Mrs D SmithClaimantTeam W Ltd and othersRespondent
Before
Employment Judge Hindmarch
Members
Ms J ForecastMr T Harrington-RobertsDate 19 August 2024
JUDGMENT
[1]The employer of the Claimant was the First Respondent, Team W Ltd[2]The claims of direct disability discrimination are not well-founded and are dismissed.[3]The following complaint of unfavourable treatment because of something arising in consequence of disability is well-founded and succeeds: a. The First Respondent excluding the Claimant from redundancy consultation meetings between 26 July 2022 and 1 August 2022.[4]The remaining complaints of unfavourable treatment because of something arising in consequence of disability are not well-founded and are dismissed.[5]The Claimant is awarded and the First Respondent must pay her a total sum of £14512.14 in damages and compensation for discrimination, made up as follows:a. Financial losses of £4268.33.b. Interest on the above sum at £350.35.c. Injury to feelings of £8500.00.d. Interest on the above sum at £1393.46. 1 of 22
REASONS
[6]These are written reasons provided at the request of the Claimant, such request made in writing on 24 August 2024.[7]This is the unanimous decision of the Tribunal sitting at London South by CVP on 13-16 August 2024 in case no 2300051/23. The Tribunal panel were Employment Judge Hindmarch and members Ms Forecast and Mr HarringtonRoberts.[8]The parties to the proceedings were the Claimant Mrs Denise Smith and three Respondents, the First Respondent Team W Ltd, the Second Respondent Wahooti London Ltd, and the Third Respondent Mr Nicolas Manuel, a director of both Respondents.[9]The Claimant was a litigant in person and represented herself. The Respondents were represented by Mr Nicolas Manuel.[10]We had a bundle of documents running to 325 pages. We heard oral evidence from six witnesses and had sight of a witness statement from a witness who was unable to attend due to work commitments.[11]On the first day of the hearing we took the parties to the list of issues that had been agreed at the Case Management Preliminary Hearing on 11 October 2023 before Employment Judge Heath. The parties confirmed that all of the issues set out remained in play and for us to determine. These issues were as follows: The employera. Was the Claimant employed by the First or the Second Respondent? Disability It is accepted by the Respondent that the Claimant was a disabled person by virtue of her cancer diagnoses. Direct disability discrimination (Equality Act 2010 section 13)b. Did the Respondents do the following things: i) Exclude the Claimant from 1-2-1 meetings from April 2022 onwards? ii)Exclude the Claimant from redundancy consultation meetings between 26 July 2022 and 1 August 2022? iii) The third Respondent stopped communicating with the Claimant after 18 July 2022 when she told him of her need for further treatment? iv) Fail to consider the Claimant for the part-time junior role occupied by “Hayley” [parties to supply job title]? 2 of 22 v) Dismiss the Claimant? c) 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. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The Claimant says they were treated worse than a hypothetical comparator. d) If so, was it because of disability? 4. Discrimination arising from disability (Equality Act 2010 section 15) e) Did the Respondents treat the Claimant unfavourably by:4.1.1 Excluding the Claimant from 1-2-1 meetings from April 2022 onwards?4.1.2 Exclude the Claimant from redundancy consultation meetings between 26 July 2022 and 1 August 2022?4.1.3 The third Respondent stopping communicating with the Claimant after 18 July 2022 when she told him of her need for further treatment?4.1.4 Dismissing the Claimant? 4.2 Did the following things arise in consequence of the Claimant’s disability:4.2.1 Re 1-2-1s – the Respondent’s view that the Claimant should be left to focus on the situation she was going through?4.2.2 Re consultation meetings – the Respondent’s view that the Respondent should not be put to unnecessary burden?4.2.3 Re stopping communicating – the third Respondent’s understanding that the Claimant would require further treatment?4.2.4 Re dismissal – the Respondent’s perception that the Claimant would be too costly to keep, given her diagnoses? 4.3 Was the unfavourable treatment because of any of those things? 4.4 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: 4.4.1 The Respondent should briefly set out what it’s aims were, if it accepts it treated the Claimant as above. 3 of 22 4.5 The Tribunal will decide in particular:4.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;4.5.2 could something less discriminatory have been done instead;4.5.3 how should the needs of the Claimant and the Respondent be balanced? 4.6 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date? 5. Remedy for discrimination5.1 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?5.2 What financial losses has the discrimination caused the Claimant?5.3 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?5.4 If not, for what period of loss should the Claimant be compensated?5.5 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?5.6 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?5.7 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?5.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?5.9 Did the Respondent or the Claimant unreasonably fail to comply with it?5.10 If so is it just and equitable to increase or decrease any award payable to the Claimant?5.11 By what proportion, up to 25%?5.12 Should interest be awarded? How much? 4 of 22[12]We asked the Claimant at the outset whether she required any adjustments, her having asked for the hearing to be dealt with by CVP rather than in person and she confirmed she had plenty of fluids and would ask for any breaks.[13]The claims were for direct disability discrimination under s13 Equality Act 2010, and discrimination arising from disability under s15. It was not in dispute that the Claimant was a disabled person following a cancer diagnosis in or around March 2022. Cancer is a deemed disability under the Equality Act.[14]On the first day we heard evidence from the Claimant. The Claimant adopted the rider to her ET1 as her witness statement. We then heard from the Claimant’s first witness Stephen McLaughlin, who at the relevant time was employed by either the First or Second Respondent as its Operations Director, and who conducted the redundancy process that led to the Claimant’s selection for redundancy and dismissal.