Employment Judge BurgeIn person for claimantMs Ifeka (instructed by Counsel) for respondentDate 12 September 2024
JUDGMENT
[1]Compensation for the successful complaint of indirect sex discrimination is assessed at £13,407.01 as follows: Award Interesta. Injury to feelings £5000£1293.15b. Financial losses £6,299.27£814.59
REASONS
[2]Liability in this case was determined at a final hearing on 9 – 12 September 2024.[3]The Claimant succeeded in a complaint of indirect sex discrimination in relation to being required to work five days a week in the office/on site with no prior notice from October 2021. Her other complaints were not well founded and dismissed.[4]This hearing was listed to consider and determine remedy. The hearing was originally listed for 3 hours but was extended to determine the Respondent’s application for reconsideration.[5]The Claimant gave evidence on her own behalf. Peter Chisnall (Senior HR Business Partner) gave evidence on behalf of the Respondent. A remedy bundle of 205 pages was before the Tribunal. Both the Claimant and Ms Ifeka gave closing submissions.
Law
[6]Section 124 Equality Act 2010 (“EqA”) provides as follows:(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).(2) The tribunal may— (a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; (b) order the respondent to pay compensation to the complainant; (c) make an appropriate recommendation.(3) An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate. 4) Subsection (5) applies if the tribunal— (a) finds that a contravention is established by virtue of section 19 or 19A, but (b) is satisfied that the provision, criterion or practice was not applied with the intention of discriminating against the complainant. (5) It must not make an order under subsection (2)(b) unless it first considers whether to act under subsection (2)(a) or (c). (6) The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the County Court … (7) If a respondent fails, without reasonable excuse, to comply with an appropriate recommendation, the tribunal may— (a) if an order was made under subsection (2)(b), increase the amount of compensation to be paid; (b) if no such order was made, make one.[7]For a claim of indirect discrimination, therefore, the Tribunal must first consider whether a declaration or a recommendation should be made before considering whether to make an order for compensation. The tribunal must approach the question of remedy in the prescribed order: Wisbey v Commissioner of the City of London Police [2021] ICR 1465.a. First, pursuant to s.134(4) EqA 2010, the tribunal must consider whether it is satisfied that the PCP was not applied with the intention of discriminating against the complainant.b. Second, the tribunal must consider whether to act under the other subsections, that is, to make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate (s.124(2)(a)) or to make an appropriate recommendation (s.124(2)(c) EqA 2010).c. Only after considering whether to act under these subsections can the tribunal go on to consider whether to make an order for compensation under s.124(2)(b) EqA 2010. The tribunal can decide that it is appropriate to order all three remedies.[8]In JH Walker v Hussain [1996] ICR 291 the Employment Appeal Tribunal considered the meaning of “intention” within s.57(3) RRA 1976 and said that intention is made out if(i) the respondent wants to bring about the prohibited result and(ii) knows that the prohibited result will follow from his acts. “Intention is a state of mind commonly required in law to accompany the performance of a specified act in order to establish liability for that act. The crucial question is what state of mind is relevant to a respondent in the particular context of section 57(3)? In our view, as a matter of ordinary English, "intention" in this context signifies the state of mind of a person who, at the time when he does the relevant act (i.e., the application of the requirement or condition resulting in indirect discrimination) (a) wants to bring about the state of affairs which constitutes the prohibited result of unfavourable treatment on racial grounds; and (b) knows that that prohibited result will follow from his acts.”[9]In JH Walker v Hussain it was held that a tribunal may infer that a person wants to produce certain consequences from the fact that he acted knowing what those consequences would be. In that case, the tribunal was entitled to conclude that JH Walker had failed to establish that it did not intend to treat the applicants unfavourably on racial grounds since JH Walker knew that Eid was important to the applicants, that they were the only employees affected by the application of the condition concerning holidays and that they were required to work on Eid. It is important to note that the Respondent no longer bears the burden of showing that it did not intend to treat the employee unfavourably.[10]In British Medical Association v Chaudhary [2007] C.L.Y. 1390 Mummery LJ revisited his guidance in Hussain and held as follows (albeit obiter dicta): “We think that for the respondent to intend to treat the applicant unfavourably on racial grounds, he would have to have actual knowledge or conscious realization that the condition he had imposed would have disparate impact on one racial group and that he that [sic] positively wished it to have that effect.”