Ms Rocio Vaqueiro LagoClaimantMichael Van Clarke LLPRespondent
Before
Employment Judge GidneyIn person for claimantIn person for respondentDate 27 February 2025
JUDGMENT
The Judgment of the Tribunal is that: Page 1 of 53[1]The Claimant’s claim of unfair dismissal, pursuant to s98(4) Employment Rights Act 1996 (‘ERA’) is dismissed.[2]The Claimant’s claim of direct race discrimination pursuant to s9 & s13 Equality Act 2010 (‘EqA’) is dismissed.[3]The Claimant’s claim of harassment related to race pursuant to s26 EqA is dismissed.[4]The Claimant’s claim of victimisation pursuant to s27 EqA is dismissed.[5]The Claimant’s claim for Holiday Pay is dismissed.[6]The Claimant’s claim for Notice Pay is dismissed.[7]The Claimant’s claim for Unlawful Deductions from Wages is dismissed.[8]The Claimant’s claim for Breach of Contract is dismissed.
REASONS
[1]The Claimant commenced her engagement with Michael Van Clarke LLP, the Respondent, in the role of Colour Technician on 2nd December 2014 [377]. On 11th September 2023 the Claimant notified ACAS of a dispute with the Respondent. Her engagement was terminated on 4th October 2023 [1260] after 8 completed years’ service. She was 43 years old at the time. The Claimant’s nationality is Spanish. On 5th October 2023 the Claimant obtained her ACAS Early Conciliation Certificate. Page 2 of 53[2]By a Claim Form dated 3rd December 2023 [1138] the Claimant presented a number of claims against the Respondent. At trial before us the live Claims (and the necessary employment status to present them) were: Claim Necessary Status Statutory Provision Unfair Dismissal Employee s98 ERA Direct Race Discrimination Employee or Partner s39, 44 & 45 EqA Harassment related to race Employee or Partner s39, 44 & 45 EqA Victimisation Employee or Partner s39, 44 & 45 EqA Unlawful Deductions from Wages Worker s13 ERA. Notice Pay Employee s86 ERA. Holiday Pay Worker Reg 4 WTR Breach of Contract Employee s3 Extension Jurisdiction Order[3]The Respondent’s ET3 [1113] denied all of the Claimant’s claims. The matter was case managed by Employment Judge Anderson on 25th January 2024 [20]. Following that hearing the Claimant made an application to amend her Claim Form [1175] to include a large number of additional complaints said to be further incidents of harassment related to race.[4]At a Preliminary Hearing held on 5th August 2024 [1182] Judge Anthony refused the application in respect of paragraphs 1 to 7 (relating to new allegations over an 8 year period between 2015 and 2023). He gave permission for the new allegations of harassment at paragraphs 9 to 12 (covering the period July to October 2023) to be added to the Claim. Page 3 of 53 [2] The List of Issues[5]Employment Judge Anderson set out the issues to be determined at trial in the original Case Management Order [26]. The list was then updated by Judge Anthony to reflect the amendments that had been allowed [1183]. The composite list of liability issues (as updated and revised by us) is set out in Annex 1 of this Judgment.[6]During the course of the hearing, as matters were discussed, and with the agreement of both parties, the List of Issues evolved. The agreed variations to the List of Issues were as follows: 6.1. Both the Claimant’s original Particulars of Claim [34] and her amended Particulars of Claim [1178] contained a claim of direct race discrimination that two British colour technicians, Michael Scott and Summer Langton were paid to provide training to apprentices whilst the non-British technicians (including the Claimant) were not. This claim does not appear in either List of Issues prepared by Judge Anderson or Judge Anthony. However, it has not been dismissed by the Tribunal or withdrawn by the Claimant. We consider it to be a live claim and have added it into the List of Issues. 6.2. For the EqA claims only, we determined that the Tribunal would not have to determine whether the Claimant was an employee as defined by s83 EqA, as even on the Respondent’s best case the Claimant would qualify for protection as a member of a Partnership (s44 EqA) or a Limited Liability Partnership (s45 EqA); 6.3. The issue originally recorded at 6.2.2 was amended to remove the reference to ‘fabricate’ and replace it with ‘write’. It changed from ‘Did the Respondent in August 2023 or afterwards, ask other colleagues to Page 4 of 53 fabricate complaints against the claimant ….’ to ‘Did the Respondent in August 2023 or afterwards, ask other colleagues to write complaints against the Claimant ….’. We allowed the amendment to this issue. 6.4. Further, again in connection with Issue 6.2.2, during discussion the Claimant refined the allegation further from ‘did the Respondent ask colleagues’ to ‘did the Respondent ask colleagues, namely Luis Ventura and Diana Mazela’. The Claimant told us that she believed more colleagues had been asked, but she only wished to pursue this allegation in respect of Mr Ventura and Ms Mazela, as those were the only approaches she could prove. We allowed this refinement to be made to the List of Issues. 6.5. The issue originally recorded at 6.2.8 was amended to replace a date range with a specific date. It changed from ‘Did the Respondent from August to October 2023, via other members of staff, (Luis Ventura) send the Claimant emails and texts late at night or after working hours?’ to ‘On 25th August 2023, did the Respondent, via other members of staff, (Luis Ventura) send the Claimant emails and texts late at night or after working hours?’ We allowed the amendment to this issue. [3] The Evidence[7]We were provided with the following documentary evidence: 7.1. an agreed trial bundle (1,400 pages); 7.2. the Van Clarke price list dated November 2024; 7.3. A report showing which of the Claimant’s clients that received a discount; 7.4. Promotional statement by Respondent referring to 16 hairdressing awards (added at Page 1401); Page 5 of 53 7.5. An email dated 20th November 2024 from Denise Robinson relating to 5 new starters, including the Claimant (added at Page 1402); 7.6. The Claimant’s Partner’s Drawings Statement for 2023 (added at Page 1403); 7.7. Repayment of Capital Contribution to the Claimant and commission payment for Sarah Powell, a ‘family’ no charge client (added at Page 1404).[8]We were provided with the following video film extracts: 8.1. Video extract of the salon on 22nd July 2023 showing an exchange between the Claimant and Michael Van Clarke (angle 1); 8.2. Video extract of the salon on 22nd July 2023 showing an exchange between the Claimant and Michael Van Clarke (angle 2); 8.3. Video extract of the salon on 22nd July 2023 showing an exchange between the Claimant and Michael Van Clarke (angle 3); 8.4. Video extract of the salon on 22nd July 2023 showing an exchange between the Claimant and Michael Van Clarke (angle 4); 8.5. Video featuring Roy Gillan dated 16th August 2023; 8.6. Video extract of meeting on 19th September 2023; 8.7. Video said to evidence an agreement regarding a 4 day week; 8.8. Video extract relating to birthday cards; 8.9. Video extract of fact finding meeting; 8.10. Video extract regarding non-attendance at an evening soiree; 8.11. Video extract relating to Millie Rose; 8.12. Video extract of Sara Wheater grievance meeting.[9]We were provided with the following written submissions: 9.1. Closing written submissions from the Claimant; 9.2. Closing written submissions from the Respondent. Page 6 of 53[10]We were provided with witness statements from individuals who did attend Tribunal and who gave their evidence under oath: 10.1. The Claimant’s witness statement (47 pages); 10.2. Michael Van Clarke’s witness statement (17 pages); 10.3. Lisa Ortelli’s witness statement (2 pages); 10.4. Sara Wheater’s witness statement (1 page);[11]We were provided with the following witness statements from individuals who did not attend to give oral evidence. The Tribunal read the statements but attached little weight to them, as their statements could not be challenged in Court: 11.1. Ms Ana Margarida Diogo Pereira (for the Claimant); 11.2. Mr Gustav Welhilmus Fouche (for the Claimant); 11.3. Ms Giorgia Marta Frau (for the Claimant); 11.4. Mr Roy Gillan (for the Respondent); 11.5. Mr Mitchell Scott (for the Respondent); 11.6. Ms Summer Langton (for the Respondent); 11.7. Mr Mohammed Ettaladiou (for the Respondent). [4] Findings of Fact[12]We have not recited every fact in this case or sought to resolve every dispute between the parties. We have limited our analysis to the facts that were relevant to the Issues that we were tasked to resolve. We made the following findings of fact on the basis of the material before us, taking into account contemporaneous documents where they exist and the conduct of those concerned at the time. The Tribunal resolved such conflicts of evidence as arose on the balance of probabilities, taking into account its assessment of the credibility of the witnesses and the consistency of their evidence with the Page 7 of 53 surrounding facts. Findings of fact related to a specific issue that we have been tasked to resolve are set out in our Conclusions section below.[13]We deal first with our factual findings relevant to the nature of the working relationship. As we have already stated in our introduction, the Claimant commenced her engagement with Michael Van Clarke LLP, the Respondent, in the role of Colour Technician on 2nd December 2014 [377]. The Respondent had been created as a Limited Liability Partnership on 21st November 2006, governed by an original Partnership Agreement dated 1st May 2007 [93]. It operated from premises at 1 Beaumont Street, London, W1G 6DF. Mr Michael Van Clarke was the partnership’s Founder Member. The Partnership Agreement has been revised over the years and the version signed by the Claimant was dated 1st August 2014 [93]. In respect of that agreement: 13.1. Clause 7 (at [96]) identified the Founder Members and Ordinary Members (including the Claimant) and their capital contributions as set out in Part 1 of Schedule 3 of the Agreement; 13.2. Clause 11.4 (at [98]) sets out the matters that were to be determined by simple majority vote and certain other matters, including the expulsion of a member, that required the approval of the Founder Member; 13.3. Clause 12 sets out the Members’ duties and included an obligation to comply with the reasonable directions of the Founder Member and to conduct themselves with integrity and the highest professional standards. 13.4. Clause 12 also required Ordinary Members (including the Claimant) to devote two evenings per month to the training of apprentices and employees of the Partnership. 13.5. Clause 19 (at [103]) sets out the process for, and reasons for, the expulsion of a Member from the Partnership. 13.6. Part 3 of Schedule 1 sets out the names and addresses of the Ordinary Members (including the Claimant). Page 8 of 53 13.7. Part 4 of the same Schedule sets out the number of votes held by Members. The Founder Member held 44 votes. Gary Rosenthal held 6 votes and Louise Ortelli 2 votes. All of the remaining 16 Ordinary Members, including the Claimant, held 1 vote each. This had the effect of ensuring that the Ordinary Members could not out vote the Founder Member on any issue. 13.8. Schedule 2 (at [108]) sets out the Profit Shares with a Base Level Profit Share, and Second Level Profit Share and a Third Level Profit Share. It also confirmed that losses of the LLP shall be limited to the Capital Contributions of the Members, as set out in Schedule 3 (£100 in the Claimant’s case).[14]On 13th November 2014 Mr Van Clarke emailed the Claimant to offer her the position of Technician to start on 2nd December 2014 [377]. The letter contained the following information about pay: ‘Your drawings each month will be 33% of your net technical takings. At the end of the year there will be a further sharing of salon profits for the year and these are usually paid in February. Total operator average last year was 36.9% as a ratio of their net takings and this has been rising steadily each year. You will also receive retail Commission. Currently up to 20% depending on your sales. We will allow minimum drawings of £2000 per month for the first three months while you settle in but I would expect them to be above that from month 2 or 3 anyway.’