[15]That Mr McLaughin gave evidence for the Claimant rather than the Respondents was one of several unusual factors of this case which we shall return to later in this Judgment.[16]On the second day of the hearing we heard from the Claimant’s second witness Simon Wilkes. Mr Wilkes had been employed by either the First or Second Respondent in the role of Production Manager and had, like the Claimant, been made redundant.[17]After Mr Wilkes we heard the Respondent’s evidence. We heard firstly from Mr Manuel. We next heard from Kelly Baker, external HR Consultant, who had advised Mr McLaughlin on how to conduct a redundancy exercise and later had been engaged by the Respondents to deal with the Claimant’s appeal against dismissal and her grievance.[18]We also heard from Paul Vernard from the CFO Centre, an organisation that had been engaged by the Respondents in or around November 2022 to assist with the financial difficulties the companies were experiencing and to aid in turnaround of the businesses.[19]The Respondents had intended on calling a further witness Craig Wood, Sales Director of either the First or Second Respondent. Unfortunately he was unable to attend due to work commitments. We had a short written witness statement from him and we explained to Mr Manuel that we would give less weight to such a witness where they did not present themselves for cross examination. In any event Mr Wood’s statement was very short, only three paragraphs long, and added little to the factual matters and the Claimant told us she would have had no questions for him.[20]After concluding the evidence on day two we heard submissions. I indicated to the parties that they should speak to the list of issues. It is fair to say, and perhaps this is not surprising given both parties did not have legal representation, that neither party did in fact address the List of Issues, but instead each talked passionately about the events leading to the redundancies and the effects this had had on both the Claimant and Mr Manuel. In her evidence the Claimant accepted that she had described these proceedings as 5 of 22 “a crusade” and told us she did not like injustice and that she had a “Plan B” involving the Sunday Times where she was liaising with a journalist and expecting some publication about what can happen to employees.[21]On day three the panel deliberated and on day 4 we handed down an oral Judgment on liability and also dealt with remedy.[22]By an ET1 filed on 3 January 2023, following a period of ACAS early conciliation from 23 November 2023 to 26 December 2023, the Claimant brought complaints of unfair dismissal and disability discrimination. At the aforementioned Case Management Preliminary Hearing the Claimant accepted she had insufficient service to bring a claim of ordinary unfair dismissal and that claim was withdrawn. The disability discrimination complaints proceeded to the Final Hearing before us.[23]There was an outstanding issue as to which of the First or Second Respondents was the employer of the Claimant.[24]At pages 82-90 of the bundle was the Claimant’s Statement of Terms and Conditions of Employment which she confirmed she had signed on 17 January 2022. The Statement makes clear that the Claimant was employed by Team W Ltd, the First Respondent. Her job title was described as Accounts Manager and it was not in dispute that this was later changed to Finance Manager to avoid confusion with her role and that of sales team members who had the title Account Manager. The Claimant was the only person with this job title. The place of work clause states the Claimant would be allowed to work from home one day each week. The role was full time.[25]Clause 16 dealt with sick pay. The Claimant was entitled to Statutory Sick Pay only.[26]The Claimant’s annual salary was set out at clause 10 as £35000.[27]The Claimant commenced employment on 23 November 2021.[28]Clause 24 dealt with grievance procedures and stated that a formal grievance should be raised in writing and that there was a right of appeal.[29]The Claimant was affectively line managed by the Third Respondent, Mr Manuel.[30]We firstly considered the issue of who the employer was. The Claimant told us she was unsure and that is why she brought proceedings against the First and Second Respondent. Whilst her Terms and Conditions of Employment said the First Respondent was her employer, her payslip and P45 said the Second Respondent, pages 166 and 169 of the bundle. The Third Respondent explained that the First Respondent was a vehicle for employing the staff who were deployed across the various companies and those companies would pay monies to the First Respondent to meet the salaries of those employees. The First Respondent was essentially a services company and there were crosscharging relationships in place. We therefore find the First Respondent was the 6 of 22 employer, which accords with the contract. We did not find the payslips and P45 to be determinative.[31]In or around March 2022, relatively shortly into her employment, the Claimant was diagnosed with cancer. The Claimant and Mr Manuel communicated relatively frequently using WhatsApp and we had copies of their messages in the bundle. We can see on 4 April 2022 the Claimant messaged Mr Manuel regarding having a scan and waiting for results.[32]One of the discrimination allegations the Claimant makes concerns what she describes as the Respondents excluding her from 1-2-1 meetings from April 2022.[33]We saw that the first such 1-2-1 meeting was diarised by the Claimant to take place on 20 April 2022, page 99. Mr Manuel accepted he was putting 1-2-1’s in place with staff members for catch-up reasons given some staff members worked remotely. He said he had no intention of formally documenting these meetings.[34]Mr Manuel told us he was unable to conduct the meeting scheduled for 20 April 2022 earlier in the day due to not having an office and the mezzanine at the workplace being too noisy due to the factory. His WhatsApp sent to the Claimant at 10:28 supports this where he says “the factory and office is so loud can we do your teams about 5:30? Just as it’s too noisy”.[35]At 10:29 the Claimant replied “yes okay. See you then”.[36]The meeting was rescheduled for 5:30 pm and the Claimant says she had prepared for the meeting. She says she waited but Mr Manuel did not join the meeting, which was to be conducted using a video platform.[37]Mr Manuel did not explain why he did not attend the meeting but did say he later spoke to the Claimant on the phone where she confirmed she had a medical appointment the following day. This is supported by his WhatsApp message sent at 20:16, page 96, where he says “Good luck tomorrow thinking of you both. Let me know if you need anything”.