Mrs G Al- Naimi v Buildmaster Construction Services Ltd and Mr A Al- Naimi: 2301036/2023 and others

EMPLOYMENT TRIBUNALS

Case No 2301036/2023, 2306336/2023, 2304499/2023

Between

Mrs G Al- NaimiClaimant

Buildmaster Construction Services Ltd and Mr A Al- NaimiRespondent

Before

Employment Judge Mclaren

Members

Mrs M Foster Norman

Ms H Bharadia

Mr. S John (instructed by Counsel) for claimant

Ms. M Duncan-Brown (instructed by Counsel) for respondent

Date 23 July 2024

JUDGMENT

Under the provisions of Rule 69, the Judgment dated 23 July 2024 is corrected by adding an additional case number as set out above in bold. The unanimous decision of the Employment Tribunal is as follows: –

[1]The claim for unlawful deductions from wages has been conceded by the respondent. The claimant is awarded monies in respect of deductions from 1 June to 25 September 2023. This totals £3628.58 (gross).

[2]The claim for failure to provide a statement of particulars of employment as required by section 1 of the Employment Rights Act 1996 having been conceded by the respondent, the claimant is awarded a sum equivalent to 2 weeks’ pay, that is £1,017.70 (gross)

[3]The claim for holiday pay for the holiday year ending on 24 September 2023 having been conceded by the respondent, the claimant is awarded £642.46 (gross).

[4]The claim for accrued untaken holiday succeeds and the claimant is awarded £ 2215.40 (gross).

[5]The claimant was unfairly dismissed. Her claim for constructive unfair dismissal succeeds. There was no fair reason for dismissal. The basic and compensatory award will be determined at a separate remedies hearing. Case No:2301036/2023 & 2306336/2023 & 2304499/2023

[6]The claim for wrongful dismissal succeeds. The claimant was not paid in lieu of notice following her resignation. Based on her length of service she’s entitled to 12 weeks’ pay. The sum will be determined at a remedies hearing.

[7]The claim for direct discrimination under section 13 of the Equality Act 2010 succeeds in relation to a claim for ongoing deductions from pay after 26 August 2022, the complaints relating to suspension and investigation and complaints relating to failure to address grievances. Employment Judge Mclaren Date: 9 September 2024 Notes Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision. EMPLOYMENT TRIBUNALS Claimant: Mrs Ghada Al- Naimi Respondents:(1) Buildmaster Construction Services Limited

(2) Mr Ahmad Al- Naimi Heard at: London South. On: 15-19/07/24 Before:

REASONS

Background

[1]We heard evidence from the claimant. For the respondent we heard evidence from the second respondent. The claimant was consistent in her evidence throughout. The answers she gave in cross examination corresponded with those in her witness statement and were supported by documentary evidence.

[2]The second respondent was less consistent in his evidence. B way of example it had been conceded by the respondent that there was no written contract for the claimant, and this had been the position found by two previous employment judges. Despite this, the respondent now said that in fact there had been a contract and the claimant had destroyed it. He said that he knew that she had a contract sometime in 2016 or 2017. He continued to assert that the claimant’s wages fluctuated, despite the fact that the pay slips do not support this and that was not the finding of two previous Employment Judges. Given the inconsistency we find that the second respondent was a less credible witness than the claimant and, where there was a discrepancy in their evidence, we generally preferred the account of the claimant.

[3]We were provided with a bundle of 320 pages. We were also assisted by helpful submissions from both parties expanding on written submissions. The findings of fact set out below were reached by the tribunal on a balance of probabilities, having considered all the evidence given by the witnesses during the hearing, including the documents referred to by them, and taking into account the tribunal’s assessment of the witness evidence.

[4]Only findings of fact relevant to the issues, and those necessary for the tribunal to determine, have been referred to in this judgement. It would not be necessary, and neither would it be proportionate, to determine each and every fact in dispute. If the tribunal has not referred to every document it has read and/or was taken to in the findings below, that does not mean it was not considered if it was referred to in the witness statements/evidence. Complaints/Issues

[5]The claimant is making the following complaints, direct discrimination because of marital status (including one allegation against the second respondent); unlawful deduction of wages; constructive unfair dismissal; wrongful dismissal; failure to provide written statement of employment particulars; and holiday pay.

[6]The issues had been noted at a previous case management hearing. We identified that a number of additions were required, and these were agreed by the parties. Throughout the hearing we questioned whether the claimant could bring a complaint before this tribunal about what was said to have been the second respondent’s conduct and words in a previous employment tribunal hearing. In closing submissions these claims were withdrawn. Some matters were conceded by the respondent during the hearing, but we have left these in the issues list. 1. Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 15 October 2023 may not have been brought in time.

1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus, early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable. The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? 1. Direct discrimination: Marriage – S8 and 13 (4) EQA 2.1.Did the respondent treat the Claimant less favourably than another because she was married? 2.2 If so, what was the unfavourable treatment? The Claimant avers it is all of the following in respect of the first respondent and only allegation 2.2.7 in respect of the second respondent:

2.2.1 Deductions and delays to the payment of the Claimant’s wages resulting in two employment tribunal awards (from October 2021 to September 2023).

2.2.2 Being suspended from work on 17th September 2022 on false allegations of gross misconduct and the suspension continuing for over a year.

2.2.3 The investigation process, or lack of it, from suspension on 17 September 2022 to resignation on 25 September 2023.No evidence provided in support of the allegations.

2.2.4 Failure to correctly address the Claimant’s grievance of 5th December 2022;

2.2.5 The Respondent reporting the Claimant to the police on 4 February 2023. 2.2.7 Continued deductions from the Claimant’s wages from 1 June 2023 to the date of dismissal (25 September 2023). 2.3 Who is the correct comparator? The Claimant relies on a hypothetical comparator of an unmarried person/or not in civil partnership in the same material circumstances. 3. Remedy for discrimination

3.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

3.2 What financial losses has the discrimination caused the claimant?

3.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

3.4 If not, for what period of loss should the claimant be compensated?

3.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

3.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

3.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

3.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

3.9 Did the respondent unreasonably fail to comply with it by failing to properly inform the claimant of the misconduct (paragraph 9 of the ACAS code. Keeping the suspension period as brief as possible and keeping it under review (paragraph 8 of the ACAS code). Arranging a formal meeting in respect of the grievances without unreasonable delay (paragraph 33 of the ACAS code).

