Ms S Sewraj (as the personal representative of Mrs S Sewraj) v Mark and Spencer plc: 2217131/2023
EMPLOYMENT TRIBUNALS
Case No 2217131/2023
Between
Ms Samantha Sewraj (as the personal representative of Mrs Soobawtee Sewraj)ClaimantMark and Spencer PlcRespondent
Before
Employment Judge AdkinMr M Lansman (instructed by Counsel) for claimantMr H Dohrajiwala (instructed by Counsel) for respondentDate 3 October 2024
JUDGMENT
[1]The following complaints are well-founded and will proceed to a remedy hearing: 1.1. claim of unfavourable treatment because of something arising from disability pursuant to section 15 of the Equality Act 2010; 1.2. claim of failure to make reasonable adjustments pursuant to section 20-21 of the Equality Act 2010.[2]The following complaints are dismissed: 2.1. The claim of unfair dismissal pursuant to the Employment Rights Act 1996 was brought out of time and the Tribunal did not extend time; - 1 - Case Number: 2217131/2023 2.2. the claim of indirect disability discrimination brought under section 19 the Equality Act was not well-founded.
REASONS
[1]A request for written reasons was requested by the Claimant’s solicitor on 4 October 2024, following delivery of an oral decision on 3 October 2024. That was not referred to Employment Judge Adkin seen by him for the first time on 27 November 2024, in preparation for a remedy hearing on 29 November 2024.[2]These reasons have been produced without an extensive section on the law setting out the law in order to provide reasons to the parties in time for the remedy hearing. Both parties are legally represented.
Evidence
[3]We received from the parties an agreed bundle of some 251 pages, we also received witness statements from Ms Idita Curly who was the dismissing manager of behalf of the Respondent and on behalf of the Claimant Ms - 1 - Samantha Sewraj who brings this claim and her brother Mr Sachin Sewraj, he was also a supporting witness. Findings of Fact History
Findings of Fact
[4]Mrs Sewraj commenced employment as a sales advisor at the Respondent’s store on Holloway Road on 19 March 1990.[5]Of relevance to time limits Samantha Sewraj was diagnosed with dyslexia in 2004.[6]In 2011 Mrs Sewraj, the Claimant was diagnosed with ovarian cancer for which she received surgery and chemotherapy. That cancer was in remission but returned in 2018 by which stage it had spread to the lung. On the 19 March 2020 at the beginning of the Covid 19 pandemic the Claimant was absent from work due to being clinically vulnerable with cancer and at risk due to Covid.[7]The Claimant was placed on furlough in the period 5 April 2020 to 31 October 2020, thereafter the following week 2 November 2020 she had a period of sick absence until 2 January 2021.[8]The Claimant took then from 3–31 January 2021 took a period of holiday and thereafter from 1-13 February 2021 she had a period of sickness absence.[9]The Claimant was referred to Occupational Health on 2 February 2021 and placed again on furlough between 14 February to 1 April 2021. The Claimant attended an Occupational Health meeting on 15 February 2021, a report was produced which appears at page 146 of the agreed bundle noting the history of ovarian cancer since 2021 and that the cancer had returned in 2018 which had spread to the lung, it noted a recent period of chemotherapy treatment which had been completed in December 2020. It was noted that Mrs Sewraj was due to have a biopsy of the lung and a CT scan on 24 February 2021. Her treatment at that stage was injections every three weeks which was believed to be a targeted cancer drug. At that stage Mrs Sewraj was capable of independent care, she did not report any significant symptoms other than feeling tired, she said she wished to return to work and that she usually worked 3.5 hours per day. She was at that stage remaining at home because of Covid being extremely clinically vulnerable because of cancer “high risk of developing significant ill health is she catches Covid”. Sick absence[10]Between 5 and 30 April 2021 Mrs Sewraj had a period of sickness absence. It should be said that during 2021 both Mrs Sewraj and her husband Mr Sewraj were unwell and on a variety of medications. Their children Samantha and Sachin were both at this stage full time carers. Samantha took responsibility primarily for her father whereas Sachin for his mother and they split the hours of responsibility such that Samantha was responsible during the daytime and Sachin nighttime. - 2 - Change of manager[11]On 11 April 2021 Mrs Curly took over as the Claimant’s line manager from David Hipple.[12]Mrs Curly says at that time she did not get a sense of the severity of Mrs Sewraj’s condition. She took at face value what she had been told about Mrs Sewraj intending to return to work once she had recovered. She initially introduced herself to Mrs Sewraj by WhatsApp, she had been told that that was the best method.[13]There was then a period where Mrs Sewraj had sickness absence from 3 May to 30 June 2021 and it seems from the 3 May onward no sick note was provided.[14]As of May 2021 Mrs Sewraj was having fluid drained from her lung twice a week through a port on her back.[15]Mrs Curly sent a WhatsApp message to Mrs Sewraj on 24 May 2021 and then sent a follow up two days later on 26 May. Mrs Sewraj responded to say that she was with the doctor, not available to talk but that her son would call the following day.