[38]The Claimant’s complaint is that no further 1-2-1’s were scheduled. Mr Manuel accepts that but says he was in regular contact with the Claimant. On the 22 April 2022, page 98, he messaged the Claimant asking how her appointment had gone and on 23 April 2022 he messaged offering a catch-up meeting the following Tuesday.[39]It is common ground that during the Claimant’s various treatments and recovery she was allowed to work exclusively from home. Mr Manuel confirmed this in a WhatsApp message to the Claimant on 29 March 2022 where he stated “it’s fine to work from home take your time and let me know if you need anything at all” and the Claimant replied “Thank you for your support…”, page 107. The Claimant received full pay rather than Statutory Sick Pay. Indeed the Claimant accepts the Respondents were supportive of her during this period. An example was Mr Manuel arranging to meet the Claimant and her husband at London Bridge in late May 2022, page 106. On 1 June 2022 the Claimant sent 7 of 22 a WhatsApp message to Mr Manuel thanking him for the gift of flowers and chocolates, page 109. Mr Manuel refused the Claimant’s request to take medical appointments as a holiday, page 102. He allowed her to take absence from work at short notice. Email evidence of this is an email exchange on 22 June 2022, page 136.[40]On 23 May 2022 the Claimant had surgery on her lung. On 8 June 2022 the Claimant WhatsApp’d Mr Manuel detailing her recovery and stating she was planning on returning to work on 13 June 2022. Mr Manuel replied to say that his mother Sonja had been assisting with finance tasks in the Claimant’s absence. The Claimant’s mother was a director of the companies. She was semi-retired but handled payroll. She had handed over finance tasks to the Claimant when the Claimant’s employment commenced.[41]In early June 2022 there were discussions about recruiting an accounts assistant. On 10 June 2022 Mr Manuel interviewed Hayley for this position. The Claimant told us she did not see the need for an assistant. The Respondents were clearly keen to relieve pressure on the Claimant and felt an assistant would be of use particularly as Sonja was assisting on a temporary basis.[42]On 13 June 2022 Mr Manuel WhatsApp’d the Claimant to say he had interviewed Hayley and that she was nice. She replied “Great news re Hayley”. These exchanges were at pages 114 and 116 and showed to us the Claimant was positive about the new appointment and welcomed the initiative at the time. The Claimant had drafted the job description for the role.[43]On 13 June 2022 the Claimant offered to attend any second interview for Hayley. The plan was for both the Claimant and Mr Manuel to conduct this second interview but Mr Manuel had car problems so the Claimant conducted it herself on 17 June 2022. After the interview the Claimant reported to Mr Manuel via WhatsApp that Hayley seemed really nice and emailed Mr Manuel to say she really liked her and was happy to proceed with her appointment, page 130. On 20 June 2022 Mr Manuel emailed the Claimant, page 128, to say Sonja was happy to help in training Hayley “whilst you are off for recovery”. Hayley’s start date was 23 June 2022 and Sonja emailed the Claimant on that date with a detailed update on her induction and training, page 130.[44]The Respondents were experiencing financial difficulties. On 22 June 2022 Mr Manuel emailed the Claimant saying “really happy for some money in this week and next! Cash flow swings are terrifying”, page 136.[45]By July 2022 the Second Respondent was facing immediate financial difficulties. Mr Manuel told us the COVID 19 pandemic and the war in Ukraine caused increases in the cost of utilities (fuel bills had tripled), and in material costs and caused customers to reduce their orders. He explained that in a 12- month period the Second Respondent went from £300,000 annual profit to a £380,000 loss. We note the Second Respondent is now in liquidation and Mr Manuel described to us his own personal liability for debts where he had given personal guarantees. There was uncertainty in July 2022 about the future of the Second Respondent given its own clients were facing difficulties. 8 of 22[46]In mid-July 2022 Mr Manuel contacted Ms Baker’s HR consultancy to seek advice on making redundancies. He was clear he needed to cut overheads.[47]Around this time the Claimant had further surgery. On 11 July 2022 she sent a WhatsApp to Mr Manuel referencing this and he replied that he was pleased she was home from hospital, page 144.[48]The Claiamnt’s next allegation of discrimination in the chronology concerns Mr Manuel stopping communicating with her after 18 July 2022 when she told him of her need for further treatment. On 18 July 2022, page 144, the Claimant sent a WhatsApp to Mr Manuel in which she stated that she had a check up that week and “I will get the results from the tests then so we will know more about the cancer and the next steps in treatment”. There was no reply. On 22 July 2022 the Claimant WhatsApp’d Mr Manuel again stating “cancer confirmed” and that chemotherapy would be required. Again there was no reply. On 29 July 2022 the Claimant messaged again to say chemotherapy would be starting the following week, page 146. Again there was no reply.[49]Mr Manuel accepts he did not reply and explained this was due to his concentrating on the financial pressures the Second Respondent was facing. Mr McLaughlin told us he attended an urgent meeting of directors on 24 July 2022 as an urgent situation had occurred in the business the previous week. He told us that at the meeting Mr Manuel announced redundancies were necessary. By mid-July 2022 the Second Respondent was clearly in crisis mode.[50]It is not in dispute that Mr McLaughlin was tasked to conduct the redundancy exercise and he gave evidence that he had previous experience of this and that he spoke with Ms Baker to obtain advice and guidance on the process.[51]We had in effect two statements from Mr McLaughlin. One in the bundle at pages 258-262, and one he had given as a witness for the Claimant in January 2024. I asked him about the genesis of the statement in the bundle – how he came to give it and when – and he was vague and unclear about this. It appears to the Tribunal that the statement in the bundle was created by Mr McLaughlin to assist and inform Ms Baker when she was conducting her investigation into the Claimant’s appeal against dismissal and grievance. There are important differences between the two statements which we shall return to.