3.10 If so, is it just and equitable to increase or decrease any award payable to the claimant?

3.11 By what proportion, up to 25%?

3.12 Should interest be awarded? How much?

3.13 Should the award be ‘grossed up’ to account for any tax liabilities attracted? 4.: Unlawful deduction of Wages S13 Employment Rights Act 1996:

4.1 Was the Claimant entitled to £2,400 gross per month as “wages” within the meaning of S27 Employment Rights Act 1996?

4.2 If so, did the Respondent fail to make correct payment to the Claimant for her wages for the period of 1st June 2023 to 25th September 2023?

4.3 If so, how much is owed to the Claimant?

4.4 Was such deduction required, or authorised by virtue of a statutory provision or a relevant provision of the Claimant’s employment contract, or did the Claimant previously provide her written consent to the making of the deduction? 5.: Constructive unfair dismissal

5.1 Did the Claimant resign in circumstances in which she is entitled to treat herself as having been constructively dismissed? (ERA 1996, s 95(1)(c), Western Excavating v Sharp

[1978] IRLR 27

) In particular:

5.2 was there a fundamental breach of the employment contract by the Respondent? The Claimant relies on the following:5.2.1 The Claimant’s ongoing and unjustified suspension since 17th September 2022 on false grounds;

5.2.2 Improper investigation and procedure related to the suspension;

5.2.3 Reporting the Claimant to the police in March 2023 on false grounds; 5.2.5 Constant barrage of unreasonable e-mails from July 2023 with unfounded contents and threats of gross misconduct and redundancy; 5.2.6 Failure to deal with any of the Claimant’s grievances including the total rejection of the Claimant’s grievance on 1st September 2023; 5.2.7 Deductions and delay to payment of the Claimant’s wages resulting in two Tribunal awards; 5.2.8 Complete non-payment of wages due 31st August 2023 (final straw).

5.3 If so, did the Claimant resign in response to the breach of her contract of employment?

5.4 Did the Claimant waive any breach and affirm the contract? 6. Remedy for unfair dismissal

6.1 What basic award is payable to the claimant, if any?

6.2 If there is a compensatory award, how much should it be? The Tribunal will decide:

6.3 What financial losses has the dismissal caused the claimant?

6.4 Has the claimant taken reasonable steps to replace their lost earnings, for example, by looking for another job?

6.5 If not, for what period of loss should the claimant be compensated?

6.6 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

6.7 If so, should the claimant’s compensation be reduced? By how much?

6.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

6.9 Did the respondent unreasonably fail to comply with it by failing to by failing to properly inform the claimant of the misconduct (paragraph 9 of the ACAS code. Keeping the suspension period as brief as possible and keeping it under review (paragraph 8 of the ACAS code). Arranging a formal meeting in respect of the grievances without unreasonable delay (paragraph 33 of the ACAS code).

6.10 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

6.11 Does the statutory cap apply?

[7]Wrongful dismissal7.1 What was the Claimant’s notice period? (contractual/statutory)

7.2 Was the Claimant dismissed without notice?

7.3 If so, was the Respondent entitled to dismiss the Claimant without notice? 8.: Failure to provide written statement of employment particulars

8.1 The Respondent accepts the respondent failed to provide the Claimant with a written statement of employment.

8.2 Should the Tribunal make an award for the s1 ERA 1996 breach? If so, how many weeks wages should be awarded? 9.Holiday pay

9.1 What was the Claimant’s holiday entitlement?

9.2 On the termination of her employment, how many days of leave had been accrued but untaken?

9.3 Has the Claimant received this payment? If not, was the Respondent entitled to make such deductions? The respondent’s application for admission of additional documents 7. The respondent had produced an additional bundle of 159 pages and sought to have these admitted. The documents fell into three categories. The first related to correspondence describing the family court proceedings, including documents from the family Court itself. These were said to be relevant because the respondent’s position is that the reason the claimant was not paid her wages was related to decisions made and figures given in this arena. It was accepted that the terms of the non-molestation order specify material about the family court proceedings could not be published and specifically copies of the applicant’s bank statements could not be provided without her say.

[8]Counsel for the respondent submitted that the Employment Tribunal are used to dealing with highly confidential information and that her reading of the Order was that matters could be referred to provided they were not put in the public domain. The tribunal could address that by making a restricted reporting order. In her submission it would be prejudicial to the respondent not to permit this evidence in.

[9]The second category of documents related to the financial affairs of the company. Again, counsel for the respondent submitted it was the respondent’s case that the financial difficulties the company was facing, as evidenced by the company accounts, bank accounts and the second respondent’s payslips showing that he took a pay cut, would evidence his motive. It was not discrimination that made him fail to pay the claimant’s wages, but his financial circumstances. The third category of documents again went to the second respondent’s motive, on this occasion in pursuing the suspension and disciplinary investigation. This was largely copies of what was said to be forged cheques.

[10]In terms of the lateness of production of these documents it was submitted that they had been sent to the claimant’s lawyers previously and they had not included them in the bundle as they did not consider them to be relevant. It appears that this was not a point ever raised by the respondents’ solicitors and they simply served the additional documents they wanted to see included on Friday. It was submitted that it was within the overriding objective to allow these in, despite the lateness, because it would prejudice the respondent if they were not allowed as they went to his credibility for the motivation he was relying on.