[15]On the day that the Claimant started, 14th December 2014, she signed a ‘Technician Profit Share’ letter [1291]. The letter confirmed that the Claimant was bound by the Partnership Agreement. It set out that the Claimant’s profit share would be based on a minimum of 230 days attendance per year and calculated by reference to 26% of her Technical Revenue. We pause to note that 230 days a year, equates to 365 days minus weekends and 31 other days. The Partnership Agreement anticipated that the Claimant would not be Page 9 of 53 in work for weekends and holidays. It then set out the basis for the Level 2 and Level 3 profit shares. The 2014 ‘Technician Profit Share’ letter did not contain any right of substitution and as such was a contract to personally provide the services of Colour Technician to the LLP. It said nothing expressly about holidays, save for noting that it was anticipated that 230 days would be worked.[16]The Claimant was also provided with a Salon Induction Manual [53]. The Manual defined the various categories of people engaged at the Salon, as follows: 16.1. Employer: Michael Van Clarke LLP; 16.2. Partners: Members of Michael Van Clarke LLP; 16.3. Employees: All employees of Michael Van Clarke LLP; 16.4. Associates: All associates working in the Salon inclusive of Beauticians and caterers.[17]The manual contained somewhat prescriptive Salon rules on a range of matters such as lateness, training days, personal appearance, hygiene, dress codes, mobile phones, personal calls and body language. It contained a section of general rules [67] which included ‘no eating or chewing gum on the salon floor’. The imposition of those rules imposed a substantial amount of control by the Partnership over both its Employees and its Members.[18]On 1st January 2019 the Claimant signed an amended new Technician Profit Share letter [111]. It referred to a new LLP Membership Agreement dated 1st September 2018 (which we have not seen). Otherwise, it was drafted in very similar terms to the 2014 Technician Profit Share letter, with identical clauses on Base Profit Share, Days worked, etc. It did contain two new clauses which were absent from the 2014 letter. Those two clauses are important and are as follows: Page 10 of 53 [11] Whilst the LLP expects that in normal circumstances you would wish to fulfil all your salon bookings yourself you are entitled, should there be a good reason why you may not be able to fulfil any booking, to arrange for that booking to be fulfilled by another person on your behalf, subject to the LLP being given reasonable notice thereof and being satisfied that the substitute has the necessary skills to fulfil the booking on your behalf. [12] Your profit share is calculated on the basis that you are not entitled to holiday pay. In the event that you claim you are entitled to holiday pay or that in any circumstances it is determined that you are entitled to holiday pay, your profit share will be subject to adjustment accordingly.[19]Once signed by the Claimant, the terms of the 2019 letter replaced the terms of 2014 letter. Clause 11 added a right of substitution. This allowed the Claimant the right (all be it qualified by notice and suitability) to send another in her place to perform her duties. Whilst we did not have any evidence that the Claimant had ever sent a substitute technician to colour hair in her place, the amendment to the 2019 terms meant that she could. The effect of this substitution clause was such that from 1st January 2019 the Claimant could no longer be said working under a contract to perform personally any work or services for another party, as she could send someone else instead. Clause 12 made clear that the days worked (upon which the profit share was based) excluded holidays. This had the potential to increase the Members profit share because holidays were unpaid.[20]In October 2021 the Claimant chose to cut back her days worked from 230 days a year to 184, by taking Thursdays off. Thereafter, she did occasionally attend at the Salon on Thursdays to see one or two clients that she had messaged directly.[21]The Claimant’s Partner’s Drawings 2019 [178] showed her Technical Takings of £139,063.14 from which her 1st, 2nd and 3rd level profit shares generated £45,890.18. The Claimant’s Partner’s Drawings 2020 [176] showed her Technical Takings of £73,273.43 from which her 1st, 2nd and 3rd level profit Page 11 of 53 shares generated £24,180.23. The Claimant’s Partner’s Drawings 2021 [175] showed her Technical Takings of £96,891.89 from which her 1st, 2nd and 3rd level profit shares generated £31,781.25. The 2020 and 2021 figures were adversely affected by the pandemic. It is of note that the Claimant was never furloughed as an employee; she made a request to HMRC for a self-employed grant to assist her during the pandemic lockdowns. The Claimant’s Partner Drawings for 2022 improved [177], with Technical Takings of £154,328.50 from which her 1st, 2nd and 3rd level profit shares generated £51,845.23.[22]In her April 2020, April 2021 and April 2022 Tax Returns [202, 181 & 225] the Claimant ticked ‘no’ to income from employment, ‘no’ to income from selfemployment and ‘yes’ to income from Partnership.[23]In January 2023 the LLP updated its Salon manual with a revised ‘Member & Employee Manual’ [119]. Like its predecessor it also defined the Employer, Members, Employees and Associates. In specified 5 conduct rules, including ‘do not chew gum or eat in the salon outside the Deli area’. It contained a number of prescriptive rules and set out a grievance and disciplinary procedure. Whilst this version separated out ‘Members & Employees’ in its title, there was nothing within it to delineate which provisions applied to which type of engagement, such that it can be interpreted to mean all provisions applied to both types of engagement.[24]At various points in her written statement and her oral testimony in Tribunal the Claimant accepted that she was, and she knew she had been, a partner at the Respondent. For example in her statement at [RVL27] ‘We, the partners, had to request the annual partnership meeting’, and during cross examination ‘I knew I was being offered a partnership and was aware of my rights as a Partner’1[25]Having set out the relevant facts on employment / partnership status, we will move onto the factual circumstances relevant to the Claimant’s claims. 1 Day 2, before mid-morning break Page 12 of 53[26]As stated, the Partnership Agreement contained a provision requiring the Claimant to provide training to apprentices. An example of a training rota is at [976]. In her witness evidence the Claimant told us: [65] I was required to provide training to apprentices and new members of staff …. unpaid and on alternative Mondays which was my day off. [66] Each training day would start in the morning and finish around 4:00pm. No training days were ever paid to any member of staff or partners except to Michael Scott and Summer Langton.[27]The Claimant asserts that Scott and Langton, who were both stylists, and excolleagues of hers, were paid to provide training to apprentices. Both were British by nationality. In her Claim Form [34] the Claimant asserts that she was not paid to provide training because she was Spanish and/or Non-British. She compared her non-payment as less favourable treatment compared to the treatment afforded to the British pair of Scott and Langton. She mentioned this to Michael Van Clarke by email on 8th May 2023 as part of her explanation for stepping back from training. She stated ‘Summer and Michael have been getting paid for training for a number of months now they're keen and comfortable doing training, I am not’.[28]Michael Van Clarke does not dispute that Scott and Langton were British, or that they received a payment to provide training. He believed them both to be in different circumstances to the Claimant, which he explained in his witness statement [MVC22] as follows: ‘RVL refers to two team members who are partners who provide training for the salon Academy styling department. The model for this training is different to the technical colour department that RVL was part of, she stated that because they are British they were getting paid for training this is not true as the training for the styling apprentices is a different model. No stylists are excused from the contracted evening training, but the two partners she refers to given a different arrangement to take a managing partner position for running the entire younger styling team. It also meant coming in for a whole day Monday Page 13 of 53 twice a month not just tagging an hour (sometimes) onto 2 evenings per month. …. This was an opportunity for them to raise to managing partners of the entire younger styling team. …. For this they received a payment of £150 per Monday session they also oversaw and have responsibility for the apprentices development throughout the week.’[29]The disparity in pay continued until the Claimant refused to provide any further training on 28th January 2023. She did not train apprentices after that point, stating (at [RVL69] ‘from then on I gave no more training’. Any difference in treatment between the Claimant and Michael Scott and Summer Langton ended on 28th January 2023.[30]As referred to above, on 12th January 2023 the Claimant sent a WhatsApp communication to Louise Ortelli [979] in which she stated that she did not feel comfortable doing training anymore. She confirmed her intentions in an email sent the same day [1334]. She received no reply, so on 28th January 2023 [471] she made a peremptory decision to stop, stating, ‘I would like to remove myself from training. I know I've already contacted you about this, but as I haven't had a reply I thought it would be polite to send a reminder before I remove myself. I won't be staying for training any more’.[31]On 5th May 2023 (just over three months later) Mr Van Clarke wrote to the Claimant on the issue of her ceasing to provide training to apprentices [478]. He said: ‘Clause 12.2 the partnership document clearly states that all operators are to devote 2 evenings per month for the training of apprentices and employees. The commissions for technicians have been set higher to allow for this period of work when Commission is not earned. …. Contribution giving back / paying it forward is part of the culture of the Salon and it's important that this is done willingly. It really isn't fair to the apprentices otherwise and that harms us all. As I no longer have the time or the temperament to deal with the friction and unpleasantness that situation causes I will separate this function from commission and from May, Technicians will be paid separately for Page 14 of 53 training outside of their normal hours. …. Monthly drawings going forward will be 32% of net earnings 32% of net takings plus a fixed amount for training between £50 and £150 per session. This is the fairest way if training is unequally shared, as it ensures those who deliver the training receive the payment.’[32]On 11th July 2023 the Claimant sent Louise Ortelli a Whatsapp communication complaining that she had been paid less than she had been expecting [981]. Ms Ortelli explained that she had not been underpaid, just that the training element had been separated from commission and paid separately. This lead the Claimant to file a formal grievance on 13th July 2023 [269] regarding what she considered to be an unlawful deduction from her pay. Within the body of that grievance she said: ‘the only unfortunate obvious difference I can see to this date between Michael Summer and Steve with Bernie and I is that they are British and we are not. I feel discriminated’ [271].[33]This meant that the Claimant’s complaint about the deduction from her pay raised a complaint about discrimination. It therefore qualified for the protection of s27(2)(d) EqA. The act of submitting the grievance was a ‘protected act’ for the purposes of the EqA.[34]Also on 11th July 2023 Lorraine Curl made a statement confirming that a client, Lisa Barnet, complained about a blow-dry attempt after a straightening treatment [1285]. Ms Barnet was upset that the Claimant had tried to blame the outcome on a recent illness of Ms Barnet’s. On 15th July Millie Rose made a statement that another client, Nicole Ronson, wasn’t happy with her colour and that the Claimant had suggested it was just the light [1286].