[52]The redundancy consultation exercise commenced on Monday 25 July 2022. During the course of that day Mr McLaughlin announced to the staff members on site that a redundancy exercise would be taking place and that there would be four to five redundancies. The Claimant was one of the three employees not on site. At 17:21 in the afternoon Mr McLaughlin emailed her, page 142, referring to “unfortunate news” and telling her the decision had been made to make four to five redundancies and that her role was at risk. He set out the rationale namely that sales in July were down 40% on June’s figures and there was a looming recession. He said he would like to arrange a telephone call or Zoom meeting with her to discuss matters. 9 of 22[53]The Claimant replied at 18:55, also page 142, stating “Gosh that’s a shock I’m available any time but Friday as will be seeing my oncologist” and that she would rather have a Zoom meeting as opposed to a telephone call.[54]Mr McLaughlin made similar communications with the other employees who were off site.[55]On Tuesday 26 July 2022 the Claimant and Mr McLaughlin met on Zoom. In the witness statement in the bundle Mr McLaughlin says they discussed cost saving exercises, including the Claimant suggesting “everyone working reduced hours maybe a 4 day week”. In his later witness statement he does not say that any such discussions took place but rather he intended such discussions would take place at a further meeting on 28 July 2022.[56]It is not in dispute that no further meeting took place with the Claimant on 28 July 2022. Mr McLaughlin did meet with other affected employees on that day. He says in the witness statement in the bundle that he ran out of time on the 28 July, the Thursday, and he was aware the Claimant had a medical appointment on the Friday such that he was unable to meet with her. In his witness statement given on behalf of the Claimant he referred to the appointment on Friday and said on the Thursday he did not want to disturb the Claimant out of working hours and also that he did not believe the Claimant’s role was at risk because her name had never come up as a candidate for redundancy. That latter element is new. The Claimant told us she was disappointed the second meeting did not go ahead as she had planned for and was waiting for it.[57]On Friday 29 July 2022 the Directors and Mr McLaughlin met to discuss who was to be selected for redundancy. We know that three compulsory redundancies were made. One of these was Mr Wilkes who gave evidence for the Claimant and who was in the role of Production Manager, one was Emma an Account Manager, and one was the Claimant.[58]Mr McLaughlin’s evidence in his statement on behalf of the Claimant was that at no time prior to this meeting was it mentioned that one person from each team would lose their jobs; he said in evidence he expected all redundancies to come from production. He said at this meeting on 29 July he was “surprised that the Third Respondent offered the Claiamnt up for redundancy, backed by his father, and that Sonja suggested the Claimant should be selected because “she made a lot of mistakes”.[59]This conflicts with his earlier statement in the bundle where at page 260 he states “the decision to make Denise’s role redundant was made, it was a very difficult decision given all the circumstances, but we thought it best for Denise and the company”. He does not intimate any surprise at the decision and makes no mention of mistakes being a reason for selection.[60]In evidence Mr Manuel accepted it was on 29 July 2022 that the Respondents decided who should be selected for redundancy. He was vague as to whether Mr McLaughlin knew that one individual from each department was to be selected in advance of the date. We find the decisions were made on 29 July and that before then there had not been any plan to select persons from 10 of 22 different departments. We believe Mr McLaughlin did not know this in advance and did not believe the Claimant was at risk.[61]Given that the Production Manager and the Claimant as Finance Manager were effectively in a pools of one we accept there was no need to apply selection criteria to them. Given the relationship between Mr Manuel and the Claimant, evidenced by the WhatsApp messages and in his evidence that she was a good employee, we do not find her competence was in question. The Respondent considered Sonja was able to assist in tasks, Hayley was engaged part time and it had a reduced need for a full time Finance Manager which would result in overhead savings. There was one further redundancy to be made from a pool of account managers. The Respondent chose Ian Parsons to be made redundant. He was informed of this but was then reinstated when a decision was then made to make redundant another account manager who was facing disciplinary proceedings.[62]Mr McLaughlin held a further Zoom call with the Claimant on 1 August 2022 and informed her she had been selected for redundancy. He informed the others who had been selected on the same day.[63]In the bundle was a letter dated 3 August 2022 that the Respondents wrote to the Claimant confirming her redundancy, pages 148-150. This confirmed her employment would end on 1 September 2022 and that she would be on garden leave until that date. Due to an administrative error there was a delay in sending this letter to the Claimant. The letter gave the right of appeal.[64]On 23 August 2022 the Claiamnt wrote to Mr Manuel appealing the decision on three grounds. Firstly that there was no fair process, secondly no fair reason for dismissal and thirdly making allegations of disability discrimination. She also complained of not having 1-2-1 meetings and Mr Manuel not replying to her WhatsApp messages. Her letter was at pages 152-153. She requested information about the pool, job descriptions, selection criteria and scoring, and asked for a list of job vacancies as at 27 July 2022 and for each week thereafter. In the same letter she raised a grievance concerning pension contribution shortfalls.[65]She emailed this letter to Mr Manuel and he replied on the same day expressing his sadness that the Claimant felt he was not supportive and that he had not understood how she felt about the 1-2-1’s. He explained that he would arrange an appeal hearing but that he was out of the country until 30 August 2022.[66]Mr Manuel asked Kelly Baker to deal with the appeal and grievance and on 26 August 2022 she emailed the Claimant to introduce herself, page 156. The Claimant replied to ask for help with a payslip.