[11]The Equality and Human Rights Commission’s Code of Practice on Employment provides guidance at 15.45: “Indirect discrimination will be intentional where the respondent knew that certain consequences would follow from their actions and they wanted those consequences to follow. A motive, for example, of promoting business efficiency, does not mean that the act of indirect discrimination is unintentional.”[12]In addition to pecuniary losses, the Tribunal may make an award for injury to feelings. The guidance in Prison Service and ors v Johnson [1997] ICR 274 remains relevant:a. awards for injury to feelings are designed to compensate the injured party fully but not to punish the guilty party;b. an award should not be inflated by feelings of indignation at the guilty party’s conduct;c. awards should not be so low as to diminish respect for the policy of the discrimination legislation. On the other hand, awards should not be so excessive that they might be regarded as untaxed riches;d. awards should be broadly similar to the range of awards in personal injury cases;e. tribunals should bear in mind the value in everyday life of the sum they are contemplating; and tribunals should bear in mind the need for public respect for the level of the awards made.[13]The Presidential Guidance on Employment Tribunal awards for injury to feelings and psychiatric injury following De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879 for claims presented on or after 6 April 2021 is as follows:-a. a lower band of £900 to £9,100 (less serious cases);b. a middle band of £9,100 to £27,400 (cases that do not merit an award in the upper band); andc. an upper band of £27,400 to £45,600 (the most serious cases), with the most exceptional cases capable of exceeding £45,600[14]The aim of compensation is to put the Claimant in the position they would have been in but for the unlawful conduct in so far as that can be achieved with financial compensation (Ministry of Defence v Cannock [1994] ICR 918). “Tribunals [should] … not simply make calculations under different heads, and then add them up. A sense of due proportion, and look at the individual components of any award and then looking at the total to make sure that the total award seems a sensible and just reflection of the chances which have been assessed.”[15]The loss must flow directly and naturally from the tort. When assessing discrimination it is necessary to ask what would have happened had there been no unlawful discrimination/harassment and to adjust the compensation appropriately in light of the answer (Chagger v Abbey National PLC [2010] IRLR 47).[16]In BAE Systems (Operations) Ltd v Konczak [2018] ICR 1 the Court of Appeal reviewed the authorities, resolved certain conflicts between them, and gave guidance which can be summarised as follows:a. assessment of damages would take account of any pre-existing disorder or vulnerability, and of the chance that the claimant would have succumbed to a stress related disorder in any event;b. where psychiatric harm had more than one cause, the employer should only pay for that proportion attributable to his wrongdoing, unless the harm was truly indivisible;c. in conducting the apportionment exercise the question was whether the tribunal could identify, however broadly, a particular part of the suffering which was due to the wrong; not whether it could assess the degree to which the wrong caused the harm;d. where a claimant suddenly tipped over from being under stress into being ill, the tribunal should seek to find a rational basis for distinguishing between a part of the illness due to the employer’s wrong and a part due to other causes; that, if there was no such basis, the injury would be truly indivisible, and the claimant was required to be compensated for the whole of the injury.[17]Pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, Regulation 2 provides that the tribunal may include interest on any sums awarded in discrimination claims, and must consider whether to do so without the need for any application by a party in the proceedings. Parties may agree interest: Reg 2(2). If they do not, interest is calculated as simple interest which accrues from day to day at the rate (currently 8%): Reg 3(1). Interest on injury to feelings awards is to be interest beginning on the date of contravention or act of discrimination complained of and ending on the day of calculation (Reg 6(1)(a)). Interest on all other sums is calculated from the mid-point date between the date of contravention and the date of calculation (Reg 6(2) and 6(1)(b)).[18]Where the tribunal considers that in the circumstances serious injustice would be caused if interest were to be awarded in respect of the periods specified in Regs 6(1) and (2), the tribunal may calculate interest in respect of such different period as it considers appropriate (Reg 6(3)). The tribunal’s written statement of reasons for its decision must contain a statement of the total amount of any interest awarded and how it has been calculated (Reg 7(1). If the tribunal does not award interest then it must provide reasons for doing so (Reg 7(2)).[19]The usual principles of mitigation of loss apply (Citibank NA v Kirk [2022] EAT 103, [2022] IRLR 925.