[35]On 22nd July 2023 there was an incident on the Salon floor. We have watched the same incident from a number of different CCTV cameras in the Salon. None had sound. On the video feeds the Claimant can be seen standing at a Page 15 of 53 computer terminal, referred to as the Tower. Mr Van Clarke leaves his work station and admonishes the Claimant. The videos do not reveal why, or at what volume the admonishment occurred. It is clear that Mr Van Clarke did however get inappropriately close into the Claimant’s personal space and was gesticulating at her in an ardent manner, from very close up. The Claimant asserts [RVL83] he shouted ‘are you going to break all the rules at this Salon you can't chew chewing gum’ and that he called her ‘unprofessional’ and ‘disgusting’. In cross examination of Mr Van Clarke denied shouting but accepts that he did say ‘are you going to break all the rules at this Salon’.[36]The Claimant says she was shouted at for chewing gum. Other angles reveal that Mohammed was on reception and a customer also at reception (both of whom were only a few feet from the Claimant) and that neither reacted at all to any raised volume or shouting. Neither stirred or even looked up. One angle also appears to show Mohammed’s jaw moving in a way that suggests he might also have been chewing. On the balance of probabilities we consider that Mr Van Clarke did admonish the Claimant for chewing on the Salon floor, but that he did not shout. That said, he gesticulated right in the Claimant’s personal space in manner that we consider inappropriate in the modern workplace.[37]This incident lead to the Claimant’s 2nd grievance, dated 24th July 2023 [280]. This 2nd grievance made no reference to any allegation amounting to a contravention of the EqA, as the Claimant accepted during the course of her evidence. The 2nd grievance was not a protected act for the purposes of s27(2)(d) EqA.[38]On 1st August 2023 Mr Van Clarke wrote to the Claimant in response to her 1st grievance, to remind her of her Partnership Agreement obligations to provide training to apprentices and to reiterate that the decision to reduce profit share and then pay separately for training was non-negotiable. Page 16 of 53[39]A meeting to discuss the 2nd grievance took place between the Claimant and Lisa Ortelli on 16th & 17th August 2023 [304 & 313]. The focus was on whether the Claimant was shouted at, by reference to the various videos of the incident. During the 2nd meeting Ms Ortelli said ‘OK part of what I've been doing, other situations have come alive, and that is going to mean that we need to do a fact finding exercise, and that basically involves that there has been some allegations against you’ [315].[40]On 25th August 2023 the in-Salon Deli Manager, Luis Ventura, made a complaint against the Claimant. He complained that the Claimant had left a piece of used chewing gum on a plate in the Deli.[41]In late August 2023 the Claimant had a WhatsApp exchange with an excolleague, Diana Mazela, who had been a Colour Technician with the Claimant. We were told that the two individuals did not get on, and that for a time Ms Mazela was the Claimant’s nemesis. In the Whatsapp exchange the Claimant and Ms Mazela (now working for a rival Salon) discussed communications that Michael Van Clarke had had with Ms Mazela after the receipt of the Claimant’s 1st grievance. The exchange reveals the following [984-992]: 25th August 2023 at 14.35 [989] DM: [Michael Van Clarke] also spoke to me about you, but I prefer to tell you on a phone call. 30th August 2023 at 18.27 [992] DM: He’s stressing me out. He jumps between ‘I want you back’ and I’m going to sue you. 7th September 2023 at 9.11 [988] DM: He didn't ask me to write bad things about you he just asked me about your behaviour he said you did something really bad and now he wants to do something about the situation. 7th September 2023 at 9.35 [984] Page 17 of 53 DM: Before I started in the new salon I received a phone call from him where he told me he wants to get rid of you. But he didn't ask me to do anything apart from telling me what you were doing in the Salon. 7th September 2023 at 9.38 [986] DM: I think he wants someone to write a statement against you. He didn't ask me personally but I get that he cannot just fire you he needs something.[42]Louise Ortelli sought to arrange a fact-finding meeting to investigate the complaint. This was not a straightforward exercise as the Claimant was not willing to attend and ultimately had to be told that refusal to engage in the process would be seen as a gross misconduct offence [327]. Eventually the meeting did take place on 9th September 2023 [328]. At it the Claimant admitted ‘on my list was doing my nails that morning so I ordered a coffee and I put the gum in the saucer, yeah, with the intention to throw it away, yeah.’ [328].[43]On 16th September 2023 the Claimant was sent an invitation to attend a Partners Conduct Disciplinary Hearing arranged for 19th September [356]. The letter warned of a possible final written warning, which may subsequently lead to suspension or expulsion from the LLP. It set out the following list of incidents to be considered: 43.1. Unprofessional conduct in abandoning an unhappy client in the colour studio before she was finished and going home on Friday 21st July 2023; 43.2. Failure to carry out reasonable instructions of supervisor with regards to chewing of gum. Saturday 22nd July; 43.3. Failure to carry out reasonable instruction of supervisor over stock control and handling of stock check sheets when asked; 43.4. False and malicious allegations leading to a breakdown in trust in relationship with management July to present; Page 18 of 53 43.5. Unprofessional conduct and dealing with post service client complaints (Lorraine’s client on 11th July); 43.6. Unprofessional conduct in dealing with post service client complaints (Millie Rose’s client on 15th of July); 43.7. Harassment and bullying of both these team members in front of colleagues (14th & 15th July); 43.8. Aggressive behaviour towards and swearing at Louis in front of a colleague after again chewing gum in the salon (25th August).[44]At 4.33pm on 19th September 2023 (prior to the scheduled meeting start time of 5.15pm) the Claimant emailed Louise Ortelli to complain that she had not been given sufficient notice of the disciplinary hearing, stating, ‘therefore the meeting will have to be moved to another day’ [354]. Ms Ortelli replied in the following terms: ‘by the terms of the partnership, you have been given sufficient notice to attend this meeting. The items listed have been covered with you at the previous fact find meetings you are instructed to attend the meeting today at 5:15pm. Failure to attend will be seen as gross misconduct’ [354].[45]The disciplinary meeting did go ahead at 5.15pm on 19th September 2023 [334]. It lasted 49 minutes [351]. The transcript records the conclusion reached, as follows: ‘You are going to get a final warning. OK, and that's going to stay on file. OK, it's a final warning and should there be any further misconduct along these lines that constitutes gross misconduct, OK, or professional misconduct as far as the partnership is concerned it will be immediate expulsion OK’. Later that day, at 6.03pm, the Claimant was a sent a final written warning letter. The speed of production of the final written warning letter after the end of the meeting (pretty much instantly) suggests that it may have been prepared in advance. The warning letter concluded in the following terms [332]: ‘Since you have violated your expected code of conduct you're hereby put on a warning period for 12 months during which time we will Page 19 of 53 monitor your behaviour. The repeat of a similar offence will attract more serious consequences which can be followed by the suspension from the LP and salon or expulsion from the LLP and salon. We still believe that you can work collaboratively with your partners and add value to the partnership and expect you to undertake immediate improvements. We're looking forward to seeing your appropriate corrective action for your misconduct with immediate effect. If you need any help please let me know.’[46]This letter was not an expulsion. It was a final written warning of expulsion, to remain on the Claimant’s file for 12 months. It said that there was still a place for the Claimant, however, her behaviour was expected to improve.[47]On 26th September 2023 the Claimant filed her 3rd grievance against the LLP [361]. It accused the Respondent of manufacturing complaints against her and failing to follow a fair disciplinary procedure. It did not raise an allegation of discrimination and it did not qualify (nor did the Claimant suggest that it qualified) as a protected act under s27 EqA. Michael Van Clarke responded in an uncompromising manner, stating [364]: ‘There is no grievance procedure referred to in our LLP agreement. As a member of the LLP you have no right to one. We have tried to be fair and reasonable and have given you the benefit of a detailed process. This matter is closed and I will not consider your further grievance. Your actions are wasting valuable business time and causing damage and losses to your fellow LLP members who are becoming increasingly concerned. Your negative behaviour is not becoming of a member of an LLP and is in breach of the provisions of our LLP agreement. It needs to cease immediately. … To ensure the proper running of the salon business I require your unequivocal acknowledgement that there will be no repetition of these or similar incidents. Please speak to Louise urgently with a view to arranging a brief meeting between us to resolve this’.[48]The Claimant was then expelled from the Partnership on 4th October 2023. There was a very short meeting between the Claimant and Michael Van Page 20 of 53 Clarke. The transcript reveals just how bad tempered the exchange was [521]: [MVC] What are you going to do? Call me? Threaten me? How are you doing with the others? I know what you've been doing. Look, from this moment, from this moment, you are nothing to me. And don't contact me to harass me or bully me any further. I'm just letting you know. Do not contact me. You will hear from the solicitor. No, don't worry. Also Rocky, you're barred from the Salon. Don't go into the Salon. [RVL] I'm going to get my things. I don't want to come back here. Thank you very much. And I'll see you in court both of you.[49]The meeting was followed by a letter of expulsion, dated 4th October 2023 [1260]. It said, ‘we being the founder member as defined in the LLP agreement hereby give you notice pursuant to clause 19.3 of the LLP agreement of your expulsion as a member of the LLP with immediate effect’.[50]A staff discount form for the period 1st January 2023 until 31st October 2023 showed a 50% 3MI discount that the Claimant had received on hair products that she had purchased at a staff rate, amounting to a saving of £93.75. It also set out an ‘MVC authorised discount’ for clients that had received either free or discounted colour services by the Claimant. It revealed that commission had been paid to the Claimant for those clients in the sum of £982.00. PR/Press discounts and staff family discounts were recorded. For Mrs Sarah Powell the net value of services given to her amounted to £800 for which £256.00 was due to the Claimant as a commission.[51]We now turn to the relevant law. Page 21 of 53 [5] The Relevant Law[52]Employment Status. The first issue is the determination of the Claimant’s status whilst engaged with the Respondent. The starting point is s230 ERA, which states: ‘(1) In this Act ‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (2) In this Act ‘contract of employment’ means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. (3) In this Act ‘worker’ … means an individual who has entered into or works under (or where the employment has ceased, worked under):(a) a contract of employment, or(b) any other contract whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.’[53]To be an employee an individual must have entered into or work under a contract of employment, which is defined as a ‘contract of service’. Such a contract exists if three conditions are fulfilled. Firstly, in consideration of remuneration he will provide his own work and skill in performing some service for the employer. Secondly he agrees to be subject to the employer’s control in a degree to make the employer the master. Thirdly, the other provisions of the contract must be consistent with a contract of service.