[11]The claimant objected and Counsel set out reasons in a written note. “R has sought at the 11th hour (afternoon of 12.7.24, the day before final hearing) to lodge and serve a further bundle of documents running to 159 pages. C solicitors have objected.a. Firstly, disclosure was originally ordered to take place by 20 November 2023 [109] and statements based on those documents to be exchanged by 12 February 2024. All of the issues in this case have been live and known of since the pleadings in August and November 2023, with CMOs in October 2023 and January 2024 setting the issues in a way which has not materially changed since. Both these CMOs required R to prepare the bundle, yet R/their representatives did not do so despite chasing from C solicitors.

b. There is nothing in the new documents which could not have been anticipated might be relevant at an early stage. Those documents are not recent. There is no conceivable excuse for such tardiness and very late disclosure on the eve of final hearing and none has been provided.

c. Not only have R not paid the unlawful deductions ordered of them on 11 October 2022 [132] and 21 June 2023 [138] totalling some £21,750 (plus accumulating interest), but R/their representatives have been guilty of previous delays and non-compliance with court orders and directions and an unless order was it seems only not acceded to on 19 June 2024 [121] on the basis that a new representative was on board (albeit a risk of wasted costs order was given to them then in respect of further breaches). It was against that backdrop that a further date was ordered [122] for R to send its documents to C by 21 June 2024 (3 weeks ago). That should have been a hard deadline. Consequently, the bundle was produced by C as ordered, by 28 June 2024 and statements exchanged by 2 July 2024 [123].

d. Perhaps most importantly, the bundle contains documents (C’s personal bank accounts) which were specified by non-molestation order of DJ Smart on 11 June 2024, to not be disclosed or used, and breach of which is an arrestable criminal offence. C solicitors (DLG Legal) have written to R/the Tribunal on 12 July 2024setting out this position. R (and possibly his solicitors) is thereby also guilty of a contempt of court.

e. If any non-embargoed documents are permitted at this very late stage, then it is likely to lead to delay and costs. C and her representatives were entitled to have at least 3 weeks’ notice of documents and incorporate them in a considered witness statement. The proposed bundle is detailed and of volume. I have not been able to take instructions on them from C”

[12]Counsel for the claimant expanded on these written submissions, reiterating that in essence if the documents were important, they should have been submitted earlier, if they were not important, they did not need to be submitted at all. It was the respondent’s fault that led to the situation and the claimant should not be prejudiced by that. He was now instructed that the claimant, having waited so long for her hearing, wished to proceed and therefore he would not be applying for an adjournment if the documents were allowed in. Conclusion on the additional documents

[13]We considered each category of documents separately. We are not convinced that the terms of the non-molestation order allow the publication of material if steps can be taken to ensure that is not in the public domain. In our reading that is not what it says. We do not consider that we have authority to vary the Order of a District Judge by allowing documents to be shown by limiting the right to report on them. On that basis, the application to allow documents that refer to the matrimonial proceedings is refused.

[14]We considered the financial documents that the respondent was seeking to introduce to evidence the company’s inability to pay the claimant. We reminded ourselves of the overriding objective and the requirement to deal with the case fairly and justly. Our starting point was that we did not consider these documents would assist the Tribunal in reaching its conclusion. They were not a complete picture. The accounts produced were unaudited, the payroll information was for the second respondent only and did not indicate what had happened to any other staff. It would be difficult for us to interrogate transactions on a bank account to gain any sensible understanding of the financial situation of the company. We simply cannot know whether there are other bank accounts, whether dividends were taken out or whether any other payments were made by the company which could be shown in other documents. To understand this would require a more extensive disclosure exercise.

[15]Excluding the documents would ensure the parties remained on an equal footing. It would deal with the case in a way which is proportionate to its complexity and the importance of the issues. It would avoid delays and save expense. As we do not consider they will take matters any further forward and for all the other reasons set out above, this application was refused.

[16]Considering the documentation that went to the second respondent’s belief that the claimant had carried out conduct which made it appropriate that she was suspended and/or investigated, again we reach the same conclusion. We do not believe that the evidence put before us would assist. We would not be able to carry out any forensic analysis of signatures. The respondent has already included in the bundle the complaint that was raised to the police which is evidence of the respondent’s belief. The fact of that belief is already in his witness statement. These additional documents would not add to the position in any meaningful way.

[17]Excluding these documents would ensure the parties remained on an equal footing. It would deal with the case in a way which is proportionate to its complexity and the importance of the issues. It would avoid delays and save expense. As we do not consider they will take matters any further forward and all the other reasons set out above, this application was refused. Application for recusal and postponement

Relevant Law

[18]On the morning of the second day of this five-day hearing the respondent’s representative made an application that the panel recuse itself for bias and further, as a separate application, that in any event the case should be adjourned and relisted.

[19]The second respondent felt very strongly that the introduction of the nonmolestation order to the tribunal had prejudiced the panel against him. He felt this was evident in the fact that his application for additional documents had been refused. He illustrated this by stating that for example the panel had refused to accept accounts as they were unaudited, yet HMRC would have raised any questions with such accounts had there been an issue. He felt that this indicated the tribunal’s negative view of him. On this basis the panel was asked to recuse itself.

[20]As part of the application counsel for the respondent also took issue with the way in which the claimant’s representatives had produced a copy of the nonmolestation order. She suggested that the potential breach of an Order could have been pointed out in advance. She also suggested that the introduction of this document had been very late. The claimant’s representative confirmed that they had in fact raised the point before writing the letter. Counsel for the respondent was without instructions on this point. In our discussion the respondent accepted that the claimant’s side could not produce the document until the respondent side had apparently breached the order. As that did not happen until Friday evening the claimant’s side could not produce it before Monday.

[21]A separate application was made that in any event the case be adjourned. We were advised that there were two hearings coming up before the family court. These were in July and September. It was the respondent’s position that at these he was seeking to have the non-molestation order lifted and that was highly likely to succeed. He would also, in the September hearing, seek to get permission to disclose documents that are part of the family court proceedings to the employment tribunal. Counsel stated that some of these documents, probably some 10 to 15 pages, were relevant to show that the second respondent was making payments to his wife as part of the matrimonial proceedings. That therefore went to his motive as to why he did not think it fair also to have to pay her monies as an employee. That would provide documentary support to his evidence that he was not acting in a discriminatory manner in withholding her pay.

[22]The claimant strongly objected to this application. Counsel for the claimant submitted that there was no issue of bias. The employment tribunal were an experienced panel and were well used to turning its mind away from matters that were not to be considered. The decision given in relation to the documents did not go into the terms of the non-molestation order beyond the words that related to the production of documents. There was no basis for such an application.