[67]On 30 August 2022 the Claimant wrote to Kelly Baker repeating her request for documentation concerning the redundancy exercise. She requested a monetary settlement to compensate her of £800.00. That correspondence was marked without prejudice. 11 of 22[68]At this stage we wish to make the point the bundle contained without prejudice communications and a draft Settlement Agreement. The witnesses in witness statements, and in evidence in chief and in cross examination, also referred to without prejudice discussions. We have therefore proceeded on the basis that privilege was waived by both sides and thus we refer to such information in our Judgment where relevant.[69]Ms Baker replied on 1 September 2022 to say she would speak to her client about the offer of settlement and a settlement agreement. In the email Ms Baker stated that the Respondent had an alternative role – not a suitable alternative as the role was on less pay and was less skilled and had fewer hours – but she asked the Claimant if it would be of interest and whether she would like any further information. It became clear during the hearing before us that this was the role filled in June 2022 by Hayley.[70]The Claimant never responded to this invitation. In evidence she told us she would have worked reduced hours on a phased return and with less pay and that the role was perfect for her given her treatment needs. This is why it is surprising to us that she did not engage with this.[71]There followed communications about the Claimant’s final pay, pension, holidays and P45.These took up substantial cross examination time, however these were not pleaded as discriminatory acts and so we do not need to go into the details.[72]On 5 September 2022 the Claimant again wrote to Ms Baker and again asked for documentation, page 174. As already noted, she did not reply to the invitation regarding a more junior role. On the same day Ms Baker replied saying she would send the information in due course, page 176.[73]On 6 September 2022 the Claimant emailed Ms Baker asking her to add the failure to send an August payslip to her grievance, page 178.[74]On 9 September 2022 Ms Baker replied by email acknowledging the emails. She explained she was investigating both the appeal against dismissal and grievance and would provide the information requested when she could but that individuals she needed to speak with had been on holiday which had resulted in a delay, page 182.[75]On 12 September 2022 the Claimant acknowledged the email and said she looked forward to receiving the documentation, page 184.[76]On 21 September 2022 the Claimant sent a further letter to Ms Baker, page 188, again marked without prejudice. She referred to her offer to settle and said she would proceed to the Employment Tribunal if matters were not settled. On the same day she sent an open letter, page 190, again chasing documentation and providing her availability dates for a Zoom meeting.[77]On the same day Ms Baker emailed the Claimant stating that she was now in a position to move forward with her investigation, page 192. 12 of 22[78]On 26 September 2022 Ms Baker emailed the Claimant attaching further information that she had collated and asking for a video meeting.[79]On 2 October 2022 the Claimant sent a letter to Ms Baker, pages 198-199, giving her availability for a meeting. She said she was still awaiting the documentation we have referenced already.[80]On 11 October 2022 the Claimant sent a further letter to Ms Baker, page 20, stating she would need to register her claim with ACAS before the end of November and providing further availability dates for a meeting. She again asked for the aforementioned documents.[81]In late October/early November 2022 it is clear the parties were in negotiations with a view to entering into a Settlement Agreement. Due to the financial position of the Second Respondent the Third Respondent was prepared to meet any settlement sum personally subject to doing so by instalments. Negotiations broke down and no Settlement Agreement was ever concluded.[82]On 10 November 2022 the Claimant says she met over Zoom with Ms Baker to discuss Ms Baker’s investigation. The agreement was that the meeting would be recorded but there were technical issues. At the meeting the Claimant asked why she had not been pooled with Hayley. The Claimant asked again for documentation that she had not received.[83]We think the date of the meeting was in fact 17 November 2022. We say this because on 16 November 2022 Ms Baker emailed the Claimant inviting her to a meeting on 17 November. She said she would be discussing her findings so far but said she was not yet ready to give a decision. No one gave evidence about a meeting on 17 November 2022, but we presume it took place as on 18 November 2022 Ms Baker sent the link to the recording of the meeting to the Claimant, page 234.[84]On 14 November 2022 the Claimant went to ACAS for early conciliation.[85]The outcome of the dismissal and appeal and the grievance were never conveyed to the Claimant. Ms Baker’s evidence was that she discontinued the process on learning of the registration with ACAS for early conciliation and on the submission of the ET1. We accept this would have been most unsatisfactory from the Claimant’s point of view. She had been offered a right of appeal and received no outcome to this, nor to her grievance.[86]We heard evidence that in November 2022 the Respondents engaged the CFO Centre to assist as professional finance experts to seek to rescue the businesses. We are satisfied this was a necessary step and we accept Mr Vernard’s evidence that the redundancies were a cost cutting exercise and his view was the redundancies that were made did not go far enough. We note the Respondent tried to make cost savings elsewhere including the directors taking pay cuts and reducing business with suppliers.[87]Evidence was heard suggesting the Respondent had advertised other positions after the redundancies. One was a night production worker. We accept the Respondent’s evidence that an order was doubled requiring this worker and 13 of 22 that this was not on the horizon at the time of the redundancies. There was also an advertisement for a part time credit controller in November 2024. The Respondents evidence was that no-one was ever recruited to that post and agency staff were utilised instead. The commentary to the formal company information in the bundle at pages 301-311 supported the Respondents evidence as to the dire financial position.