[16]On 27 May Sachin called Mrs Curly as promised. Mrs Curly said that this was an uncomfortable conversation as Sachin refused to allow her to speak to Mrs Sewraj and said all the conversations should take place through him. She expressed the importance of Mrs Sewraj making contact directly although she was happy for him to attend calls or meetings as an accompanying person. She asked him to pass on the message and for Mrs Sewraj to return the call. Holiday pay[17]In May 2021 around that time Mrs Curly used her discretion to use the Claimant’s accrued holiday so that she was being paid rather than unpaid which she was during her sickness absence, she described that as an adjustment to support Mrs Sewraj during her absence. Initial health meeting invite[18]On 1 June 2021 Mrs Sewraj was invited to an initial health meeting on 4 June, in fact that meeting did not happen, Mrs Curly was herself off sick between 4- 27 June. Death of Mr Sewraj[19]On 24 June Mrs Sewraj’s husband died. Initial health meeting 20. on 28 June Mrs Curly sent a chasing letter which was inviting Mrs Sewraj to a meeting on 30 June 2021. - 3 -[21]She then heard the news that the Claimants husband had died and sent a WhatsApp about this, and there is a WhatsApp exchange which appears at page 250.[22]There was a further invitation sent inviting Mr Sewraj to a meeting on 15 July 2021, during the period 30 June to 14 July 2021 Mrs Sewraj was paid special leave.[23]On 15 July 2021 Mrs Curly called Mrs Sewraj by telephone although Mrs Sewraj did not answer the phone, she called a couple more times but those calls went unanswered. The following day she sent a WhatsApp noting that they had tried to have a message, Mrs Sewraj replied in a WhatsApp message why don’t you and it seems like this is probably an error “you what I am going through my son will take to you” which we think probably means talk to you.[24]Mrs Curly sent a long message in response.[25]After the expiry of special leave there was a further period of sickness absence from the 15 July to 26 August 2021 which was the point of which employment was terminated. HR advice[26]The Tribunal has had the benefit of various notes from the management system which appear at 164b which is essentially a blown up version of a document at page 164 in the agreed bundle. The comment made by the advisor to Mrs Curly the manager in relation to this on 20 July was because she has got in touch we cannot go down the AWOL route. Further invite[27]Mrs Sewraj was invited to an initial interim ill health meeting on 26 July 2021 that meeting was held on 26 July in her absence.[28]On 27 July Mrs Curly sent Mrs Sewraj a letter concerning her absence, that appears at page 240 requesting a medical certificate for the absence since 3 May and expressing concern that she had not heard from her since 16 July. She suggested alternative means of communication which were described as reasonable adjustments of which were these: 28.1. A right to be accompanied, extended to who you deemed to be reasonable to attend to support you; 28.2. written consent for us to engage and discuss your condition with a person you see fit; 28.3. medical questionnaire; - 4 - 28.4. communication by email or teams messages additional or extended breaks during the meeting as and when required and confirming that she is able to communicate by letter a message; 28.5. and support using the information provided.[29]She attached a questionnaire and provided a mobile number which Mrs Sewraj could call and said if she did not hear by 14:00 on 29 July she would try to contact her and the emergency contact as a duty of care. Telephone conversation between Mrs Sewraj & Mrs Curly[30]Then we can see from the note at page 164b that Mrs Curly called Mrs Sewraj who called her back and spoke to her and a detailed note was made in the management system at this point which said this: She is in hospital and has been in hospital for 8 days. LM (line manager) felt EE (employee) was very confused and dazed, could not answer any questions, could not find words to say, very weak on her feet, problems with sugar levels which dropped but that she will be ok, EE said son will send details LM said it needs to be EE that provides the detail and to complete the questionnaire. No information on when she will be leaving hospital but that she will be ok. EE is on PSL which we take to be paid special leave as well LM said she would give EE some time and call her next week. LM will call EE Thursday if EE does answer will reinvite to an unauthorised absence meeting if EE answers we will discuss how EE, is EE home.[31]Unfortunately although an indication had been given by Mrs Sewraj that her son would send the details that did not happen. It is not clear to us exactly why but it seems that that did not happen. Termination of employment meeting[32]A meeting took place on 25 August 2021 which was an absence meeting which led to a letter of dismissal which appears in the bundle at page 148 dated 26 August 2021 being sent. I am just going to quote from that letter. Outcome of disciplinary meeting – dismissal Following your absence meeting on 25 August 2021 I have decided to dismiss you due to your unreasonable levels of absence: your current absence started on 05/04/2021 at the end of furlough leave due to you receiving treatment for cancer, your total contractual hours in the last 26 weeks amount to 338 hours the - 5 - total hours you were absent in this 26 weeks period amount to 256.75 hours which puts your average percentage at 76.96% I became your line manager on May 2021 and have tried to reach you and speak to you on a number of occasions by your preferred means of contact which is WhatsApp messaging. During that time you have briefly replied four times saying you could not talk at that time. I have sent you seven letters in total inviting you for the meeting in store or over the phone in the last four letters I have provided with a reasonable adjustment as you could not attend meetings in person I sent you a questionnaire to complete or alternatively providing us with consent letter and having someone attend the meeting on your behalf. Both these adjustments that were offered you did not respond to.