[23]There was also no basis to adjourn the hearing to allow additional disclosure. The claimant did not agree that the family court hearings coming up were going to address the non-molestation order. The matrimonial proceedings have been going on since at least 2022. There have been three case management hearings on this employment matter. The respondent’s side have been aware for a number of years about the issues in the case and were able to determine the relevance of these documents or not significantly earlier. They have not done so. It would not be proportionate or in accordance with the overriding objective to be even-handed between the parties and to avoid delay and expense for us to now grant this adjournment.

Relevant law

[24]The leading case on the test for bias is the House of Lords’ judgment in Porter v Magill 2002 2 AC 357, HL. Impartiality requires not only that the court or tribunal be truly independent and free from actual bias but also that it must be free from apparent bias. In order to establish whether there was apparent bias in any case, the court or tribunal must consider whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.

[25]This hypothetical observer would be apprised of all the relevant circumstances, including matters not necessarily known to the parties at the time of the hearing, as well as the employment judge’s or member’s explanations. Furthermore, the hypothetical observer need not apprehend that bias actually existed, nor even that it was ‘likely’ or ‘probable’, only that there was a risk that was more than minimal (R v Inner West London Coroner ex parte Dallaglio and anor

1994 4 All ER 139

, CA).

[26]The overriding objective requires us to deal with cases fairly and justly which includes as far as practicable ensuring the parties on equal footing; dealing with cases in ways which are proportionate to the complexity importance of the issue; avoid an unnecessary formality in seeking flexibility in the proceedings; avoiding delay, as far as compatible with the proper consideration of the issue; and saving expense.

Conclusions

[27]We have considered very carefully whether or not a fair-minded and wellinformed observer could conclude there was a real possibility of even a minimal bias from the panel having been made aware of an Order in the matrimonial proceedings.

[28]We conclude that a well-informed observer would be aware that this is an experienced employment tribunal panel. The employment tribunal is used to excluding matters from its consideration where not relevant. We have considered the example that the second respondent referred to, that is the non-audited accounts. In rechecking our reasons for refusing to include the financial documents (including the accounts) it was predominantly that they were not going to assist us. We did refer to the accounts being unaudited in the same way we referred to only one employee’s wage slips being shown and difficulty with interrogating a bank statement. The information was not a complete picture. The reference to unaudited accounts was not because we had any views on their integrity. We are satisfied that this reference to the accounts as part of a number of financial documents which we considered did not show a complete picture, did not show any bias against the second respondent and that no fair-minded observer would find the possibility of even minimum bias in the context of the discussion.

[29]We do not therefore think that the grounds for recusal are made out and the panel will continue to hear the case.

[30]In terms of postponement, we have considered the need to be even handed between the parties and accept that the respondent feels that he will be prejudiced by inability to produce certain documents.

[31]The respondent has been represented throughout by Croner’s who are wellknown and very experienced in representing parties in employment matters. It is reasonable to assume that they should have understood the relevance of any documents and therefore have made applications to the family court, if necessary, at some point during the time it has taken to get this matter to a final hearing before the employment tribunal. We would have expected them to at least have made an application for a stay of these proceedings if it was necessary to wait for the family court to determine things to allow a fair hearing of this matter before the employment tribunal. They have not done so.

[32]The documents are said to be relevant to motive. This is detailed in the second respondent’s witness statement. It was submitted that a tribunal gives weight to documents and therefore it was prejudicial not be able to have documents supported part of the witness statement.

[33]We understand that the point being made is that the second respondent was obliged to make various payments to the claimant by the family court. To that extent there are already documents in the bundle that address this. In answers to some of the claimant’s emails, in particular on 30 August 2023, the second respondent refers to the fact that he has to pay mortgage and rent plus all utilities. There is also reference to the financial situation. The claimant’s emails also refer, particularly in her email of 4 September, to all the money that she is owed, and to the second respondent having a hundred percent failure rate. We understand this to refer to her own success in matrimonial proceedings We are satisfied that there are sufficient documents already in the bundle that the second respondent can point to as evidence of financial settlements being made in the family court.

[34]We have considered the need to deal with cases in ways which are proportionate. We find that having spent 1.5 days of tribunal time on this matter already, listing it for a further five days is not proportionate to the complexity of the matters. In considering delay, having checked with listings, the earliest additional five days could be given would be from 13 October 2025 onwards. A postponement would incur considerable delay.

[35]We are satisfied there is evidence in the bundle that the respondent can already rely on. This, together with the significant delay that would be incurred if this application were granted means that the request for a postponement is refused. Application to amend the response

[36]During cross-examination of the claimant on the third day of this hearing the respondent’s representative raised questions which suggested that she was pursuing the legal point that the claimant had affirmed the breach/waived the breach of contract by her delay in reacting to the failure to pay her wages in August.

[37]Counsel for the claimant identified that in his view this was not pleaded. After a short break we asked the parties to address us on whether the issue of delay/affirmation was in the pleadings. We set out below a summary of the arguments.

[38]The claim form refers to affirmation/delay at paragraph 32 of the pleadings. This is raised on the basis that “insofar as the respondent may argue the claimant will rely on….” The respondent’s reply refers at paragraph 2 to a denial of all the claimant’s allegations. There is no other express reference to delay or affirmation.

[39]It was respondent’s position that the generic denial of the claimant’s allegations was sufficient to plead the point. It was the claimant’s position that it is the respondent’s obligation to positively raise this potential defence if it seeks to rely on it. It had not done so and the generic denial is insufficient.

[40]We considered the point and agreed with the claimant. We read the claimant’s pleading as raising a hypothetical argument should a point be raised. We read the generic defence paragraph relied on as denying “allegations”. We take that to be factual matters, not matters of law. We do not think that a reading of the words at paragraph 2 includes a denial of a possible legal defence the claimant is raising if the respondent chooses to run a line of argument. If we are wrong on that we also consider that there was a positive duty on the respondent to raise a question of delay if it wished to rely on that point and it had not done so.

[41]We therefore agreed to release the claimant from her witness oath to allow her to give instructions to her representative on the respondent’s application.