Findings
[20]The Claimant was auto-enrolled into a pension in May 2021. On 29 July 2021 the Claimant opted out of the pension. She does not recall doing this. She did not complain in the subsequent months when the pay slips stopped showing pension contributions and so the Tribunal finds, on balance, that the Claimant opted out and so was not entitled to pension contributions once she had opted out.[21]The Respondent’s Driving on Company Business Policy and Procedures provides that a car allowance is to cover the costs of an employee using their private car for work. The Claimant did not have any “other form of independent transport”, her partner having taken the car. The Claimant is therefore not entitled to a cash allowance for the use of a private vehicle. The Respondent’s Driving Policy states that employees can choose between a company car or a cash allowance. The Claimant chose to receive a company car rather than a cash allowance. Unfortunately there were delays to the provision of the company car caused by the pandemic. There was no provision for a cash allowance while waiting for a delayed company car. Further, the delays in the company car being provided were not caused by the Respondent’s conduct. The Claimant is therefore not entitled to financial compensation for the delay of the company car.[22]Mr Power, the Claimant’s manager, had concerns about the Claimant’s performance. He did not mind where the work was being done from, he allowed her to work flexibly to accommodate her difficulties with childcare - she could do some drop offs/pick ups and could work back the hours. On 7 October 2021 the Claimant had told Mr Power that she “had issues at home” and was “really struggling with things at the moment”. Mr Power, under pressure to deliver, said that the work had to be done, “no excuses”.[23]On 13 October 2021 the Claimant got a fit note from her doctor signing her off her anxiety stress and low mood. The Claimant’s evidence is accepted that she was depressed, anxious and not sleeping properly. She did not give the fit note to the Respondent and continued to work. At around that time she had two counselling sessions which helped a little bit.[24]On 21 October 2021 Mr Power told the Claimant that she had to come into the office 5 days per week going forward (two days in the office and three days on site) from 9 – 5.30. The Claimant took this to mean from the following Monday (25 October) and this was confirmed on Friday 22 October by Ms Foley, HR. Mr Power wanted the Claimant to work from the office because of concerns about her performance. He knew that the Claimant would be unable to comply with the directive due to her childcare arrangements. While the Respondent knew that certain consequences would follow from their actions, the Tribunal concludes that it cannot be said that they wanted those consequences to follow. What they wanted was for the Claimant’s performance to improve. They did not want to make the Claimant unwell and for her to not comply with the mandate. The discrimination was therefore unintentional.[25]The Claimant was already unwell when the discriminatory act occurred on 21 October 2021. She was in a busy demanding job, was the carer for her young school age daughter and she had separated from her partner in July 2021, although she did not tell anyone at the Respondent. The Claimant’s GP notes, disclosed for the purposes of the remedy hearing, show that she told the GP that she was still with her partner and her home life was stable. The Tribunal accepts her evidence that this was not true, she was worried about the GP’s perception of her care of her daughter when she was unwell and without support. The Tribunal also accepts the Claimant’s evidence that the ex partner would come and go and did not help her with childcare. The Respondent had also not provided her with a company car, due to a shortages caused by the pandemic, she lived 1 ½ hours commute away and so she had transport issues also. If the Respondent had not mandated her to work in the office 5 days per week going forward (two days in the office and three days on site) from 9 – 5.30, the Claimant would have continued to struggle but she would not have become so unwell and would have continued working.[26]On 22 October 2021 the Claimant commenced sickness absence, she forwarded a Med 3 from her GP at 10.26 to Ms Foley in HR. She remained off work until her employment terminated and was paid sick pay.[27]Sometime between 22 October 2021 and entering her grievance the Claimant formed the view that she wanted to be released from her contract. The Tribunal found as a fact, that from the midpoint date, namely 14 November 2021, the Claimant decided that no matter what the outcome of the grievance due to the discriminatory treatment of her, she considered the contract to be at an end. The Claimant’s evidence at the remedy hearing does not alter that finding. However, at that time the Claimant was not well enough to work or to look for other employment. In evidence at the remedy hearing the Claimant said that she did not think about applying for other jobs, she eventually obtained the new job by being contacted through linked in. When challenged that she did not apply for jobs between November to March 2022, the Claimant said she would have done but she did not remember clearly. At that time the job market was for good for architects.[28]The Claimant had been resistant to taking anti-depressants but decided in December 2021 to start taking them. She stopped after a month. The Tribunal finds that the Claimant started to look for other jobs from late January 2022.[29]The Claimant decided not to appeal on 22 February 2022. When requesting fit notes thereafter she said that she was still in the grievance procedure which was not true. The Tribunal rejects her explanation to the Tribunal that she meant she was still suffering the effects of the grievance procedure as this is not what she said. The Tribunal finds that the Claimant was well enough to return to work, or work elsewhere by 22 February 2022.[30]The Claimant resigned on 23 March 2022. In her resignation letter she said “I now feel my continued employment, following dismissal of my grievance, is completely untenable.” Her employment terminated on 22 June 2022.