[54]The Respondent is a Limited Liability Partnership, set up in accordance with s1(1) of the Limited Liability Partnership Act 2000 (‘the Act’). The relevant parts of s4 of the Act, headed ‘Membership’ states: Page 22 of 53 ‘(1) on the incorporation of a limited liability partnership its members are the persons who subscribed their names to the incorporation document … (4) a member of a limited liability partnership shall not be regarded for any purpose as employed by the limited liability partnership unless if he and the other members were partners in a partnership he would be regarded for that purpose as employed by the partnership.’[55]S4(4) of the Act was considered by the Court of Appeal in Tiffin v Lester Aldridge [2012] IRLR 391. Lord Justice Rimmer set out the relevant law in the following way: ‘[31] ‘in law an individual cannot be an employee of himself nor can a partner in a partnership be an employee of the partnership because it is equally not possible for an individual to be an employee of himself and his co-partners. [32] ‘S4(4) … requires an assumption that the business of the LLP has been carried on in partnership by two or more of its members as partners; and, upon that assumption, an inquiry as to whether or not the person who status is in question would have been one of those partners. If the answer to that query is that he would have been a partner, then he could not have been an employee and so he will not be nor have been an employee of the LLP. … the finding was that the Claimant would have been a partner in the partnership there was no basis apparent which he might also be found to be an employee of it and so no scope for the further inquiry [into employment status]’.[56]Lord Justice Rimmer, having recited the facts in the case before him then reached the following conclusions, which is of use to us, in our analysis: [59] ‘A reading of the members agreement shows it to be tolerably obvious that it was intending to set up a relationship between the various signatures and adherents to it of a nature that, if analysed through the prism of the law relating to partnership … could fairly be regarded as a partnership relationship between the full Equity Partners and the fixed share partners. Of course their respective commercial interests in the firm were materially different, with the full Equity Partners putting in a good deal more into it in the way of capital and also expecting to get a good deal more out of it in the way of profits, as Page 23 of 53 well as having a materially greater voice in its management. But the character of the interest in the firm of those two classes of the LLP's members were nevertheless a essentially the same. All had to contribute capital. All had a prospect of the share of profits depending on the performance of the LLP in any particular accounting year. All had a prospect of a share in the surplus assets on a winding up, all had a voice in the management of the affairs of the LLP. The relevant contrast drawn between the members agreement is not between the full Equity Partners and the fixed share partners. It is between those two classes of partner on the one hand and the salary partners on the other - with the members agreement making it clear that the latter are employees. They make no capital contribution, have no share of the profits, no share in the surplus assets on a winding up and no voice as of right in relation to the management of the firm’.[57]The next issue is whether a partner of an LLP could also be a worker of that LLP. The analysis is different. In Bates Van Winkelhof v Clyde & Co LLP [2014] IRLR 641, SC, Lady Hale said that a partner was likely to meet the general definition of worker in s230(3)(b) ERA so the question became whether there was anything to negate that status. She acknowledged that ‘subordination’ can sometimes be an aid to distinguishing workers from other self-employed people. She noted (at paragraph [9]) that the Employment Tribunal had found that the Claimant ‘worked under a contract to do or perform personally work or services for the LLP’ but fell outside of the second part of s230(3)(b) ERA because she was in business in her own right because she received a share of the profits of the LLP. With regard to the obligation to perform work personally Lady Hale noted the finding (again at paragraph [9]) that she could not offer her services to anyone else; there was no right of substitution. It was common ground that the Claimant in Bates Van Winkelhof v Clyde & Co LLP was engaged under a contract personally to perform work or services to the LLP (at paragraph [14]). Lord Clarke noted that ‘by the terms of the [Claimant’s] contract with the Respondent LLP she undertook to perform personally certain work or services for it and its status Page 24 of 53 was not by virtue of the contract that of a client or customer’ (at paragraph [47]).[58]Thus, in determining worker status we need to consider the Claimant’s contract with the Respondent to determine whether there is a provision within it that is inconsistent with worker status, including the obligation to perform services personally and the requirement that the relationship not be one of client and customer, in which the LLP is the Claimant’s client.[59]Harassment (s26 EqA). Section 26(1) of the EqA 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 violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.[60]The test for conduct "related to" a protected characteristic is wider than the test for direct discrimination, which requires treatment "because of" a protected characteristic. Where the words used are not inherently discriminatory, context will be important.[61]To succeed in a harassment claim a claimant either needs to prove that the conduct had the purpose of violating her dignity/creating a hostile environment and/or that it reasonably had that effect on her. Page 25 of 53[62]It is not enough for the victim simply to claim that the unwanted conduct violated their dignity or created an environment that was intimidating, hostile, degrading, humiliating or offensive to them. The Tribunal must also decide that it is reasonable for that to be the effect. In reaching their view on this, the Tribunal must take the victim's perception into account (s.26(4)(c)).[63]Case law indicates that an individual’s dignity is not necessarily violated “by things said or done which are trivial or transitory, particularly where it should have been clear that any offence was unintended" (Richmond Pharmacology Ltd v Dhaliwal [2009] I.C.R. 724 (2009) at §22).[64]Harassment claims require 3 elements (Dhaliwal), namely(i) unwanted conduct;(ii) having the purpose or effect of either (a) violating the claimant's dignity; or (b) creating an adverse environment;(iii) which are related to the Claimant’s protected characteristic.[65]In order to decide whether the conduct has either of the proscribed effects under sub-paragraph (1)(b) a Tribunal must consider both whether the putative victim perceives themselves to have suffered the effect in question and whether it was reasonable for the conduct to be regarded as having that effect Reverend Canon Pemberton v Right Reverend Inwood, former acting Bishop of Southwell and Nottingham [2018] IRLR 542, CA.[66]The statutory words ‘intimidating, hostile, degrading, humiliating or offensive’ are important. Elias J stated in Land Registry v Grant [2011] IRLR, 748, CA ‘Tribunals must not cheapen the significance these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment’.[67]Direct Discrimination. Section 13 EqA defines direct discrimination as: Page 26 of 53 13. Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[68]The comparison in direct discrimination cases must be a comparison focussing on the individual claiming to have been discriminated against (Her Majesty’s Chief Inspector of Education, Children’s Services and skills v Interim Executive Board of C School [2017] EWCA Civ 1426). There are two aspects to direct discrimination that must be considered. One is less favourable treatment and the other is the reason for it. Whether less favourable treatment is proven requires a comparison to a suitable comparator. There is a general requirement that there be no material difference between the people being compared either actually or hypothetically. Where there is more than one reason put forward for the alleged treatment it must be a significant factor, being more than trivial (Barton v Investec Henderson Crosthwaite Securities limited [2003] IRLR 332).[69]The characteristic needs to be a substantial or effective cause of the discriminatory treatment but doesn’t need to be the sole or intended cause of it (R v Commission for Racial Equality, ex parte, Westminster City Council [1984] IRLR 230). The Claimant bears the initial burden of proof (Ayodele v Citylink Limited [2017] EWCA Civ. 1913). Unreasonable behaviour of itself is not evidence of discrimination (Bahl v The Law Society [2004] IRLR 799). 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 the Claimant’s race.[70]Victimisation. Section 27 defines victimisation as follows: Page 27 of 53 27 Victimisation (1)A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a)B does a protected act, or (b)A believes that B has done, or may do, a protected act. (2)Each of the following is a protected act— (a)bringing proceedings under this Act; (b)giving evidence or information in connection with proceedings under this Act; (c)doing any other thing for the purposes of or in connection with this Act; (d)making an allegation (whether or not express) that A or another person has contravened this Act.[71]The starting point is that there must be a clear allegation amounting to a protected act. The employee must be subjected to a detriment, ie placed at a disadvantage. Detriment is established if treatment is of a kind that a reasonable worker would or might take the view that in all the circumstances it was to their detriment (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL). The detriment relied upon by the Claimant, must be linked to the protected act.[72]Time. In considering whether to extend time on the just and equitable basis, a Tribunal must consider the balance of prejudice as between the Claimant and Respondent. These include: 72.1. The length of and reasons for the delay; 72.2. The extent to which the cogency of the evidence is likely to be affected by the delay; 72.3. The promptness with which the Claimant acted once she knew of the facts giving rise to the claim; 72.4. The steps taken by the Claimant to obtain appropriate professional advice once she knew that a claim could be brought; and, 72.5. The promptness with which the Claimant acted once she know of the facts giving rise to the claim. Page 28 of 53[73]The relative hardship prejudice to the parties in allowing or disallowing the extension is a relevant factor in determining a just and equitable extension.[74]The Money Claims. These are the Claimant’s claims for holiday pay, notice pay, unlawful deductions from pay and breach of contract. We have not recited the applicable law relating to the determination of these claims in this section of our Judgment, because for the claims to progress the Claimant must first establish that she was either an employee of the Respondent, or a worker. We have dealt with that in our Conclusions section below, and will consider the law applicable to such of those claims that can proceed, once we have reached our conclusion on employment / worker status. [6] Our Conclusions[75]We turn now to our conclusions on each of the Issues that exist between the parties. Employment status - Employee[76]Was the Claimant working under a contract of employment and therefore an employee of the Respondent within the meaning of s230(1) ERA? As stated above, s230 ERA, ‘(1) In this Act ‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (2) In this Act ‘contract of employment’ means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.[77]The Claimant’s claims of unfair dismissal, notice pay and breach of contract all require the Claimant to be an employee. If the individual whose status is in question is a partner then that individual could not also have been an employee. We find that there was no contract of employment between the Page 29 of 53 Claimant and the Respondent. All of the documentation demonstrates a clear Partnership, including: 77.1. the Partnership Agreement [93]; 77.2. the List of Members [96]; 77.3. the Letter of Appointment [377]; 77.4. the 2014 Profit Share Letter [1291]; 77.5. the 2019 Profit Share Letter [1295]; 77.6. the Partner Drawings for 2019 [178], 2020 [176]; 2021 [175] and 2022 [177]; 77.7. the Claimant’s Tax Returns for 2021 [181] and 2022 [224].