[33]We are not going to quote from the rest of the letter in the interest of brevity but it confirmed the dismissal with date of dismissal as 26 August 2021 and twelve week lump sum payment in lieu of notice. Appeal right[34]An appeal right was set out in that letter but that was not taken up by Mrs Sewraj. Communication about dismissal[35]It was decided by Mrs Sewraj’s children not to communicate this letter to her because they felt she was very unwell and this would upset her but unfortunately there was a communication by text which meant that Mrs Sewraj became aware that she had been dismissed from her employment. Death of Mrs Sewraj[36]Mrs Sewraj sadly died on 15 September 2021. Time limits[37]Limitation would ordinarily have expired to present a claim on 25 November 2021. There is then some chronology which is relevant to time limits. (Wrong) advice about probate[38]On 31 January 2021 Samantha Sewraj contacted the ACAS phone line, she contacted them again on 28 September 2021 what she was told was that she had to wait for the Grant of Probate before she could bring a claim, she was given similar advice on 28 September 2022 by someone at 360 Law Services Limited.[39]In Samantha Sewraj’s witness statement at paragraph 27 she comments that she did not know that she had the Grant of Probate as at 28 September 2022. We think that must be a mistake since in fact she did not receive the Grant of Probate until the following year. - 6 -[40]In Samantha Sewraj’s GP record of relevance again to time limits on 6 October 2022 the GP has written under +++ stress at present, dealing with local authority, housing authority and parking authority concerning her late parents parking bays and also the way her mother was dismissed by M&S before she died, and a bit later on it says objectively depressed, anxious and emotional.[41]On 27 October 2022 the GP record records discussion re: loss of parents and facilitated PT (patient ?? feelings) PT awaiting formal bereavement counselling via palliative care, TCB we wondered if that could be TBC if not improving in three to four weeks and then to consider formal RX (prescription medication if needed). Probate granted[42]The Probate was granted which we accept was caused by delays outside the control of the Sewrajs but ultimately Probate was granted which was communicated in a letter which is in the agreed bundle at page 171 dated 21 February 2023. That is a letter from Co-op Legal Services.[43]In her evidence to the Tribunal Samantha Sewraj seemed to suggest that she did not appreciate the significance of this at the time we find that this was a significant document which we know that she and her brother must have been waiting for so we find that at that time she must have realised that that was the Grant of Probate. Decision to bring a claim[44]In September 2023 it was the second anniversary of her mother’s death and Samantha Sewraj said she started to feel in a better emotional state and she discussed with her extended family members to try to seek justice.[45]A GP record records of 20 September 2023 a page 175 “objectively depressed, tearful, emotional, challenging personal circumstances were noted outside of bereavement”. Claim presented[46]Steps were then taken to bring the claim, the ACAS conciliation period was 13- 16 October 2023 and a claim was presented on 12 December 2023. - 7 -[47]We note from the witness statement of Ms Samantha Sewraj that there was still work carrying on distributing the estate which finally came to an end in 2024. Respondent’s policy[48]There is a policy entitled “sickness absence line management guide” which is dated January 2021 that policy begins at page 69 and on page 69 1 Absence reporting Absence reporting check list The following guidance is given to managers, your contact with the colleague needs to be by telephone or teams call (if this is accepted for your area of work) text/WhatsApp messages, emails and social media messages are not appropriate forms of contact unless agreed in advance with the colleague. If you agree the colleague is unable to make contact with you themselves, for example they have been hospitalised with a serious health condition you may have contact with their next of kin to keep updated on the colleagues health condition and to offer any appropriate support. Any absence reported in this way (unless there is prior arrangement with you for example where a colleague falls unwell while abroad or has a serious mental health concern) can be managed in line with the disciplinary policy.[49]There is further guidance in the box below if you are unable to contact them try their emergency contact.[50]On page 76, this is under the heading initial and interim ill health meetings: Before the meeting If the colleague is unable to attend the meeting in person in exceptional circumstances you could agree to manage the case over the telephone/teams meeting or in writing (email or letter) the colleague may also want to appoint a family member to attend on their behalf you will need written consent of this before you can proceed.
