed in the weeks before the remedy hearing, as well as overall proportionality. Nevertheless, the assessment of the award for costs is a difficult question.[45]The tribunal does not consider that the Claimant’s award should be reduced to nil, which is the Respondents’ case. They seek over £47,700. It is true that a lesser figure would be assessed and the tribunal would not consider awarding more than a proportion of the total assessed costs, were that approach to be adopted. The demerit of doing so is that it involves the parties in further, near-certain dispute about the basis of assessment. Nor would a proportion be easy for the tribunal to ascertain. We have, therefore, come to the conclusion that we should summarily assess a figure that can be funded out of the award and which will compensate the Respondents in a meaningful way for a proportion of the costs of defending the remedy. We assess that sum at £10,000. We are confident that that is a sum that the Respondents have properly incurred over and above the costs they would have had to meet had the Claimant behaved more reasonably in the assessment of her claim. In making this point, we note that the costs of medical and counsel fees alone are said to be a little under £20,000. Awarding about half of those claimed costs (which exclude solicitor’s costs) strikes us as a fair award. Looking at the matter overall, it is also a reduction of the award that appears to the tribunal to do justice to both parties.