[42]The respondent’s application was as follows. We should consider all the circumstances, in particular the balance of injustice. The respondent would suffer prejudice to a greater extent than the claimant if it was not permitted to rely on this defence. It was a narrow issue between certain defined dates and the facts of the matter already in the papers. While timing was something we should consider, we should also be mindful of the overriding objective and the interests of justice. While there would be a level of inconvenience because the claimant will need to give evidence in chief orally it was on a narrow issue. It was the respondent’s submission that allowing this defence to be made was akin to relabelling.

[43]The claimant’s objection was as follows. It was submitted that this is not a minor technical amendment. It raised a defence of waiver. On the balance of hardship if it was a good point and respondent would be as prejudiced as it is saying, then we would have expected to see this point raised in the pleadings. Certainly, you would expect to see it raised much earlier than this and not in the middle of cross-examination of the claimant. This is in fact an afterthought and not an important part of the defence.

[44]It was submitted that there would be hardship for the claimant. Counsel could not currently take instructions from her. He would have to lead evidence in chief. There may be more documents that could have been provided had this point been raised. The application should also be considered in the context of the existing delays and time management. We had already lost half a day because the respondent had not provided bundles. We lost two hours for the respondent’s application for a postponement which was also an afterthought. The law relating to amendment of claims

[45]The power to amend is a judicial discretion to be exercised “in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions” (Selkent Bus Co v Moore

[1996] IRLR 661

[46]We are reminded that, whenever the discretion to grant an amendment was invoked, a Tribunal should consider all the circumstances, including the nature of the amendment, the applicability of time limits and the timing and manner of the application, before balancing the hardship and injustice of allowing the amendment against the injustice and hardship of refusing it. The circumstances to be taken into account will, however, vary depending on the facts.

[47]We also take into account and consider the overriding objective and the factors that should be considered in that context. Decision on amendment application

[48]Having listened to all the submissions of the parties and applied the relevant law, we have accepted the respondent’s application and allowed the amendment. The matters we considered are as follows.

[49]We considered that the amendment was not a minor one, it was not akin to relabeling but was a significant amendment. The application was made very late. This was despite the fact that the respondent has been legally represented throughout and the pleadings were drafted by legal representatives. There is no good reason why it could not have been raised earlier either in the pleadings or at least prior to evidence being given in this case.

[50]The claimant has not had sight or knowledge of the fact the respondent was going to seek to rely on this defence. She has therefore been ambushed by this point. She has not been able to produce a witness statement. Evidence will have to be provided through examination in chief. We also can’t be completely satisfied that all relevant documents that go to the point have been provided.

[51]Allowing the amendment may jeopardise the conclusion of this hearing in the time allocated and therefore potentially add cost and delay to the hearing. These factors would point us to a decision to refuse the amendment.

[52]On the other side of the equation, in terms of the delays, we have already reached the point where it is highly unlikely that we will be able to address remedy. That is because of delays accorded by the respondents’ failure to produce bundles and earlier applications. We consider that there is still sufficient time for us to conclude the evidence and to deliver a judgment, even allowing for this extra evidence, and this in itself will not therefore be the reason that extra time and resources may be required for a remedy hearing. That point has already been reached.

[53]We are satisfied that the claimant can be given an appropriate time to give instructions to her legal representative on this point. We can take a flexible and pragmatic approach to the way in which she gives her evidence on this point to avoid any disadvantage to her. While as noted we can’t be satisfied that all documents that might be disclosed have been disclosed, looking at those emails that are in the bundle there is a clear chronology of events without any apparent gap. On balance we’re therefore satisfied that there is at least sufficient documentation in the bundle for both sides to rely on. It is a discreet matter that can be readily dealt with in a fairly short order.

[54]Finally, on balance, while the claimant is a course prejudiced by the introduction of a new line of defence, we conclude that the hardship of the refusal weighs more heavily on the respondent if it is not permitted to make this amendment. It is a discrete matter that can be readily dealt with in fairly short order. Not doing so deprives the respondent of the potential defence to the constructive unfair dismissal claim.

[55]For all these reasons, looking at matters in the round, we have concluded that it is in the interests of justice and in accordance with the overriding objective to allow the amendment. Finding of Facts Date of employment

[56]The respondent is a small business with an office in New Malden, Surrey, that deals in various types of building work, such as renovations and new buildings. The claimant is the wife of Ahmad Al-Naimi, the director of the first respondent and the named second respondent. Financial remedies have been determined, but we are told that the couple remain officially married, pending the issuance of the decree absolute.

[57]The claimant was employed by the respondent, as a company secretary. She described her duties as ad hoc tasks including HR and staff issues as well as general administration. In her claim form she says that this was from 1 June 2016. The respondent states that she was engaged only from 2002. We were taken to a document from Companies’ House which indicated that the claimant had been appointed as a secretary to the company on 10 July 2002. The claimant’s witness statement refers to this date.

[58]The respondent disputed this and said that she had not started working for the company until 2016. While he accepted that she was shown as a company secretary from 2002 he explained that he had set the company up in case it was needed. He did not really begin to trade for some 2 to 3 years after that. During this time the claimant was fully occupied in raising the couple’s three children and did nothing for the business. He pointed out that she had not disclosed any evidence that she had been paid by the business during this time.

[59]The second respondent confirmed that in fact he had perhaps given her some tasks, for example research projects for clients and that was her job in the business. Later on, she also dealt with HR and other admin matters. Nonetheless, he was adamant that the claimant was not working in the business before 2016.

[60]We were taken to the report prepared by the Croner’s investigator. The second respondent confirmed that he had seen this at the time it was produced. That specifies that the date the claimant started was 2002. We were also taken to the transcript of the conversation between the claimant and the investigator when she is not asked and does not volunteer the date of her employment. It was put to the second respondent that this information must have come from him. He denied it and also said that he had not noticed this date in the report at the time. On the balance of probabilities, we find the information did come from the second respondent and we therefore find that the claimant’s employment began on 10 July 2002. Wages (issues 2.2.1, 2.2.7, 4, 5.2.7 and 5.2.8)

[61]The claimant told us she was paid £2,400 a month until October 2021 when her wages were unilaterally reduced to £1,050. It was her case that this occurred at the same time as she resumed divorce proceedings. There is a disagreement about the date on which proceedings had commenced and been restarted. The claimant told us that divorce proceedings had originally been started in October 2020 but had been put on hold for a period of reconciliation. They restarted again in October 2021. The reduction began in October 2021, and it continued until March 2022 when her wages were increased to £1,400. It was agreed that on 26 August 2022 the claimant received an order in her favour regarding Maintenance Pending Suit. (“MPS”). She believes that the money was paid on or around 15 September 2022.