Law
[51]Parties made submissions on the law. There did not seem to be substantial dispute.[52]This section is truncated in the interests of brevity to get these written reasons to the parties in advance of the remedy hearing. - 8 -[53]We had reference to the relevant sections of the Equality Act 2010 including sections 19 (indirect discrimination), 20-21 (reasonable adjustments), 123 (time limits).[54]We had reference to the relevant sections of the Employment Rights Act 1996, including section 111 (time limits). Conclusion on time limits[55]There was a list of issues which was agreed at a previous case management hearing which has been slightly amended at the outset of this hearing. JURISDICTION TIME LIMITS[56]Were the complaints made within the time limits in s.123 of the Equality Act 2010 and s.111 of the Employment Rights Act 1996?[57]The Tribunal will decide the following questions. Was the claim made to the Tribunal within three months plus early conciliation extension of the act to which the complaint relates.[58]The answer to that is no. (B) if not was there conduct extending over a period,[59]No that is not relevant to this claim. (C) if so was the claim made to the Tribunal within three months plus early conciliation extension of that period.[60]The answer is no. Just & equitable extension: Equality Act claims[61]Claims under the Equality Act, which is discrimination claims, is it just and equitable in all the circumstances to extend time?[62]We decided that it was just and equitable to extend time and we have dealt with those discrimination claims on their merits.[63]Our reasons for that are as follows. First that Ms Sewraj was reasonably awaiting the Grant of Probate in relation to the Equality Act claims, she reasonably believed it constrained her ability before February 2023. Second, plainly this was a period where both children were going through an experience of grief and bereavement and were struggling to deal with the matter, it was unusually and sadly a double bereavement with both parents dying within a short period. We accept that they were grieving and struggling to deal with the matter, it was only the second year anniversary when Ms Sewraj began to feel - 9 - better, that was not a total impediment but it is part of the circumstances which goes to the just and equitable extension.[64]We considered whether the Respondent was prejudiced in their ability to defend the claim. We accept the Claimant’s submission that there is in this case very little factual dispute and the case is well documented, in other words the cogency of the evidence is not affected significantly by the passage of time.[65]Next consideration whether the claim has merit. We find that certainly parts of the discrimination claim do have merit and that is operated in favour of extending time. There would be a hardship to the Claimant to be locked out of meritorious claims and for those reasons and the circumstances generally we found that it was just and equitable to extend time to deal with discrimination claims on their merits. Not reasonably practicable: unfair dismissal claim[66]Turning to the Employment Rights Act claim, this is the claim of unfair dismissal. This is a different test, both Counsel accept that this is a harder test for the Claimants to satisfy, whether it was not reasonably practicable to present the claim in time. Advise was given that the Grant of Probate needed to be awaited and that is advice given by both ACAS and also 360 Law, it seems to be common ground that under the provisions of the Employment Rights Act that is not correct and in fact the claim could have been brought, it also seems to be common ground that following the authority of Dedman the remedy of the Claimant in that situation is against the provider of the advise rather than the Respondent which is possibly a harsh outcome but that appears to be the law (certainly in respect of a legal adviser 360 Law although this conclusion might be doubted in respect of ACAS).[67]On behalf of the Claimant Mr Lansman puts particular emphasis on the period of grief and bereavement although he also notes dyslexia which is a factor that did not help.[68]We have taken account of the following factors that Ms Sewraj accepted that the ability to bring a claim in the Employment Tribunal was at the back of her mind and in fact that both she and her brother were aware of the possibility of bringing the claim. They were able to deal with the Probate process although admitted that there were delays, they were evidently from our findings also dealing with other matters arising from the deaths of their parents. We have reminded ourselves that the not reasonably practical test is not about capacity but it is about what is reasonably feasible.[69]We note the arrangement between Mr Sewraj and Ms Sewraj that it was a matter of convenience to divide various responsibilities, we find that was perfectly sensible and understandable, essentially Mr Sewraj left Ms Sewraj to the question of bringing a claim, he gave evidence to the effect that he was not going to chase her on that. But looking at the matter in the round we are not satisfied that the Claimants have shown that it was not reasonably practicable to present the claim, even if an argument could be made to say that Dedman should not apply there was still a very long delay between the Grant of Probate - 10 - and the presentation of the claim and that is a long delay in the context of the usual time limit which is three months.