The Law
[88]Given both parties were unrepresented, albeit each had taken some legal or HR advice during the proceedings, in our oral Judgment we gave only a brief synopsis of the law relating to the issues we had to decide. We have added to these written reasons the various statutory provisions.[89]Firstly we turn to the burden of proof which is contained in s136 of the Equality Act 2010. S136 provides: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[90]What this means is that if the Claimant can prove facts which, in the absence of any other explanation, point to a contravention of the Act we then look to the Respondents for a non-discriminatory explanation. This is known as the shifting burden of proof. Even if the burden of proof shifts, the Respondents can show that the specific disability was not the reason for their treatment of the Claimant.[91]The EAT in Barton v Investec Henderson Crosthwaite Securities Ltd (2003) IRLR 332 gave guidance on the burden of proof which was later endorsed by the Court of Appeal in Igen Ltd and Others v Wong and Other cases (2005) IRLR 258 and then by the Supreme Court in Hewage v Grampian Health Board (2012) IRLR 870.[92]We must ask ourselves:a. Can the Claimant show a prima facie case? If so the burden shifts to the Respondents.b. Then we ask, is the Respondent’s explanation sufficient to show it did not discriminate?[93]This test is not rigid – it is open for us to make the findings on the evidence one way or another, and to assess all that we have heard in the round. The burden of proof “need not be applied in an overly mechanistic or schematic way” Khan 14 of 22 and Another v Home Office (2008) EWCA Civ 578. Essentially if we are persuaded that the Respondents have offered a genuine reason for any treatment which is not consciously or unconsciously discriminatory, the claim fails and we do not need to be concerned about whether the burden has shifted.[94]The Claimant complains of direct disability discrimination under s13 Equality Act 2010. Direct discrimination occurs where, because of disability, a person A treats a person B less favourably that A treats or would treat others. S13 provides: “(1) A person(a) (A) discriminates against another person(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[95]The Claimant must show she was treated less favourably than a comparator whose circumstances are not materially different to hers. Here she relies on a hypothetical comparator – such a comparator may be non-disabled or have a different disability to her.[96]The relevant circumstances that the Claimant and the hypothetical comparator must share are those which the Respondents took into account when deciding to treat the Claimant as they did. Shamoon v Chief Constable of The Royal Ulster Constabulary (2003) IRLR 285.[97]The less favourable treatment must be because of disability. We need to focus on “the reason why” the Claimant was treated less favourably (if indeed she was) and ask ourselves what was the reason for the treatment? Nagarajan v London Regional Transport and Others (1999) IRLR 572. The reason must be the disability itself (in this case cancer), not something related to the disability.[98]The Claimant also complains of discrimination arising from disability under s15 Equality Act 2010. S15 provides: “(1) A person(a) (A) discriminates against a disabled person(b) (B) if: (a) A treats B unfavourably because of something arising in consequence of B’s disability; and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”[99]The test here concerns treating unfavourably because of something arising in consequence of B’s disability rather than because of the disability itself. We must ask what was the treatment and was it unfavourable to the Claimant. It is open to the Respondents to seek to justify this type of discrimination by raising the justification defence, i.e. by showing their treatment of the Claimant was a proportionate means of achieving a legitimate aim. Employment Judge Heath at the Case Management Preliminary Hearing set out this justification element and gave the Respondents leave to file an Amended Response. They did not 15 of 22 do so. At the outset of this hearing and before submissions I reminded Mr Manuel that if the Respondents were relying on any legitimate aim he should address us on this and he did not do so. We of course take account of any justifications given by the witnesses in evidence.[100]The EAT in Basildon Thurrock NHS Foundation Trust v Weerasinghe UK EAT/0397/14 held that in s15 claims we are concerned with the following test:a. Did the Claimant’s disability cause or result in something?b. Did the Respondent treat the Claimant unfavourably because of that something?[101]The EHRC Code gives examples of the types of consequences of a disability which may amount to something arising and include:a. The need for regular rest breaks.b. Regular hospital appointments.[102]We turn now to our conclusions on each allegation. Direct Disability Discrimination[103]We will deal with each allegation in turn:a. Excluding the Claimant from 1-2-1 meetings from April 2022. To the extent this allegation started with the 20 April 2022 1-2-1 we find in fact that the parties did speak on that day such that there was no less favourable treatment. In May-August 2022 there were no formal 1-2-1’s but we have seen evidence of other communications by email and WhatsApp and in person where the Respondents were kept abreast of the Claimant’s tasks and availability. Had the Claimant requested a formal 1-2-1 we are certain the Respondents would have acquiesced. We are satisfied that a hypothetical comparator working from home on a reduced hours basis would have been treated in the same way. The Respondents would have sought to communicate in a similar way. We do not uphold this allegation. We did not find the reason for the failure to hold further 1-2-1’s was the Claimant’s disability.b. Excluding the Claimant from redundancy consultation meetings between 26 July 2022 and 1 August 2022. We find the Claimant was excluded from a second consultation meeting and that was less favorable treatment. Where this element fails is in relation to the comparator. An absent from work comparator with a