[62]The respondent told us that the proceedings were restarted in February or March 2022. There was therefore no link between these proceedings and the reduction in wages.

[63]On the balance of probabilities, we prefer the claimant’s evidence to the respondent on this point. She has been very clear on her dates throughout the period, whereas the second respondent found it difficult to recall matters with a great deal of precision. We find that the divorce proceedings were restarted in October 2021and the MPS was made at the end of August 2022.

[64]The claimant brought proceedings before the Employment Tribunal for unlawful deductions from wages and was awarded £9,750. The judgment in case number 2301785/2022 specified that wages of £2,400 per month gross were properly payable to the claimant. From October 2021 to May 2022, she received less than was properly payable and the reason for those deductions does not fall within section 13 of the Employment Rights Act 1996 as set out above.

[65]A second claim for unlawful deductions was brought under case number 2300236/2023 for deductions up to May 2023. A finding of fact was made that the total amount the claimant should have received as salary during each month of the period in question was £2,400. In fact, she received £1,400 in each relevant pay period, leaving a shortfall of £1,000 per month and totaling a £12,000 shortfall over a twelve-month period (June 2022 to May 2023). The respondent did not seek to deny that these were the payments made and that £2,400 had been the salary which had previously been paid.

[66]The respondent appealed both these decisions and the EAT upheld the employment tribunal in both cases. The claimant now brings a further claim for unpaid wages for the period June 2023 to her resignation in September 2023.In August she was paid no wages at all.

[67]The previous employment tribunal decisions mean that the respondent cannot rely on arguments in relation to unlawful deductions that it has already run. We must find that the claimant was entitled to £2,400 per month and that she had not agreed to any variation to her pay. Any issues in a matrimonial dispute are not relevant to this claim. The respondent accepts this and conceded the unlawful deductions claim when asked by us about this on the second day of the hearing. Issue four was therefore conceded.

[68]While the unpaid wages are not, therefore, disputed, the claimant has also relied on the deductions and delays to her payment to support her claim of direct discrimination and for constructive unfair dismissal. The complaint is that deductions and delays to her payment resulting in the two employment tribunal awards from October 2021 to September 2023 and the continued deductions from wages from 1 June 2023 to the date of dismissal were acts of discrimination and a breach of contract which formed part of a chain of events that led her to resign. The respondent does contest these claims.

[69]The second respondent was adamant that his motive for the deductions in the claimant’s wages was not discrimination. It was the second respondent’s evidence that the company had made losses in the last two years. It had never really recovered from Covid. It was because of this economic downturn in the affairs of the company that both the claimant and his own wages were reduced. The claimant was asked whether she was aware of the company’s finances, particularly because she was a part owner in the business as well as being an employee. She stated that it was difficult to get financial information from the second respondent and so she was not generally aware of the financial picture until she was able to get information via the court orders in the family court. She did not accept that the company was in any financial difficulty.

[70]In his witness statement the second respondent referred to the company’s low income and losses, stating that to cover expenses he had to take out a director’s loan of £430,000. It was the claimant’s understanding that this was a loan from the company itself. In other words, the second respondent had taken money from the company’s accounts to pay to himself. This indicated that the company had more than sufficient money. The second respondent explained that while this was money he had loaned himself from the company, it still had to be repaid and there was some interest payable as well. There was also some tax payable on it.

[71]While we were not provided with much evidence as to the company’s financial affairs, we accept the general proposition that many businesses suffered a downturn during Covid. We accept that many businesses also found it difficult for matters to return to pre pandemic levels. We accept that the company may well have had some financial difficulties. We note for example that the claimant was placed on furlough during the pandemic.

[72]The second respondent also said that that as the claimant is his wife, both as part of the family court settlement and in additional payments, he covered various other expenses on her behalf, such as mortgage payments, utilities, car hire, council fees, and building management fees which total to approximately £6,600/ month net, equivalent to £11,000/ month gross. He believed that it was reasonable to look at the payments made to her in the round and not therefore to give her full wages.

[73]The second respondent told us that it was both the financial constraints of the company and the fact that he was paying the claimant other sums which were the reasons why he reduced her wages. It was also the reason why he continued to make these deductions. It was not for discriminatory reasons.

[74]The claimant was asked if she understood why the second respondent might feel justified to look at the payments made to her in the round and therefore to balance things out by reducing her wages. The claimant was clear that she did not understand this position. As far as she was concerned the second respondent was simply continuing, albeit by way of Order, to pay her the sums for the property and the running of that property that he had always paid. Her wages were needed by her to put food on the table for herself and her children. She believed the failure to pay her full wages was connected to the matrimonial dispute and in particular the MPS and was discrimination.

[75]The second respondent has made it clear throughout that he did not believe the claimant should have money from both sources and we find that the deductions which began in October 2021 were coincidental with the restarting of the divorce proceedings and were made by the respondent because of the matrimonial dispute. In giving his evidence, the second respondent commented on a number of occasions that he felt very hurt by the separation and divorce proceedings, in particular we find that he was hurt and upset by the fact that he never occupied the home that the couple had been renovating. We also find that he was angry about the amount of money that he was paying to the claimant by way of the MPS.

[76]While there may have been some financial restraints in the company, on the balance of probabilities given the timing of the deductions and the second respondent’s level of anger about what he had to pay the claimant we find that there is a clear link in time between the date on which divorce proceedings were resumed and the first deduction of wages were made. This was before the MPS was in place. We find therefore that the deductions were originally made because of the breakup of the relationship. The reason they continued was specifically because of the obligation to make maintenance payments to the claimant by Order of the family court.