[70]So, applying this stricter test for the claim of unfair dismissal we did not find that time should be extended we found that it was reasonably practicable to present the claim in time and so the claim of unfair dismissal does not proceed. Conclusion on substantive claims[71]Turning to the claims under the Equality Act, the disability discrimination claims, we will take these in the order that they appear in the list of issues. Discrimination arising from disability (section 15 EqA)[72]We note that the Respondent concedes that the Claimant was disabled. 7. Did the following matters arise in consequence to the Claimants disability. (a) the Claimant was absent from work.[73]It is conceded by the Respondent that the Claimant was absent from work and that this was arising from the disability but it is argued that this was not the reason for dismissal.[74]We do not accept that argument we find that based on the first sentence and the first bullet point of the letter of dismissal at page 148 which I have already read out, absence was central to the decision to dismiss. (b) the Claimant was absent from work without leave.[75]The Respondent concedes that this was a reason for dismissal but disputes that the absence from work without leave was arising from disability.[76]On the other hand the Claimant argues that given the background the Claimants exemplary service for 30 years the only explanation for the absence of sick note, the absence of leave was disability. We have considered carefully the evidence at page 164b Mrs Curly’s own words as she recorded what had been said to her when she spoke to the Claimant when she was in hospital it seems to us that this demonstrates that the absence without leave was arising as a consequence to the disability, essentially Mrs Sewraj was unable to deal with these matters and the reason for that lack of communication was that she was dying form cancer, so we find that this was arising from disability. (c) the Claimant failed to respond to the Respondents communications about being absent from work.[77]Again we find this was arising in consequence of disability for similar reasons. Mrs Sewraj was unable to deal with the correspondence and the reason for that lack of communication was that she was dying from cancer that was arising from disability. - 11 - 8. Did the Respondent dismiss the Claimant because of these matters?[78]The answer is yes because all three matters arose from disability A, B and C. 9. Justification: was the treatment a proportionate means of achieving a legitimate aim?[79]The Respondent attempted very belatedly to provide specific details of this defence in an oral application made at the start of the hearing, that application was refused.[80]This defence does not succeed. The burden was on the Respondent to establish it and it has not.[81]Purely by way of an observation even if we had allowed that amendment of the pleadings the Respondent has not produced evidence in witness statement or in the bundle which would have satisfied the burden on them to establish this defence. Again, this is simply an observation but looking at what is proportionate or reasonably necessary is difficult to see how dismissal was proportionate in this case when there were other options including ill health retirement or final written warning or indeed following its own policy on page 69.[82]To be clear those are observations and this claim does succeed. Indirect discrimination Did the Respondent have a provision criterion or practice the Claimant relies on the PCP of requiring the Claimant to personally engage in phone calls and meeting and personally correspond with the Respondent while absent from work?[83]We find that this was the policy either Mrs Sewraj needed to personally engage or personally correspond to provide a personal consent and that seems to be broadly consistent with the written policy. I was certainly the policy that was operated in her case. Did the Respondent apply that PCP to non-disabled absentees?[84]We found that this seems to be a standard policy to deal with absence there does not seem to be a distinction between disabled and non-disabled absentees. Did PCP put persons with cancer at a particular disadvantage with requiring them to engage in activities that they found more tiring, painful and otherwise difficult or impossible due to the symptoms of their cancer and/or their cancer treatment and/or due to the need to attend medical appointments and/or receive medical treatment?[85]If we can summarise that in a phrase this is about group disadvantage.[86]The pool that we have considered is people who are affected by that PCP. That is people who are absent from work for sufficient time to engage the need to - 12 - communicate about their absence so probably more than a day or two, perhaps best described as medium or long term absence.[87]We have to consider the effect of this PCP on those with cancer compared with those who are on a medium or long term absence but do not have cancer.[88]The Claimant’s side have not adduced statistical evidence, that is not a criticism given that it is not even clear what sought of evidence would be available on this but we do not have it.