[78]The relevant contract between the Claimant and the Respondent is a Partnership Agreement, not a contract of employment. Every other supporting documentation points to a Partnership. On that basis, the Claimant could not also have been an employee of the LLP. Once that finding, guided by Tiffin v Lester Aldridge [2012] IRLR 391, has been made that the Claimant was a partner in the partnership, there is no scope for the further inquiry to be made into her employment status. A contract of partnership is completely inconsistent with an employment contract.[79]In light of our finding that the Claimant was not an employee of the Respondent, her claim of unfair dismissal (s98(4) ERA), notice pay (s86 ERA) and breach of contract (s3 Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994) fail and are dismissed.[80]Had we concluded that the Claimant was an employee of the Respondent, we would have upheld her claim for unfair dismissal. Any conduct that the Claimant may have been guilty of was sanctioned by the Respondent with a final written warning. We consider that the Respondent acted unfairly when, just a few days after the written warning and without an apparent change in circumstances other than the raising of a 3rd grievance, it upgraded the Claimant’s disciplinary sanction from final written warning to expulsion. Page 30 of 53 Employment status - Worker[81]We turn now to consider whether the Claimant was a worker. The Claimant’s claims of holiday pay and unlawful deductions from pay require at least worker status. A worker is defined in s230(3)(b) of the ERA as follows: 81.1. working under a contract whereby the claimant undertook to do or to perform personally any work or services for the Respondent; and 81.2. the Respondent was not by virtue of that contract a client or customer of any profession or business undertaking carried on by the individual?[82]As stated above, the authority of Bates Van Winklehof v Clyde & Co [2014] IRLR 641 has determined for the purposes of a public interest disclosure detriment claim a Partner does qualify as a worker, as defined. The authority specifically indicates that the conclusion would encompass other worker claims such as unlawful deductions from pay and holiday pay. However, in Bates it was accepted by all that the Partner in that case qualified under the first part of the definition, because the Partner undertook to perform personally any work or service for the Respondent. There was no right of substitution. In this case, from 2019 the Claimant has had a right of substitution (by reference to clause 12 of the 2019 Profit Share letter). She did not have to perform personally any work or service for the Respondent. It is not necessary to find that she exercised that right; the fact is that she could, had she wanted to or had the need arisen. In the circumstances it simply cannot be said that the Claimant’s working arrangement with the Respondent falls within the first part of s230(3)(b) of the ERA.[83]In light of the Claimant’s right of substitution, her claims of holiday pay and unlawful deductions from pay must fail and are dismissed. Page 31 of 53 Time relating to the Harassment & Victimisation claims[84]Before turning to the Claimant’s claims of harassment and victimisation we must set out our conclusions on time for those claims. The Claimant notified ACAS of a dispute on 11th September 2023. She received her Early Conciliation Certificate on 5th October 2023 and presented her Claim Form on 3rd November 2023. The effect of this is that all incidents occurring prior to 12th June 2023 (namely three months less one day from the notification to ACAS) will be out of time unless part of a continuing act, or unless it would be just and equitable to extend time to allow complaints based on those incidents prior to 12th June 2023 to proceed.[85]Time is not an issue for the harassment and victimisation claims, as they all occurred in the period between July and October 2023. All are in time. Harassment related to Race (s26 EqA)[86]We turn now to the Claimant’s claim of harassment related to race. The Claimant status is not a consideration for the discrimination claims as the Claimant is protected from discrimination whether she is an employee or a partner. The Claimant relies upon the protected characteristic of race and more specifically nationality in the form of being ‘non British’. Our task is to determine whether nine factual events occurred, or occurred as the Claimant says, and for those that we conclude did take place, determine whether they were related to the Claimant’s race. Thereafter we consider whether they had the purpose or effect of harassing the Claimant, as defined by s26 EqA.[87]Taking each in turn, and identifying them by reference to the numbering in the List of Issues attached to the Case Management Orders of Judge Anderson and Judge Anthony, did the Respondent do the following alleged things: 87.1. [6.2.1] In July 2023 (in between grievances one and two) shout at the Claimant, calling her unprofessional, asking ‘are you going to break all the rules’. We have concluded that the above allegation is made out on its facts, save that Mr Van Clarke did not shout. Mr Van Page 32 of 53 Clarke asserted that 5 other people who were nearby did not corroborate that he shouted [MVC49]. However, the invasion of her personal space and the clear gesticulation in her face (admitted by Mr Clarke and clear from the video footage) was described by the Claimant as unprofessional and disgusting [RVL83]. We conclude that such behaviour would have engaged s26(1)(b) EqA (ie we would have considered it violated her dignity, or created an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant) had we found that the conduct related to her race or nationality. However, the reason for the treatment was the chewing of gum by the Claimant, which was an act specifically identified in the Partnership Agreement as not acceptable in the Salon. This was the reason for the treatment. We had no basis upon which we could conclude that chewing gum was in any way related to being Spanish and accordingly this allegation fails. 87.2. [6.2.2] In August 2023 or afterwards, did the Respondent ask other colleagues to write complaints against the claimant or telephoning ex staff asking if they wanted to join the company again if they provided statements saying that the Claimant had done something wrong in the past. During discussions on this issue the Claimant accepted that she was limiting this to two specific allegations. The first was that Luis Ventura had been asked to make a complaint about the Claimant leaving gum on a saucer in the Deli and the second that Diana Mazela, after she had left the Salon, had been asked to provide negative statements or stories about the Claimant in return for rejoining the Respondent and/or not being sued by the Respondent for setting up in breach of covenant. 87.3. The first allegation relates to Luis Ventura. In her witness statement [RVL111] the Claimant gave us the following evidence: ‘in one of the WhatsApp audio on 25th August 2023 Mr Ventura confesses that Mister Van Clark has asked him to talk badly about me in the format Page 33 of 53 of a statement’. However, when one looks at the WhatsApp exchange of that day, Mr Ventura makes no such admission. The WhatsApp exchange on that day is as follows [599-600]: [RVL]: Can I ask why you shouted at me and called me disgusting today? I walked from the street with the gum and I didn't realise I left it there. In the last nine years that happened maybe once or twice and you laughed about it I also thought you were my friend. You've been to my house many times. Why this outburst? [LV]: Luis Ventura then left two voice notes (which were not available to us). [RVL]: thanks for the explanation I really appreciate it. I've been bullied really badly and people have told me Michael is trying to get them to say bad things about me this is super stressful and this morning it looked like you were taking part in it. Of course I'm sorry about leaving the chewing gum there I didn't even realise. I just felt attacked in the moment. [LV]: I'm neutral in the situation is not healthy for me or my business to get involved …. I didn't call you disgusting and if it felt that way I'm sorry as I meant the situation of leaving gum like that is disgusting and it was only after you called me an arsehole and told me to piss off which I didn't appreciate at all. … in the heat of the moment I did mention to Michael that happened but not much was said from either side. … Not everyone in the salon is against you Rocky but I do believe you overthink the situation sometimes this makes your judgement on people wrong like with me this morning.’ 87.4. There is nothing in this exchange that comes close to Luis Ventura admitting that Michael Van Clarke asked him to talk badly about the Claimant in a statement. Mr Ventura admits telling Mr Clarke about the incident but does not say or suggest that Mr Van Clarke asked him to think of bad things to say. Doing the best we can with the evidence available to us we consider that there is no evidence upon which we could conclude that Mr Van Clarke canvassed Mr Ventura for negative things to say about the Claimant, and this allegation fails on its facts. Page 34 of 53 87.5. Turning to the allegation that Mr Van Clarke asked Diana Mazela to provide negative statements about the Claimant, perhaps in return for coming back to the Respondent or not being sued, we have already recited in full the exchange between Ms Mazela and the Claimant. Ms Mazela said: ‘He didn't ask me to write bad things about you he just asked me about your behaviour’ ‘Before I started in the new salon I received a phone call from him where he told me he wants to get rid of you. But he didn't ask me to do anything apart from telling me what you were doing in the Salon’ ‘I think he wants someone to write a statement against you. He didn't ask me personally but I get that he cannot just fire you he needs something’. 87.6. The Claimant relies on these exchanges as establishing that Mr Van Clarke did ask Diana Mazela to write bad things about the Claimant, however we find the opposite. Ms Mazela was at pains to state that no such request had been made. In the circumstances, this allegation fails on its facts and is dismissed. 87.7. [6.2.3] The Respondent admits that it did dismiss the Claimant and/or expel her from membership of the LLP. In the circumstances this allegation is established on its facts. We also find that the dismissal would have been a humiliation for the Claimant. The issue for us then, is whether the dismissal was related to the Claimant’s race or nationality of being Spanish or non-British. We have already stated that the issuing of a final warning, to be replaced with a expulsion only a couple of weeks later without any clear deterioration in or repeat of the Claimant’s behaviour, was unfair. Was it related to her nationality? The Respondent did have concerns about the Claimant’s behaviour Page 35 of 53 that it had raised with her. When questioned by me on this issue and asked to explain how her expulsion was related to her race, the Claimant said that it was because she had raised a race grievance. This, of course, is an important answer in the context of the Claimant’s victimisation claim, which we will turn to shortly. However the reply demonstrated that even the Claimant could not articulate what it was about her dismissal (aside from the discrimination grievance) that was related to her nationality or to not being British. We could not discern any relationship either. In the circumstances we concluded that the Claimant had failed to establish facts from which we could conclude that her dismissal was related to being Spanish or not British. In the circumstances, this allegation is dismissed. 