[77]As for the delay to the payment of her wages after the two employment tribunal awards, the respondent relied on the fact that the decisions were being appealed. The claimant accepted that as the respondent had appealed against the 2 decisions that was why he did not pay the wages owed before the appeal was resolved. The appeal was concluded on 13 June 2024. We are told the amounts were paid the day before this hearing on 14 July 2024. We accept that it is general practice that respondents do not pay awards when they are repealing those decisions. We find that failure to pay the awarded backpay was because the matter was still being litigated. While the original source of deductions is linked to the matrimonial dispute and it is only because of that dispute that they happened, we find that the delay in paying the tribunal awards is not itself linked to the matrimonial dispute. It was a respondent exercising its legitimate right to appeal.

[78]In August 2023, the claimant was not paid at all. She relies on this as her final straw in her constructive dismissal claim. It was not disputed that she was not paid her wages for August. The second respondent indicated that this was because of the company’s financial position. In an email of 30 August, he explained that he had no money in the company to pay any wages that month until he received more funds.

[79]The bundle contains a contract that was signed on 30 October 2023 for a considerable sum. The second respondent confirmed that on the back of this contract he was able to meet his financial obligations once more and to rehire an individual to assist in the office, the claimant having resigned by that time. He explained that he had been successful in this tender as one of five companies seeking to obtain that work. He explained that prior to winning this contract, the company had been in difficulties.

[80]On the balance of probabilities given what we have already said as to our understanding of the way that pandemic generally affected businesses, we accept that the company did have some financial difficulties by August 2023. We find that reducing the claimant’s pay to zero at this point was not wholly motivated because of the obligation to pay maintenance but was in part for financial reasons. We find, however, that the ongoing obligation to pay the claimant was also in his mind. The MPS obligation to pay maintenance was a contributing factor. Written terms of employment (issue 8)

[81]It is conceded that the claimant did not have written particulars of employment. In his witness statement the second respondent said that he believed that the claimant destroyed the copies of the contracts, including her own, but she knew the working arrangements as they did not change throughout her employment. The claimant was responsible for managing employment contracts.

[82]In pleadings, however, it was also set out that the claimant was not provided with a section 1 statement because there was no intention of creating legal commercial relationship between the parties. These two statements both made by the respondent one that she had a contract and destroyed it and one that there was never any intention to give a contract, contradict each other.

[83]We accept that the latter was the position. On the balance of probabilities, we do not accept that the claimant has destroyed her contract. We find it more likely than not that there was no contract which is indeed the on the record position conceded by the respondent.

[84]This is a small company with a limited number of employees even when times are going well. It has limited HR resources. We accept that the reason no contract was provided was because the second respondent did not consider it was required between husband-and-wife and part owner, even where the wife was also an employee. The claimant’s suspension (issues 2.2.2 and5.2.1 ) and the investigation (issues 2.2.3 and

5.2.2 )

[85]The complaints made are that the claimant was unjustifiably suspended from work on 17 September on false allegations and that continued for over a year. She also complains that there was an improper investigation or a lack of investigation and failing of procedure related to the suspension. The suspension letter

[86]On 17 September 2022 the claimant was sent a letter suspending her from work pending investigations into using the company Barclay card and company cheque book which only the company director was entitled to use. No other details of the conduct complained of were given. This was the day after the first MPS payment was made.

[87]The second respondent explained that he had received his Barclaycard statement in June showing various payments in May made on the company credit card. These were made by the claimant. He was also contacted by the bank to query some cheques which he said did not have his signature. He believed that the claimant had used the company credit card to make payments for things for the house that the couple had previously renovated together. He also believed she had used cheques for the same purpose, he suggested that some companies would not take a credit card over the phone and therefore that’s why the cheques had been used. He had not taken any steps to identify whether the companies whom the cheques had been written to did have such a policy.

[88]It was agreed that the couple had been renovating the house for the previous four years. There was a disagreement as to how much of that renovation cost had been put through the business. The claimant said that it made sense for supplies to be put through as business expenses. The second respondent said that the business was used to obtain trade discounts and for hiring workers but that he repaid the company for money spent on the house. He accepted that prior to the divorce proceedings the claimant had been able to order things for the house and he had paid for these. There was nothing in the second respondent’s witness statement or the documentation to indicate that he had ever informed the claimant that she was not permitted to continue with this arrangement. When asked about it, the second respondent said that he had a conversation with her on 15 December 2022. He had paid a lot of money at that point, and he believed that the building works should have finished. He explained that he told the claimant was not paying any more, they would have to wait until he made more money, and they could finish the renovations later. This was not put to the claimant for her to comment on. We find that this did not occur. The claimant’s authority to spend on the couple’s house had not been revoked.

[89]We find that the payments the respondent now considered to be fraudulent were similar in nature to expenses that had previously been accepted. We find therefore that the investigation is linked to the matrimonial dispute rather than any belief that the claimant was acting dishonestly. The second respondent considered that he was already paying for matters by Orders ffrom the family Court and this was in effect the claimant taking more money by the back door.

[90]The suspension letter suggested that she had been told of her suspension via WhatsApp. No evidence of this was produced by the respondent and the claimant stated that this did not happen. In the absence of any documentation from the respondent, we accept the claimant’s evidence. We find therefore that the first time she was made aware that she was suspended was when she received the letter of 17 September. We also find the letter contained limited information as to the allegations that she was to face.

[91]The letter set out a number of restrictions on her activities. She was told that as she remained in employment with the company, she should be available to attend meetings as required within normal working hours and any failure to attend might lead to forfeiting pay or disciplinary action. She was told that she could not enter the company premises nor make any contact with any member of the company staff, customers, clients or agents without the second respondent’s permission. The letter did not indicate that she was unable to access company systems during any period of suspension.

[92]We find that the timing of the suspension was linked to the MPS. The second respondent says he became aware of the issue in May but yet he took no action until days after the MPS order. We also consider that the lack of detail and the fact that the respondent is suddenly taking issue with things that were previously accepted by him indicate that it was the breakdown of the relationship, the divorce proceedings and the MPS that influenced him to take this action. We find that what weighed most on his mind was that he was paying money to the claimant via the MPS and did not think she should get money from him from other sources. The initial investigation meeting

[93]The claimant was asked to attend a meeting on 25 October 2022.This was just over a week before a financial remedies hearing scheduled for 4 November. As this was extremely close to the financial remedies hearing, the claimant felt that this was timed to distract her from that hearing. Therefore, she complained and requested that the meeting be rescheduled after that date. It was her evidence that this compounded upon the stress she felt at the time, and so this not only damaged her mental well-being but also manifested in her becoming physically ill due to the scale of the stress. The meeting was rescheduled for 14 November 2022 which the claimant attended remotely.