[89]We have asked ourselves the question, can we take judicial notice of the fact that those with cancer would be particularly disadvantaged by a policy of requiring personal communication compared to those who are absent for noncancer reasons? We acknowledge that someone at the final stage of suffering from cancer such as the Claimant, i.e. very unwell, receiving multiple medication, confused or dazed would be at that disadvantage but that is a small sub set of those suffering from cancer. The majority of people with cancer would be able to communicate verbally or fill in a form, in the case of Mrs Sewraj herself she had cancer from 2011 and there is no suggestion that communication with her employer was a difficulty before the final weeks.[90]Comparing those with cancer to the group of people on medium or long term absences for non-cancer related reasons there would be a whole variety of different reasons for absence, someone with mental health breakdown might struggle to participate in this process, someone with a broken leg might not. There are myriad other reasons why people are absent. This comparison a particular disadvantage is not obvious or self-proving, we do not feel we can take judicial notice beyond the observations about people suffering cancer in the final few weeks. The burden is on the Claimant to show group disadvantage, we do not find this burden has been satisfied in this case so this claim cannot succeed. Individual disadvantage[91]We have nevertheless gone on to consider individual disadvantage and justification in the alternative in case we are wrong. Did the Respondent apply the PCP to the Claimant?[92]Yes this PCP was applied to the Claimant. Did that PCP put the Claimant at a particular disadvantage?[93]Turning to that question of individual disadvantage it would clearly in our view it would have been made out in Mrs Sewraj’s circumstances she was at a particular disadvantage by the requirements of the Respondent in terms of communication. Was the treatment a proportionate means of achieving a legitimate aim?[94]That justification defence has not been made out for reasons discussed before. - 13 -[95]In summary however, the claim of indirect discrimination does not succeed because group disadvantage has not been proven. Failure to make reasonable adjustments.[96]We already have the PCP from the previous claim in which we find that the PCP and the indirect discrimination was made out which is about engaging in phone calls personally and personally corresponding.[97]The Claimant says this PCP put the Claimant at a substantial disadvantage because it required her to engage with activities she found tiring, painful or otherwise impossible. For similar reasons for the particular advantage in the indirect discrimination we find that there was substantial disadvantage. In essence Mrs Sewraj could not do it and that is clear from what was recorded at page 164b it is also clear that the Respondent knew that she was at that disadvantage and that is clear from 164b. Did the Respondent fail to take such steps as were reasonable to avoid a disadvantage?[98]There are two steps we have considered.[99]The first is contacting next of kin. We note that the Respondent’s own policy provides for there to be contact where someone has been hospitalised with a serious health condition which Mrs Sewraj was that is at page 69. We consider that this was a case in which contact could have been made with Mrs Sewraj’s next of kin, that is not only following the policy but in the circumstances in which she was plainly very unwell and struggling to communicate that would have been reasonable in our assessment.[100]The next point is whether the Respondent should attend Mrs Sewraj’s residence. We have wrestled with this one a little bit but ultimately came to the conclusion that if sensitively done a visit would have been an appropriate and reasonable adjustment to be made. Would the adjustments proposed have alleviated the disadvantage?[101]Our conclusion is that they would have done. Any direct communication with the family would have been likely to provide the manager dealing with potential dismissal with more information about the current circumstances we find that it must have been mitigating circumstances that she was in the final stage of dying from cancer and for example was having fluid drained from lungs. All of those matters might have played into the process and influenced the decision to dismiss. In short therefore that communication would have alleviated the disadvantage, so in conclusion the claim of failing to make reasonable adjustments succeeds. - 14 -[1]By an application dated 18 December 2024 the Claimant applied for reconsideration of the Tribunal’s judgment on remedy dated 29 November 2024, sent to the parties on 5 December 2024.[2]The application was on a single point, specifically that interest on financial losses had been omitted.[3]I wrote to the parties expressing a provisional view under rule 72(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1 that the Claimant should be entitled to interest on past financial losses as well as injury to feeling and it appeared that this had been overlooked in the judgment on remedy. Principle of interest agreed[4]Happily the parties agreed that this sum had been overlooked and accordingly the remedy judgment should be varied to add it in.