87.8. [6.2.4] In July 2023, did Louise Ortelli inform the Claimant that all the hair colours would be locked in an office downstairs and did not provide the Claimant with a key? We find that this allegation is partially made out on its facts. However the bare facts of the allegation do not explain the reality of what happened, and to that extent the allegation posed is misleading. The Technicians had full open access to a large quantity of hair colours. The photograph of the Technicians’ working area revealed open shelves with hundreds of colour tubes on them, we were told 900 tubes [1369]. There was no restriction on using these products. This meant that it was incorrect to asserts that all of the products would be locked into the office. On 29th June 2023 Mr Van Clarke sent a WhatsApp to the Technical Team [1368]. He explained that he had placed a very large forward order with Wella for colour product. He said that the technical dispensary (the shelving area with hundreds of colour tubes on) would be topped up and the additional Wella stock will be placed into the office. The additional stock was placed into the office that was generally locked. In the normal course of events, when the shelves ran low a technician, including the Claimant, could re-order stock from Wella. By Page 36 of 53 his communication Mr Van Clarke told the Technical Team not to place a new Wella order until the excess stock, which was stored in the office, had been used. 87.9. We find as a fact that the Claimant was told that excess product would be locked into the office, not all product. We find that the reason for the large forward order was to comply with the Respondent’s contractual arrangements with Wella and that storing the excess stock that could not fit on the shelves in the office was not related to the Claimant’s race and not conduct that was capable of harassing her, as defined by any of the conduct types in s26(1)(b) EqA. Accordingly this allegation fails and is dismissed. 87.10. We turn now to the additional harassment allegations that were added by way of amendment. 87.11. [6.2.5] In July 2023, after a staff meeting, did Mr Van Clarke shout at the claimant and ask reception to reduce appointments times? We find that appointment times were reduced in July 2023. In his witness statement [MVC45] Mr Van Clarke explained that during the pandemic lockdowns social distancing measures were put in place in the Salon. One such measure was extending the appointment times. By July 2023 the decision was taken to re-instate the pre-Covid appointment times. To that extent, reception was asked to reduce appointments times down from the extended pandemic time slots. It was not put to Mr Van Clarke in cross examination that he had shouted at the Claimant when the appointment times were reduced, and we have no basis for concluding that he did. The decision to return to pre-covid booking times was applied across the Salon and was not related to the Claimant’s nationality. We can see no basis for asserting that the decision was harassing or capable of harassing, as defined by s26(1)(b) EqA. This allegation fails and is dismissed. Page 37 of 53 87.12. [6.2.6] In August 2023, did the Respondent ask reception not to book the Claimant any clients from then on? This allegation relates to friction arising if a client’s time with a stylist overran, such that the appointment overran the end of the Claimant’s working hours. Mr Van Clarke said [MVC46] that ‘after a new client complained about the Rocky abandoning her at the end of the day, before she was finished but knowing she was unhappy with the colour result, Rocky left at 6:25pm. The salon closing time was 6:00pm. Rocky was spoken to and asked she would do the same in future if a similar situation occurred with a new client after salon closing time. Rocky said that she would leave the client. This is unprofessional and against Salon policy and so the reception team were advised not to book any new clients with Rocky in the late afternoon if it meant that appointments may not finish until after close of business day’. We conclude that like other allegations, there is some truth here, however the reality is more nuanced than the allegation. Reception was asked not to book late afternoon appointments for new clients with the Claimant, in case the appointment overran and the Claimant left the Salon before the appointment had ended. In discussion the Claimant accepted that the issue should have said ‘new clients’ and not ‘all clients’. As pleaded the issue is dismissed on its facts. To the extent that Reception was asked not to book new clients, the reason for this was to avoid the difficult situation arising in which the Claimant left before the client appointment had completed. This is not in any way related to the Claimant’s race or nationality and was not, on any analysis, harassing behaviour as defined by s26(1)(b) EqA. This allegation fails and is dismissed. 87.13. [6.2.7] From August to October 2023, did the Respondent ask and shout at the Claimant to attend meetings which clashed with customer appointments and refuse to permit the Claimant to reschedule such appointments? As we have recited in our findings of Page 38 of 53 fact, the Claimant and Lisa Ortelli clashed over the timings of investigatory and disciplinary meetings, resulting in Lisa being required to spell out that not attending such meetings could itself be seen as a gross misconduct offence. Lisa gave evidence on this issue [LO10] saying: ‘notice was given by e-mail and on occasion WhatsApp meetings were always booked within the claimant's diary column and we took care to ensure they were booked at times that would not clash with client appointments essentially technicians have no client facing work during the last hour of the salon day was they wait for the stylist to finish their clients we made use of this time for meetings.’ We were taken to diary screen shoots of the booking calandar. The week including 2nd September 2023 clearly showed meetings booked with the Claimant after her client appointments had ended [1085]. In the circumstances this allegations fails on its facts and is dismissed. 87.14. [6.2.8] On 25th August 2023, did the Respondent, via other members of staff, (Luis Ventura) send the Claimant emails and texts late at night or after working hours? As we have already noted, the Claimant narrowed this issue to one specific day, 25th August 2023. The original issue recorded in the List of Issues had this allegation spanning August to October, an extended period of time. The communications between Luis Ventura and the Claimant are recorded in full at [599- 600]. We recited the communications in connection with issue [6.2.2] above. It is necessary to consider the same exchange, this time in the context of the allegation that the Respondent, via Mr Ventura, was sending communications to the Claimant late at night or after working hours. The communications reveal the following: [RVL]: 6.41pm (after hours) initiates an out of hours conversation with Mr Ventura about why he had called her disgusting for leaving chewing gum on a plate. An explanation is provided by Mr Ventura over the next 5 minutes, to 6.46pm. Page 39 of 53 [RVL]: 7.24pm (after hours) initiates a continuation of the discussion, with a reply 9 minutes later by Mr Ventura. [RVL]: 8.15pm (after hours) initiates a further continuation of the discussion, with a reply 10 minutes later by Mr Ventura. [RVL]: 10.00pm (after hours) initiates a further continuation of the discussion, with a reply 3 minutes later by Mr Ventura, who attempts to end the chat by saying ‘Anyway, have a good night and see you tomorrow’. [RVL]: 11.58pm (after hours, at midnight) initiates a further continuation of the discussion. Mr Ventura responded at 5.42am. The chat ended with Mr Ventura being forced to write ‘I don't need your business nor do I want it and if you don't stop your harassment and bullying messages towards me I will escalate this further to Louise and Michael clear your catering and leave me alone.’ 87.15. It is clear from the above that it was the Claimant that instigated and continued communications with Mr Ventura, late into the night, and not vice versa. This allegation (that Mr Ventura was the instigator or late night comms) is demonstrably incorrect. It fails and is dismissed on its facts. 87.16. [6.2.9] The final harassment allegation is: In September 2023, did Lisa Ortelli prevent the Claimant from leaving the salon? The Claimant gives her evidence on this at [RVL114] and Ms Ortelli at [LO13-14]. We were assisted in our deliberations on this issue by the CCTV footage dated 22nd July 2023. It shows most of the Salon, including the reception desk. It is clear that behind the reception desk is a back office space. No door separates the reception from the office space, however it is clear that the gap between the two spaces is about as wide as a door, if anything narrower. This means that there would only be room for one person to pass from the reception area into the back office space and vice versa. It would also mean that anyone in the reception area and stood in the gap between the reception and the Page 40 of 53 office space, to speak to people in the office space, would be blocking the gap, and would have to step back to allow another person to pass. The Claimant recalls: ‘by the time I had finished with Gaynor Langley it was my time to go home and I had a dinner commitment. As I was leaving the salon Ms Ortelli telly tried to block my way out of the salon physically. The conversation was heated in front of my client I repeatedly asked Ms Ortelli to let me pass and I left’. 87.17. Ms Ortelli recalls: ‘I went into the salon to see the Claimant behind the reception with her coat on and her bags with her. I walked behind reception and stood at the entrance to the back of reception which is a very small area. I asked are you going to attend the meeting? She replied no. I said again words to the effect of ‘are you refusing to attend the meeting that's been booked with you’ she said she was leaving so I returned the way I came and went to the office to let Michael know she wasn't joining the meeting. If she believes I was stopping her from leaving then that was not true’. 87.18. We find on the balance of probabilities that this incidence occurred, and for the duration of the conversation between the Claimant and Ms Ortelli (best measured in seconds rather than minutes) Ms Ortelli was standing in reception at the threshold of the back office space, and no-one in that back office space, including the Claimant could have passed her. This incident was brief, it was not related in anyway to the Claimant’s nationality and we do not consider that it could have harassed the Claimant. This allegation fails and is dismissed. Victimisation (s27 EqA)[88]We turn now to the Claimant’s claims of victimisation. As we have already concluded in our findings of fact, the Claimant’s grievance dated 13th July 2023 [269] alleged race discrimination, which was an allegation that the Respondent had contravened the Equality Act. The grievance was a Page 41 of 53 protected act for the purposes of s27(2)(d) EqA. The Claimant accepted that her second grievance dated 24th July 2023 contained no such allegation and as such is not ‘protected’ for the purposes of s27.[89]Before turning to the allegations of detriment, it is necessary to set out our conclusions on how the Respondent reacted to the first grievance, which, as we have said, plainly contained an allegation of discrimination. I discussed this specific point with Mr Van Clark. He told the Tribunal ‘the reference to race in the grievance did not land with me at the time’. In his written submissions (on page 12) he said ‘the judge pointed out that I could be cleared of racism but if so affronted by the accusation of racism as to expel her that would be a cause for a claim. I brushed over her point of discrimination in her grievance of the 13th of July 2023 thinking it was a daft thing to say and thought no more of it’. Mr Clarke invites us to conclude that he did not react to the discrimination allegation when he read it and that he did not treat the Claimant detrimentally for raising it. In assessing the credibility of Mr Van Clark the Tribunal was unanimously of the view that his description of his reaction to the complaint had the ‘ring of truth about’ about it. Both the Salon’s staff and customers are multi-cultural and we accept that it operated without discrimination and that the allegation did not ‘land’ Mr Van Clarke as a problem when it was made.