Conclusions
[31]As the indirect discrimination was unintentional, by virtue of s.124(4) and (5) EqA the Tribunal first considers whether or not to make a declaration or a recommendation before awarding any financial compensation. The Tribunal has already reached the conclusion that the Claimant was indirectly discriminated against in relation for her sex in relation to being required to work five days a week in the office/on site with no prior notice from October 2021 and the Tribunal makes a declaration to that effect.[32]The Claimant confirmed that she was not seeking a recommendation. The Tribunal declines to make a recommendation.[33]The Claimant seeks financial losses, namely the difference between her sick pay and full pay, a car allowance and unpaid pension contributions. She also seeks an award for injury to feelings. The Tribunal is satisfied that it is appropriate to make a compensatory award as not doing so would not mark the seriousness of the discrimination we have found in this case.[34]The Claimant was already unwell when the PCP was applied to her. However, she was still in work. The application of the PCP made her more unwell and she became unable to work. The financial consequences of that were that she ceased to receive full pay and instead received sick pay. As stated above, she was not entitled to receive pension payments nor a car allowance. The Respondent submits that there should be a reduction due to the Claimant’s contributory conduct in not submitting her sick note. The Tribunal rejects this. Having sought a sick note the Claimant decided that she was feeling well enough to work. This is not contributory conduct.[35]The Tribunal concludes that the Claimant is entitled to her financial losses from the first day of her sickness absence (22 October 2021) to 22 February 2022 (being the date she declined to appeal the grievance outcome, was well enough to start mitigating her losses by returning to work or starting new employment). That is 123 days or 4 months x £4,349.27 = £17,397.08. The Claimant received £11,097.81 for salary, company sick pay and SSP during the period 22 October 2021 to the last day of her employment, 22 June 2022. The Claimant’s past financial loss are therefore £6,299.27. Interest is awarded from 3 June 2023 which is the midpoint between last act of discrimination (21 October 2021) and the date of calculation of interest (13 January 2025). This is 590 days which equates to £814.59. The Claimant’s total financial loss is therefore £7,113.86.[36]For injury to feelings, the Tribunal takes into account the exacerbation of the Claimant’s depression, anxiety and sleep issues that caused her to be unable to work from 22 October 2021. She trialed antidepressants in December 2021. She was well enough to start working from 22 February 2022. These are significant injuries but we conclude they are appropriately situated within the middle of the lower Vento band and so the Tribunal awards the Claimant £5000 by way of injury to feelings. Interest on injury to feelings, from the last act of discrimination (21 October 2021) to the date of calculation (13 January 2025) is 1180 days at 8% which equates to £1293.15. The total award for injury to feelings is therefore £6,293.15.[37]Standing back and looking at the amounts, the Tribunal is satisfied that the award is appropriate. RECONSIDERATION JUDGMENT
Conclusions
[1]It is the Judgment of the Tribunal that upon reconsidering the Judgment of the Tribunal handed down to the parties orally on 12 September 2024, and confirmed.[2]At the final hearing the Tribunal decided that the Claimant’s complaint of indirect sex discrimination in relation to being required to work five days a week in the office/on site with no prior notice from October 2021 succeeded. The other complaints were not well founded and were dismissed.[3]Upon receipt of the Claimant’s medical records, disclosed in preparation for the remedy hearing, the Respondent made an application for reconsideration of the Tribunal’s liability Judgment.[4]The reason for the Respondent’s application was that the Claimant had given evidence to the Tribunal that she was effectively a single parent and was separated from her partner from July 2021 through to after she resigned. The Tribunal had found that she had suffered individual disadvantage. However, the Claimant’s medical records show three entries indicating that the Claimant was still living with her partner, the final entry on 10 November 2021 saying that everything was stable.[5]The Employment Tribunal Rules of Procedure 2024 provide: 68.—(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. (2) A judgment under reconsideration may be confirmed, varied or revoked. (3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion. Application for reconsideration 69. Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of—(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or(b) the date that the written reasons were sent, if these were sent separately. Process for reconsideration 70.—(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.[6]Ladd v Marshall [1954] 3 All ER 745, [1954] 1 WLR 1489 held that it was possible to consider fresh evidence on reconsideration if:(a) that the evidence could not have been obtained with reasonable diligence for use at the original hearing(b) that it is relevant and would probably have had an important influence on the hearing; and(c) that it is apparently credible[7]This was confirmed in Outasight VB Ltd v Brown UKEAT/0253/14 (21 November 2014, unreported) and Dundee City Council v Malcolm UKEATS/0019/15 (9 February 2016, unreported)).