[5]The only question for the tribunal therefore has been the quantum of this interest payment. Disputed quantum[6]The point of dispute is whether interest should run from the middle of the period of financial loss, as the Respondent argues or a point closer to the date of death as the Claimant argues. Respondent argument[7]The Respondent submits that the mid-point between the late Mrs Sewraj’s death (15 September 2021) and the calculation date (i.e. 29 November 2024 the remedy hearing) is a period of 586 days and as such the interest at 8% would be £14,050.40*0.08/365*586 = £1,804.61.[8]That is the conventional way of calculating interest in cases of financial loss. Claimant argument[9]The Claimant argues that it should run from 10 weeks after the date of death to the date of the remedy hearing – which would give a figure of £3,563.56. This is based in part on an indication from the Respondent in correspondence that once a form is submitted by beneficiaries payment is usually made within 8 weeks.[10]It is argued by the Claimant that calculating from the midpoint is appropriate for losses which are sustained over a period of time, for example the salary, - 2 - whereas this was a loss that occurred at 10 weeks after the death of the deceased, which is their estimate of the period it would take for the respondent to provide a form to the beneficiaries, for them to fill it in and return to the Respondent and for the Respondent to process and pay the figure.
Law
[11]The regulations on interest allow to depart from the usual approach of calculating from the midpoint of the period of loss in cases where this would cause "serious injustice".[12]The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (SI 1996/2803) (“the Regulations”) contains the following provision: 6(1) Subject to the following paragraphs of this regulation— (a) in the case of any sum for injury to feelings, interest shall be for the period beginning on the date of the contravention or act of discrimination complained of and ending on the day of calculation; (b) in the case of all other sums of damages or compensation (other than any sum referred to in regulation 5) and all arrears of remuneration, interest shall be for the period beginning on the mid-point date and ending on the day of calculation.(2) Where any payment has been made before the day of calculation to the complainant by or on behalf of the respondent in respect of the subject matter of the award, interest in respect of that part of the award covered by the payment shall be calculated as if the references in paragraph (1), and in the definition of “midpoint date” in regulation 4, to the day of calculation were to the date on which the payment was made.(3) Where the tribunal considers that in the circumstances, whether relating to the case as a whole or to a particular sum in an award, serious injustice would be caused if interest were to be awarded in respect of the period or periods in paragraphs (1) or (2), it may— (a) calculate interest, or as the case may be interest on the particular sum, for such different period, or (b) calculate interest for such different periods in respect of various sums in the award, as it considers appropriate in the circumstances, having regard to the provisions of these Regulations. [emphasis added] - 3 - Tribunal’s decision[13]It seems to the Tribunal that “serious injustice” is high threshold.[14]The Tribunal unanimously agreed that there would be no "serious injustice" if we follow the conventional approach of calculating interest from the mid-point rather than a point 10 weeks after death.[15]Practically speaking there would have been an administrative delay between the Claimant's death and payment of death in service. The Tribunal’s view is that the reality is that 10 weeks is probably an underestimate of the period it would have taken for the children of the deceased to put in train the administrative process, for that process to be concluded by the Respondent and for payment to be made. .[16]This is not a situation in which we consider that we need to try to make a precise estimate. Nevertheless as a matter of impression, we find that the period of delay between death and payment of the death in service benefit would have been substantially longer than 10 weeks. That view is in part formed by the delays noted in our reasons for our decision on liability[17]Interest is a mechanism for compensating a Claimant for having been kept out of their money for a period of time, reflecting the fact that had they received the money at the time of the “tort” in this case disability discrimination, they might have invested it. The statutory regime which provides for interest calculated at 8% is generous. It would not have been possible to get this rate in a savings account for example given the fairly low rates available at the material time.[18]Looking at this matter with a broad brush, taking of the likely administrative delay and also the generous 8% provided by the statutory mechanism, we unanimously find that calculating from the midpoint, which is the conventional method of calculating losses other than injury to feeling does not cause a serious injustice. For that reason we do not deviate from the standard basis of calculation from the midpoint provided by 6(1)(b) of the Regulations.