[90]Given that there was a protected act on 13th July 2023 we are now tasked with determining whether the three incidents of detrimental treatment relied on by the Claimant occurred, and if they did, what the reason for that treatment was. The treatment relied on for the purposes of the victimisation claim was the same acts that the Claimant relied on in the first three incidents of harassment. The first if those was as follows: In July 2023 (in between grievances one and two) shout at the claimant, calling her unprofessional, asking ‘are you going to break all the rules’. We have already found that there was no shouting, but invasive gesticulation instead. Mr Van Clarke did use the words attributed to him. However, we have found that he did so Page 42 of 53 because the Claimant was chewing gum, not because of any prior race complaint. Accordingly, this victimisation claim fails and is dismissed.[91]The next allegation is did Mr Van Clarke ask Mr Ventura and Ms Mazela to provide statements saying that the Clamant had done something wrong in the past. It has not been established when Mr Van Clarke contacted Ms Mazela. She said in her messages that it was before she joined her new Salon. Mr Van Clarke told us that she left the Respondent in June 2023. On the balance of probabilities we conclude that the call to Ms Mazela probably post-dated the grievance. However, we have found that the reference to race in the grievance was not in Mr Van Clarke’s mind and was not the reason for the call. We have also found that Mr Van Clarke did not ask for negative stories about the Claimant, as Ms Mazela stressed in her messages. We note that the Respondent arranged for an independent individual to deal with the Claimant’s grievance, Sara Wheater, and that Mr Van Clarke was happy for that process to run its course. In the circumstances, this act of victimisation fails and is dismissed.[92]The final detriment is the Claimant’s expulsion from the LLP. This happened on 4th October 2023 [1260]. The protected act occurred on 13th July 2023 [269], just under 3 months earlier. We consider that had the race complaint ‘landed’ with Mr Van Clarke, and had he wished to expel the Claimant for making the complaint, he would have done so prior to 4th October. Instead he arranged for an independent grievance hearing manager. He attempted to get the Claimant to engage in the complaints that had been made against her, leading to a final written warning issued on 19th September 2023 [332]. If race had been a motivation then the issue of a final warning, two months after the race complaint makes no sense and is inconsistent with the race complaint being a primary reason for the dismissal. The Claimant pushed back on the final warning, by issuing a third grievance (accepted by all not to be a protected act) on 26th September 2023 [361]. Mr Van Clarke’s reaction to that 3rd grievance on 2nd October was plain exasperation [364]. We conclude that it was the receipt of this grievance that pushed the Partnership into expelling Page 43 of 53 the Claimant 2 days later. Accordingly, this allegation of victimisation fails and is dismissed. Direct discrimination (s13EqA)[93]We turn to the Claimant’s direct discrimination claim. As we have noted, this was included within the Claimant’s Claim Form, but did not make it into the List of Issues. We re-instated it to the List of Issues. The Claimant’s nationality is Spanish. The alleged detrimental treatment is: Did the Respondent pay Michael Scott and Summer Langton (both British) for time spent training apprentices but not the non-British colour technicians for time they spent training apprentices?[94]As we have set out in our findings of fact, Michael Van Clarke does not dispute that Scott and Langton were British, or that they received a payment to provide training. On its face, therefore, the Claimant has established a difference in race/nationality and a difference in treatment, which was less favourable. Mr Van Clarke explained that he believed Scott and Langton to be in different circumstances to the Claimant. He said [MVC22] as follows: ‘… the two partners she refers to were given a different arrangement to take a managing partner position for running the entire younger styling team. It also meant coming in for a whole day Monday twice a month not just tagging an hour (sometimes) onto 2 evenings per month. …. This was an opportunity for them to raise to managing partners of the entire younger styling team. …. For this they received a payment of £150 per Monday session they also oversaw and have responsibility for the apprentices development throughout the week.’[95]There was no documentary evidence in the papers to support the assertion that Scott and Langton were being groomed for a managing partner position or that their training obligation was for the whole of Monday, rather than a couple of hours tacked on to the end of the day. There are facts from which we could conclude that a contravention of the Equality Act has occurred, Page 44 of 53 applying the burden of proof provisions in s136. Has there been an absence of any other explanation? Mr Van Clarke has provided an explanation in his witness evidence, but nothing by way of documentation to support it.[96]We conclude that a reason for this failing is likely to have been affected by the timing of the incidents in relation to this claim. The Claimant told us in evidence that she stopped doing training from 28th January 2023. Any disparity in pay for training between herself and Scott and Langton must have ended at that point (and could not have continued past it). This means that the last date this allegation could have covered ended some 8 months prior to the Claimant notifying ACAS of a dispute in September and 10 months prior to the presentation of her Claim Form. The allegation of direct discrimination was presented out of time. We have considered whether it would be just and equitable to extend time to allow the direct discrimination claim to proceed, as follows: 96.1. The length of and reasons for the delay. As stated ACAS were notified of a dispute on 11th September 2023 and the last date of any continuing discrimination was 28th January 2023. The Claim Form was issued on 3rd November 2023. By the time ACAS were notified of a dispute this claim was already just under 6 months out of time. We have not been provided with any acceptable reasons for that delay. 96.2. The extent to which the cogency of the evidence is likely to be affected by the delay. We consider it likely that the cogency of evidence on this point has been affected by the delay, given that Mr Van Clarke did not provide documentary evidence for his assertion that the circumstances between Scott and Langton were different to the Claimant’s circumstances. By the time the point had been taken by the Claimant over 10 months had passed since the discriminatory treatment had stopped. Page 45 of 53 96.3. The promptness with which the Claimant acted once she knew of the facts giving rise to the claim. It is clear that the Claimant was aware of the facts giving rise to this claim in January 2023. She did not raise the pay disparity with Scott and Longdon in any of her grievances, when she could have done so, at a time that would have allowed the Respondent to respond. Her first grievance related to the decision to reduce the profit share of everyone by a percentage point and then pay for training separately. On the issue of time limits, the Claimant said in her final submissions: ‘I did not know that they were going to reduce my Commission on 11th July 2023 and it came as a surprise. I was very upset made the grievance as a result, this led into the hostile and toxic campaign started towards me. I tried to resolve it but further deductions from my Commission continued afterwards every month’. This explanation did not explain the Claimant’s inaction on the Scott and Langton difference in training pay complaint, which, for the reasons stated, had ended by 28th January 2023. 96.4. The steps taken by the Claimant to obtain appropriate professional advice once she knew that a claim could be brought; and, the promptness with which the Claimant acted once she know of the facts giving rise to the claim. We have not been provided with any direct evidence on this issue, however we note that the Claimant’s partner, Isidoro Orea Bonilla is a dual qualified solicitor in England and Spain (as the Respondent referred in its closing submissions). Mr Bonilla was present in Court in a supportive and assistant manner to the Claimant. In the circumstances we conclude that the Claimant did have access to legal advice throughout.[97]Taking all of the above into account we find that the direct discrimination claim, relating to a difference in training pay between the Claimant and Scott and Langton, was presented out of time, and that it would not be just and equitable to extend time, to allow that claim to proceed. Page 46 of 53 [7] Concluding Summary[98]In drawing all of the above together, it is our Judgment that: 98.1. The Claimant’s claim of unfair dismissal, pursuant to s98(4) ERA is dismissed. 98.2. The Claimant’s claim of direct race discrimination pursuant to s9 & s13 EqA is dismissed. 98.3. The Claimant’s claim of harassment related to race pursuant to s26 EqA is dismissed. 98.4. The Claimant’s claim of victimisation pursuant to s27 EqA is dismissed. 98.5. The Claimant’s claim for Holiday Pay is dismissed. 98.6. The Claimant’s claim for Notice Pay is dismissed. 98.7. The Claimant’s claim for Unlawful Deductions from Wages is dismissed. 98.8. The Claimant’s claim for Breach of Contract is dismissed. Employment Judge Jonathan Gidney Tribunal Member Butler Tribunal Member Hearn 27th February 2025 Written reasons approved on 20th March 202528 March 2025 ………………………… Page 47 of 53 Annex 1 – List of Issues Employment status[1]Was the Claimant working under a contract of employment and therefore an employee of the Respondent within the meaning of s230(1) ERA?[2]If not an employee, was the Claimant a worker for the Respondent within the meaning of s230(3)(b) of the ERA in that: 2.1. she worked under a contract whereby the claimant undertook to do or to perform personally any work or services for the Respondent, and 2.2. the Respondent was not by virtue of that contract a client or customer of any profession or business undertaking carried on by the individual? Time limits[3]Given the date the claim form was presented and the effect of early conciliation, any complaint about something that happened before 12 June th 2023 may not have been brought in time.[4]Were the discrimination made within the time limit in s123 EqA? The Tribunal will decide: 4.1. Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates? 4.2. If not, was there conduct extending over a period? 4.3. If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide: 4.4. Why were the complaints not made to the Tribunal in time? 4.5. In any event, is it just and equitable in all the circumstances to extend time? Page 48 of 53 Harassment related to Race (s26 EqA)[5]The Claimant relies upon the protected characteristic of race and more specifically nationality in the form of being ‘non British’.[6]Did the Respondent do the following alleged things: 6.1. In July 2023 (in between grievances one and two) shout at the claimant, calling her unprofessional, asking ‘are you going to break all the rules’. 6.2. In August 2023 or afterwards, ask other colleagues to write complaints against the claimant or telephoning ex staff asking if they wanted to join the company again if they provided statements saying that the clamant had done something wrong in the past. 6.3. Dismiss the Claimant and/or expel her from membership of the LLP; 6.4. In July 2023, informed the claimant via Louise Ortelli (Manager), that all the hair colours would be locked in an office downstairs and did not provide the claimant with a key? 6.5. In July 2023, after a staff meeting, shout at the claimant and ask reception to reduce appointments times? 6.6. In August 2023, ask reception not to book the claimant any clients from then on? 6.7. From August to October 2023, ask and shout at the claimant to attend meetings which clashed with customer appointments and refusing to permit the claimant to re-schedule such appointments? 6.8. On 25th August 2023, via other members of staff, (Luis Ventura) send the claimant emails and texts late at night or after working hours? 6.9. In September 2023, prevent the claimant from leaving the salon? If so, was that unwanted conduct? Was it related to race?