booked medical appointment would have been treated in the same way. 16 of 22 We do not uphold this allegation.c. The Third Respondent stopping communicating with the Claimant after 18 July 2022 when she told him of the need for further treatment. It is not in dispute that the WhatsApp messages stopped after this date. However, Mr Manuel’s evidence was that he was in throes of trying to rescue his business at the time and we are satisfied with that explanation and that he did not treat the Claimant as he did because she had a disability. We are satisfied Mr Manuel was seeking HR advice at the time and was contemplating redundancies where all posts would be at risk and him distancing himself from the Claimant at that time was a reasonable step against that background. We do not uphold this allegation.d. The Respondent’s failure to consider the Claimant for the part-time junior role occupied by Hayley. It is clear that at the time of dismissal the Respondent did not offer the Claimant Hayley’s role or in fact seem to consider this an option. This disadvantaged the Claimant. We are however of the view that a full time Finance Manager on a salary of circa £35000 without the Claimant’s disability would find themselves similarly treated. The Respondents would have taken the view a part time role on less salary was unattractive and not suitable alternative employment. We do not uphold this allegation.e. Dismissing the Claimant. The Claimant was selected for redundancy and was dismissed. This was clearly a disadvantage. We accept the Respondents were in a perilous financial situation and that redundancies were necessary, albeit they were trying to keep these to a minimum. We are not persuaded the reason for the Claimant’s selection was her disability. The reason was clearly redundancy. The Claimant was selected as her role could be covered by Sonja at no additional cost. We find a person without the Claimant’s disability and in the role of Finance Manager would have been similarly selected. We do not uphold this allegation. Discrimination arising from disability[104]Again, we deal with each allegation in turn:a. Excluding the Claimant from 1-2-1 meetings from April 2022. The List of Issues states the something arising is the Respondent’s view that the 17 of 22 Claimant should be left to focus on the situation that she was going through. We have already stated that although the 1-2-1’s did not occur there was regular communication – London Bridge, WhatsApp, emails and involving the Claimant in the recruitment of Hayley. We do not accept the Respondents failed to hold 1-2-1s because they were leaving the Claimant to focus on her situation because regular communications continued. We do not find the failure to hold 1-2-1’s was because of the something arising pleaded in this case. The Respondent was not leaving he Claimant to focus on her treatment and recovery as there was regular communications between them. It was clear to us that the Respondents were not leaving the Claimant to focus on the situation she was going through. There was regular engagement with her during her treatment. We do not uphold this allegation.b. Excluding the Claimant from redundancy consultation meetings between 26 July 2022 and 1 August 2022. The something arising in the List of Issues is said to be the Respondent’s view that the Respondent should not be put to unnecessary burden. We have had difficulty understanding the something arising here. If the above is right and the something arising is duly said to be the Respondent not wishing to be put to unnecessary burden this does seem to us to work as this cannot arise from the Claimant’s disability. Mr McLaughlin would have been willing to speak in a 1-2-1 with the Claimant but ran out of time and did not want to speak with her on the Friday, not because of any burden to him, but rather because she had informed him she had a hospital appointment on that date and because he did not actually think she was at risk of being selected for redundancy. If there is a typographical error and the something arising is in fact that the Claimant should not be put to unnecessary burden then she was subjected to less favorable treatment because of this in that she, unlike others, did not have the opportunity of a second 1-2-1 in which she may have suggested reduced hours, a reduced hourly rate or indeed taking Hayley’s role. She was denied the expected opportunity to signal to or persuade the Respondents of her preparedness to take a salary cut or reduce her hours. We accept her evidence that she would have done this at a difficult time for her and the business, and the goodwill between them had not been lost at that point. Mr McLaughlin says he did not see the Claimant on 26 July as he ran out of time and did not wish to disturb her after working hours and he did not contact her on Friday as she had an oncology appointment. These are things arising from the disability. 18 of 22 We do accept that Mr McLaughlin’s main driver was that he did not think the Claimant was at risk of redundancy so he did not think it necessary to hold a second 1-2-1 with her. However, once he discovered the Respondents were looking to select her on 29 July he still had the opportunity to consult with her before delivering the fait accompli to her on 1 August. He could have held a 1-2-1 on the morning of 1 August, considered her arguments and then reached a final decision later that day, or even the following day, given the confirmation letters were dated 3 August and were delayed in their delivery. We find there was unfavorable treatment because of something arising in consequence of the Claimant’s disability. No justification argument was put forward by the Respondents. We uphold this head of claim.c. The Third Respondent stopping communicating with the Claimant after 18 July 2022 when she told him of the need for further treatment. The something arising is set out in the List of Issues as the Respondents understanding that the Claimant would need further treatment. We do not find the communication stopped because the Respondents were concerned the Claimant would need further treatment. The Claimant had already undergone extensive treatment prior to this and the