[8]The Tribunal decided it was in the interests of justice to reconsider the Judgment and hear the Respondent’s application out of time. In accordance with Ladd:a. The evidence from the GP could not have been obtained by the Respondent with reasonable diligence. It was for the Claimant to obtain and disclose the evidence. The Claimant is a litigant in person and the original Case Management Order was not clear about what relevance the medical records had to the issues.b. The evidence appeared to contradict the Claimant’s evidence to the Tribunal and so it was relevant and was likely to have had an important influence on the hearing; andc. The evidence was credible - it was her GP record.[9]The Tribunal therefore granted the application for the new evidence to be adduced, the Claimant’s witness statement to be admitted and for her to be examined on the evidence and witness statement.[10]The Respondent’s reconsideration application is premised on the inconsistency between the Claimant’s evidence to the Tribunal and the medical evidence which raises serious questions as to:(i) the Claimant’s credibility as a witness of truth;(ii) the Tribunal’s findings of fact; and(iii) the Tribunal’s finding on liability.[11]The Claimant objected to the application, submitting that what she told the GP was incorrect but the evidence she gave to the Tribunal was true.
Findings of Fact
[12]In its Judgment the Tribunal found that The Claimant is the carer for her young school age daughter. She separated from her partner in July 2021, although she did not tell anyone at Barratts. The Claimant says that this meant that she was effectively a single parent. There was also a complication in that the Claimant lived in St Albans and she had been contractually promised a company car which had not yet arrived. It would have taken the Claimant 1 ½ hours to commute to the Brentford Office without the car on public transport and she had to perform some school pick ups and drop offs throughout the week for her daughter. [paragraph 22] … The Claimant did not attend the office two days a week from the week commencing 6 September 2021 as she had said she would. The Claimant’s evidence to the Tribunal is accepted that even if her company car had arrived she still would have found it difficult. There was a shortage of childcare, there were long waiting lists for full time child care. In September she only had 2 days a week cover. She would often do the school runs herself and work earlier or later in the day to compensate. She also relied on friends to help. Mr Power’s evidence is accepted that “as long as the work was getting done, I don't mind where” it is being done. [paragraph 25] … … the Claimant did not work from the office the following week as she had promised. She did however continue visiting site twice a week or when needed. She would sometimes work in the morning or the evening. Evidence was provided to the Tribunal of a few emails showing that the Claimant had sent short emails in the morning or evening outside of working hours. The Claimant also gave evidence that she would often do school drop offs or pick ups and would make up for the lost time in the morning or evening. The Tribunal rejects her contention that she was overworked, the Tribunal finds that she had a flexible arrangement whereby she could do pick ups and drops offs and she would make up time outside of the working day. She was in a professional role and her job as Technical Manager of the issues relating to Lombard Wharf with its issues since 2017 was a busy one. [paragraph 28] … On 21 October 2021 Mr Power and the Claimant had a conversation. The Claimant gave evidence, that is accepted, that she was in shock during the call and she does not really remember it. Mr Power gave evidence, that is accepted, that he had spoken to Mr Weaver and Ms Foley about what to do in light of his view that the Claimant’s performance issues had continued – she had still never come into the office and her work was not being completed. Mr Power gave evidence that they decided that in order to properly support the Claimant to improve, they would ask her to come in to the office or be on site 5 days a week. In evidence to the Tribunal Mr Power said “I called the Claimant to discuss and explained my rationale – I told her that her work was not being done and that we needed to get a handle on it.” Mr Power’s oral evidence confirmed that this was him telling her, there was no discussion. When asked by the Tribunal Mr Power said that the Claimant did not challenge him during the telephone call. The Tribunal finds that on the telephone call Mr Power mandated the Claimant to come into the office 5 days per week going forward (two days in the office and three days on site) from 9 – 5.30. The Claimant took this to mean from the following Monday (25 October) and this was confirmed on Friday 22 October by Ms Foley, HR. The Tribunal finds that Mr Power knew that the Claimant would be unable to comply with the directive due to her childcare arrangements. [paragraph 35] …[13]The Tribunal concluded that: …the Claimant’s allegation that she was required to work two days or more in the office between August – October 2021 did not happen. …The reason why he asked her if she had worked over the weekend was because she had said she would, in the context that he allowed her to work flexibly to accommodate her difficulties with childcare…[para 94] … She told him “I have had issues at home” she has said “I’m really struggling with this at the moment” and yet no enquiry is made as to her welfare and whether there is anything that could help from a work perspective, instead he puts pressure on her to deliver “no excuses”. …[para 95] …When the Claimant gets mandated to come into the office 5 days a week at short notice, Mr Power knows that she cannot do this. Mr Power knows that at that time she had some child care for some days but there were other days where she did pick ups and drop offs and worked back the time earlier/later in the day...