[9]Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive Page 49 of 53 environment for the claimant?[10]If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Victimisation (s27 EqA)[11]Did the claimant do a protected act as follows: 11.1. submit a grievance dated 13th July 2023 alleging discrimination; 11.2. submit a second grievance dated 24th July 2023 alleging discrimination.[12]Did the Respondent do the following things: 12.1. In July 2023 (in between grievances one and two) shout at the claimant, calling her unprofessional, asking ‘are you going to break all the rules’. 12.2. In August 2023 or afterwards, ask other colleagues to fabricate complaints against the claimant or telephoning ex staff asking if they wanted to join the company again if they provided statements saying that the clamant had done something wrong in the past. 12.3. Dismiss the Claimant and/or expel her from membership of the LLP?[13]By doing so, did it subject the Claimant to detriment?[14]If so, has the claimant proven facts from which the Tribunal could conclude that it was because the claimant did a protected act or because the respondent believed the claimant had done, or might do, a protected act?[15]If so, has the respondent shown that there was no contravention of s27 EqA? Page 50 of 53 Direct discrimination (s13EqA) The Claimant’s nationality is Spanish.[17]Did the Respondent pay Michael Scott and Summer Langton (both British) for time spent training apprentices but not the non-British colour technicians for time they spent training apprentices?[18]Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s.[19]If so, was it because of the Claimant’s race / nationality? Unfair dismissal Was the Claimant an employee?[21]Has the respondent shown the reason or principal reason for dismissal namely conduct?[22]If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether: 22.1. The respondent genuinely believed the claimant had committed misconduct; 22.2. there were reasonable grounds for that belief; 22.3. at the time the belief was formed the respondent had carried out a reasonable investigation; 22.4. the respondent followed a reasonably fair procedure; 22.5. dismissal was within the band of reasonable responses. 22.6. Dismissal was within the range of reasonable responses. Wrongful dismissal / Notice pay Page 51 of 53 Was the Claimant an employee? What was the Claimant’s notice period? Was the claimant paid for that notice period?[26]If not, can the respondent prove that the claimant was guilty of gross misconduct which meant that the respondent was entitled to dismiss without notice? Holiday Pay (Working Time Regulations 1998) Was the Claimant a worker?[28]Did the Respondent fail to pay the Claimant for annual leave the Claimant had accrued but not taken when their employment ended? What was the claimant’s leave year?[30]How much of the leave year had passed when the Claimant’s employment ended?[31]How much leave had accrued for the year by that date?[32]How much paid leave had the claimant taken in the year?[33]Were any days carried over from previous holiday years? How many days remain unpaid?[35]What is the relevant daily rate of pay? Unauthorised deductions Was the Claimant a worker?[37]Do the commission payments fall within the meaning of pay?[38]Was the pay paid to the claimant from June 2023 less than the wages she should have been paid?[39]Was any deduction required or authorised by statute?[40]Was any deduction required or authorised by a written term of the Page 52 of 53 contract?[41]Did the claimant have a copy of the contract or written notice of the contract term before the deduction was made?[42]Did the claimant agree in writing to the deduction before it was made? Was there an ongoing series of deductions? How much is the claimant owed? Breach of Contract Was the Claimant an employee of the Respondent?[46]Were the Claimants takings reduced in breach of contract?[47]Was this a sum outstanding on termination? Page 53 of 53 RECONSIDERATION JUDGMENT The Respondent’s application dated 28th April 2025 for reconsideration of the Liability Judgment delivered orally in Court on 27th February and sent to the parties on 7th March 2025 is refused.[1]By the Tribunal’s Judgment (‘the Judgment’) the Tribunal dismissed the following Claims that had been presented by the Claimant: Page 1 of 5 1.1. Unfair dismissal, pursuant to s98(4) Employment Rights Act 1996 (‘ERA’); 1.2. Direct race discrimination pursuant to s9 & s13 Equality Act 2010 (‘EqA’); 1.3. Harassment related to race pursuant to s26 EqA; 1.4. Victimisation pursuant to s27 EqA; 1.5. Holiday Pay; 1.6. Notice Pay; 1.7. Unlawful Deductions from Wages; and, 1.8. Breach of Contract.[2]The Judgment had been delivered orally on 27th February 2025. The Judgment was sent to the parties on 7th March 2025 and Full Written Reasons were sent to the parties on 28th March 2025. The Respondent’s reconsideration application was received 17days out of time on 28th April 2025.[3]The Tribunal has power to reconsider any judgement where it is necessary and in the interests of justice to do so. Rule 72 of the Employment Tribunals Rules of Procedure sets out the process for reconsideration requests. It states: 72 Process.(1) An Employment Judge shall consider any application made under Rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including unless there are special reasons, where substantially the same application has already been made and refused) the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise, the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional view on the application.(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under Page 2 of 5 paragraph (1) that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing, the party should be given a reasonable opportunity to make further written representations.(3) Where practicable, the consideration under paragraph (1) shall be made by the Employment Judge who made the original decision. Or, as the case may be, chaired the full Tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or was the case may be, the full Tribunal which made the original decision. Where that is not practicable the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full Tribunal, shall either direct the reconsideration be by such members of the original Tribunal as remain available to reconstitute the Tribunal in whole or in part.[4]In the reconsideration application the Respondent asks the Tribunal is revisit and make a new finding of fact, in respect of paragraph 48 of the full written reasons, which referred to page 521 of the hearing bundle, as follows: ‘[48] The Claimant was then expelled from the Partnership on 4th October 2023. There was a very short meeting between the Claimant and Michael Van Clarke. The transcript reveals just how bad tempered the exchange was [521]: [MVC] What are you going to do? Call me? Threaten me? How are you doing with the others? I know what you've been doing. Look, from this moment, from this moment, you are nothing to me. And don't contact me to harass me or bully me any further. I'm just letting you know. Do not contact me. You will hear from the solicitor. No, don't worry. Also Rocky, you're barred from the Salon. Don't go into the Salon. [RVL] I'm going to get my things. I don't want to come back here. Thank you very much. And I'll see you in court both of you.[5]In its reconsideration request the Respondent asserts that the above transcript was incorrect. It asserts that it was the Claimant who said, ‘look from this moment you are nothing to me’. The Respondent relies on a transcript that it obtained after the delivery of oral reasons. At no point during the hearing was this alleged misattribution put to the Claimant, or raised as an issue at the hearing, nor was the new transcript provided. Page 3 of 5[6]Applying the principles in Ladd v Marshall [1954] 1 WLR 1489 the Court of Appeal set out the test for receiving fresh evidence as(i) the evidence could not have been adduced with reasonable diligence for use at the trial;(ii) the evidence, if given, would have had an important influence on the case, and(iii) that it was credible.[7]In the Respondent’s own application, it states that in its preparations for trial this version of the transcript was omitted. This indicates that the evidence would have been available to be adduced with reasonable diligence. Further, this specific finding was that the transcript at [521] of the bundle illustrated that the final meeting had been bad tempered. The re-attribution of the words ‘from this moment you are nothing to me’ would not have had any influence on the outcome, let alone an important influence. Finally, at this stage, it is impossible to say that the new version is credible. It was open to the Respondent to challenge the Claimant on this under oath. It did not do so. The Claimant opposes the Respondent’s reconsideration request.[8]In Trimble v Supertravel Ltd [1982] IRLR 451 the Employment Appeal Tribunal stated, ‘If the matter has been ventilated and properly argued at the original hearing, then errors of law of that kind fall to be corrected by this Appeal Tribunal’. The EAT emphasised that the reconsideration procedure is there so that where there has been an oversight or some procedural occurrence, such that a party cannot be said to have had a fair opportunity to present their arguments on a point of substance, they can bring the matter back to the Tribunal for adjudication. An application for reconsideration under Rule 70 must include a weighing of the injustice to the Applicant if the reconsideration is refused, and the injustice to the Respondent, if it is granted.[9]It is also necessary to give weight to the public interest in the finality of litigation: Phipps v Primary Education Services Limited [2023] EWCA Civ 652. It is valuable to draw attention to the importance of the finality of litigation and the view that it would be unjust to give the losing party a second bite of the cherry: Newcastle Upon Tyne City Council v Marsden [2010] ICR 743. Page 4 of 5[10]The factors to be considered in determining whether it is in the interests of justice to reconsider a decision can still include the specific grounds identified in the 2004 Rules of Procedure, namely(i) whether decision was wrongly made as a result of an administrative error;(ii) where a party did not receive notice of the proceedings leading to the decision,(iii) where the decision was made in the absence of a party; and(iv) when evidence had become available since the conclusion of the hearing which could not have been reasonably known or foreseen at the time.[11]Finally, the reconsideration request was received out of time, some 17 days after the 14 day time limit from receipt of the full written reasons. No basis or reason for extending time has been submitted.[12]It is clear that none of the 2024 specific factors apply or are relied on in this case. In considering the interests of justice generally there is no reasonable prospect of the original decision being varied or revoked, because, for the reasons stated above, it would not be in the interests of justice to do so. RECONSIDERATION JUDGMENT The Claimant’s application dated 10th April 2025 for reconsideration of the Liability Judgment delivered orally in Court on 27th February and sent to the parties on 7th March 2025 is refused.[13]The factors to be considered in determining whether it is in the interests of justice to reconsider a decision can still include the specific grounds identified in the 2004 Rules of Procedure, namely(i) whether decision was wrongly made as a result of an administrative error;(ii) where a party did not receive notice of the proceedings leading to the decision,(iii) where the decision was made in the absence of a party; and(iv) when evidence had become available since the conclusion of the hearing which could not have been reasonably known or foreseen at the time.[14]It is clear that none of the 2024 specific factors apply or are relied on in this case. In considering the interests of justice generally the Claimant very ably represented herself and she took the opportunity to cross examine the Respondent’s witnesses and make final submissions on her behalf.[15]In all of the circumstances it is my judgment that there is no reasonable prospect of the original decision being varied or revoked, because, for the reasons stated above, it would not be in the interests of justice to do so.