Respondents had been supportive. From around 6 April 2022 the Respondents had been aware of the likely prognosis and had not stopped communicating. The communication stopped after 18 July 202 not because of the likelihood of further treatment but rather because of the Respondents having urgent business priorities. We do not uphold this head of claim.d. Dismissing the Claimant. The something arising in the List of Issues is said to be the Respondents perception that the Claimant would be too costly to keep given her diagnosis. We did not find the Claimant was dismissed because that the Respondents believed she would be too costly to keep given her diagnosis. She was dismissed for reason of redundancy and because her role could be carried out in part by Sonja at no extra cost. She was not the only employee who was made redundant. The Respondents had previously been supportive of the Claimant after the diagnosis and we have no doubt they would have continued to be supportive had the dire financial circumstances not arisen. We are persuaded further because when the Claimant objected and raised her grievance that Respondents offered to consider the Claimant for Hayley’s role via Ms Baker, demonstrating they were not resistant to 19 of 22 continuing to employ her with her diagnosis and need for further treatment. We do not uphold this head of claim.[105]We are not going to make a finding against Mr Manuel personally – he did not conduct the redundancy consultation and he did put forward the alternative post. The finding we have made is against the First Respondent as the Claimant’s employer.
Remedy
[106]After handing down our oral Judgment on liability, we moved to consider remedy.[107]The Claimant will be entitled to an injury to feelings award for the sole act of discrimination that we determined in her favour. In our deliberations on liability we had considered the evidence the Claimant had already given as to her hurt feelings, and we indicated to the parties we had given due consideration to an appropriate award for injury to feelings.[108]The Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No 2) 2013 IRLR 102 set clear guidelines for compensation for injured feelings and set out three bands:a. The lower band for “less serious cases, such as where the act of discrimination is an isolated or one-off occurrence”.b. The middle band for “serious cases, which do not merit an award in the highest band”.c. The top band for “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment”.[109]Looking at the Vento bands at the relevant time these were, lower £990- £9,900 and middle £9,900-£29,600.[110]We had heard evidence from the Claimant as to how upset she was at what occurred. This of course was her upset in relation to all the allegations she had made and we had only upheld one. An award for injury to feelings is to compensate the Claimant for anger, distress and upset that she felt by virtue of missing her second consultation meeting which, had it gone ahead, may have resulted in her not being dismissed.[111]We then turned to discussing financial loss.[112]In the appeal and grievance letter at page 154 the Claimant said she would have had chemotherapy until December 2022 and had taken legal advice and believed that she would be unable to earn a wage until February 2023. 20 of 22[113]We were of the view the Claimant would have left the alternative role that should have been offered to her in the missed consultation exercise as soon as she was able to work more hours and in order to earn a higher salary.[114]We assessed injury to feelings at the higher end of the lower band at £8,500. We considered the fact that the Claimant had had a serious medical diagnosis a few months before the discriminatory act and was going through treatment at the time. She would have felt vulnerable and it was clear from her evidence that she had suffered stress and upset and a loss of confidence when she was selected for redundancy, coupled with concerns about her ability to get another job and the fact the Respondents failed to deal with her appeal and grievance. The act was a one-off act of discrimination but the effect on the Claimant was significant.[115]We considered the Schedule of Loss in the bundle. The Claimant actually obtained a new role on 3 January 2023 which was absolutely to her credit and her losses stopped there.[116]After discussion with the parties we agreed that the salary the Claimant would have earned had she taken Hayley’s role would be £31.30 a day. The period from 2 September 2022 (the date after dismissal) to 3 January 2023 (the date the Claimant obtained new employment) was 124 days so her loss of earnings was £3882.38.[117]After discussions we established the pension contributions applicable were 8.3% from the employer.[118]The Claimant claimed private Vitality healthcare 69.11 per month and the Respondents did not object to this. The total financial loss (salary, pension, healthcare benefit was therefore £4,268.33 – salary £3882.38, pension £116.44 and healthcare £269.51).[119]Interest runs from half way point which is 7 August 2023 – 374.5 days.[120]We then turned to the issue of interest. In discrimination cases interest may be awarded under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996.[121]Interest runs on injury to feelings from the date of the discriminatory act to today’s date, known as the date of calculation. We find the discriminatory act was 29 July 2022, the day the Respondents made the decision to dismiss the Claimant without having a further consultation meeting.[122]Interest runs from date of discriminatory act to 16 August 2024 which is 749 days.[123]Interest runs at 8%, so the interest sum is £1393.40. 21 of 22[124]Urning to the award for financial loss, interest runs from the mid-point date to the date of calculation. The mid-point is calculated as the date halfway between the date of the discriminatory act and the date of calculation. This is 374.5 days. Interest of financial losses is therefore £350.35.[125]At the end of the hearing the Tribunal wishes the parties well. It was clear to us that the Claimant and Mr Manuel had once been friendly and that both had suffered by virtue of the matters leading to this claim.