[para 96] … The case of Dobson makes it clear that the Tribunal should take judicial notice that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men. The Tribunal takes judicial notice in this case. Women, because of their childcare responsibilities, would be less likely to be able to comply with the requirement to work 5 days from the office/on site. Ms Ifeka submits that the Claimant appears to be saying that single mothers are less likely to be able to comply. The Tribunal rejects this. The Claimant is saying that women are less likely to comply and the Claimant explains her particular disadvantage was because she was a single mother without childcare in place to cover 5 days a week working 9 – 5.30 in the office which was compounded by the fact that Barratts had not yet provided the company car she was entitled to. The Tribunal concludes that women suffer group disadvantage and the Claimant suffered particular disadvantage. [101] … When the Claimant did not appear to be delivering Mr Power set weekly meetings to go through tasks. From August 2021 he knew that the Claimant had a young school age daughter, the Claimant had problems with childcare, that there were “issues at home” and she was “really struggling with this at the moment”. He was flexible with the Claimant’s hours, she could do some drop offs/pick ups and could make back the hours. However, Mr Power’s view became that she was not delivering enough in relation to Lombards Wharf. [103][14]In relation to justification the Tribunal concluded In the knowledge that the Claimant could not work on site/in the office 5 days a week from 9 – 5.30, nevertheless Mr Power and HR mandated her to do it. The Claimant’s contract stated she would be based in the office 5 days a week and work between 9 - 5.30 at least. However, in the context of the home working arrangements during covid and the introduction of a hybrid way of working for roles such as the claimant’s, a sudden move to enforce the 5 day working on site/ in office was discriminatory. There was no consideration of any other option. There was no consideration of her issues with childcare at all. Could the proper and efficient functioning of its workforce to the performance standard required have been achieved in a less discriminatory way? The Tribunal concludes that it could. Had Mr Power, with the assistance of HR, had a conversation with the Claimant about what was and was not possible in respect of childcare and with that in mind, given her reasonable notice to enable her to put childcare in place then the legitimate aim could still have been achieved but in a less discriminatory way. [104] The Claimant’s claim of indirect discrimination in relation to the requirement to work 5 days in the office/onsite therefore succeeds.[105][15]The GP records are at odds with the evidence that the Claimant gave in the liability hearing. The notes have three entries whereby the Claimant tells the GP that she is still with her partner. The Tribunal did consider whether this meant that the Claimant’s credibility as a witness of truth was undermined but concluded that it did not. The Claimant gave evidence, that is accepted, that she separated from her partner in July 2021 and that her ex partner would come and go and did not help her with childcare. The Claimant says that she told the GP that her partner was still living at home because she was concerned that her health and lack of support might cause the GP to question her ability to care for her child, although looking back the Claimant can see that this was not logical nor rational. The Tribunal accepts this evidence and accepts that at the time the Claimant was depressed, anxious and not sleeping and thinking properly.[16]The Tribunal also concludes that the new information does not affect its findings of fact and finding in liability. The Tribunal’s findings and conclusions were based on the Claimant’s issues with childcare. That does not change. The Claimant suffered particular disadvantage - she had a young school age child, had issues with childcare and was unable to comply with the PCP. Under Rule 68(2) the Judgment is therefore confirmed.
Findings of Fact
[1]The Claimant’s complaint of victimisation is dismissed upon withdrawal;[2]The Claimant’s complaints of direct sex discrimination fail and are dismissed;[3]The Claimant’s complaints of indirect sex discrimination in relation to being required to work two days or more in the office between August – October 2021, and, being required to work excessive hours outside of office hours on 7 October 2021 fail and are dismissed; and[4]The Claimant’s complaint of indirect sex discrimination in relation to being required to work five days a week in the office/on site with no prior notice from October 2021 succeeds. Case No: 2300933/2022