[94]She complains about the investigation process. This includes that she was not permitted to have somebody accompany her in the meeting. The claimant explained that she was very distressed and anxious and attended the meeting with her daughter. At the start of the meeting with the investigator she asked if her daughter could stay and explained the reason why. Investigators said that he would need to check, and he went away and rang the second respondent. As the transcript of that meeting shows the second respondent said that they were not happy for that to happen. The claimant recalls that being said to her.

[95]The minutes also state that it was an informal meeting, and the claimant did not have the right to be accompanied. The claimant did not recollect that being said to her. While the claimant had not seen the transcript of the meeting with her prior to this litigation, she has not challenged it as inaccurate. On the balance of probabilities, we accept that the investigator did inform her that she was not permitted to have someone accompany her because it was an informal meeting. This is consistent with the letters of invitation to the meeting which made that point.

[96]Despite the nature of the meeting, the investigator did, however, seek permission in this case and that was refused by the second respondent. It was the claimant’s evidence that not being able to have her daughter present scared her significantly, and so she remained very stressed throughout the entire meeting. She felt that she was being bullied and harassed. It is unclear whether this is a specific complaint of discrimination, but we find that the reason this was refused was because there was no right to have a companion at this type of meeting.

[97]Prior to meeting with the claimant, the investigator had interviewed the second respondent as part of the process and in that interview the second respondent had given the investigator details of what he said had happened with Barclays, the cheques and payments he said were made by the claimant on business credit cards but were for her personal use. The second respondent indicated at that meeting that had been asking for copies of invoices and cheques but had not received them. The investigator therefore went into the meeting with the claimant without this documentary evidence.

[98]The claimant told us that during the meeting, she was told that evidence would be shared with her throughout the call, but the investigator failed to do so. The transcript shows that the investigator put specific accusations to her. He asked about using a business credit card for personal use. He raised questions about a skip that had been hired, giving dates and the amount, and he asked about a chemical toilet, giving the dates and amount. He made reference to the business cheque book and gave dates on which those cheques had apparently been written with the total amount. We understand that the investigator was putting to the claimant certain transactions that had been put through the company credit card, but she had not been provided with any information about this in advance of the meeting. It was not disputed that the claimant was not provided with any documentary evidence to support the respondent’s allegation, either in that meeting or at any time.

[99]By 5 December the claimant was chasing for some outcome of the investigation and asking why she had not received the promised information about any further steps. The claimant contacted the investigator again on 6 December asking what was happening.

[100]The investigator updated the second respondent to say that he had shared evidence with the claimant in the meeting and had informed her that she would have sight of evidence as the matter progressed to a formal hearing. The investigator advised the second respondent that he should try to end the investigation as soon as possible. He asked the second respondent to let him know when he had spoken to the other companies with regards to the spending.

[101]The second respondent continued to try to track down evidence to support the allegations. On 6 December the second respondent replied to the investigator explaining that he had contacted six organisations to seek copies of the invoices and to obtain proof of what he said was the claimant purchasing things which was not authorised to buy on the company Barclaycard.

[102]On 8 December there was a telephone call between the investigator and the second respondent which was followed up by an email from the second respondent. In that the second respondent again discussed the invoices he was trying to obtain and the evidence that he was seeking. The scope of the investigation now included complaints about purchases from six different organisations. We accept that there was an ongoing investigation at this point.

[103]On 8 December the investigator requested another meeting with the claimant as he told her that some new evidence had come to light. He did not specify what that was or give any details from which the claimant could understand what any expanded case included. He asked her to attend a further meeting so he could get her views on the points made to allow him to complete a full investigation into these. The claimant confirmed that she would not engage until she had been paid. This meeting therefore did not happen. No report or decision on the next steps was provided to the claimant while she was employed. She only had sight of this report in December 2023

[104]The claimant’s suspension was not revoked at this point. It is the second respondent’s position that there was still an ongoing investigation. That is not, however, consistent with the report of the investigator. That concluded that there should be no further action in this case. The report was dated 25 November 2022. It is unclear whether that is the correct date. The report, for example specifies that only the second respondent was spoken to as part of the procedure and yet it makes reference to the claimant’s responses. There are therefore clearly some inaccuracies in the report, which may also include the date it was completed.

[105]There is correspondence in the bundle from the investigator of 6 December stating that he was expected to conclude the investigation and the result would be shared by the end of the next week. There is further correspondence from the investigator on 23 December which suggests that the report had then been delivered to the employer by that date. On the balance of probabilities, we find that the investigator wrote his report in the knowledge of the attempted further investigations, that is sometime after 8 December before 23 December. We find that the claimant was given extremely limited details of these further allegations of misconduct.

[106]The bundle did not contain any further evidence obtained or any further correspondence seeking to get evidence in relation to the allegations about the cheques and misuse of company cards. From the documentary evidence we conclude that such investigation into gross misconduct in the workplace as there had been, was concluded by December 2022. The second respondent did file a report with the police. That would have been a matter of criminal charges if it had been proceeded with. This is dealt with below. The second respondent was not told until 12 June 2023 that the police were taking no action.

[107]On 9 July the claimant received an email which mentioned the ongoing suspension. It said it was unfortunate she remained suspended, but the next investigation had been very protracted for which the second respondent apologised. There was no evidence that there were any such ongoing investigations.

[108]On 10 July a new investigation was started into unauthorised business communications. This is unrelated to the first allegations. We find that the allegations in which the claimant was suspended were concluded by at least the end of December 2022 and there was no disciplinary reason for her ongoing suspension.

[109]We find that the suspension was not as brief as possible, it was not kept under review but continued despite the fact there was no active investigation after the end of December 2022.The claimant was never invited to a disciplinary meeting, and she was not notified that there was a disciplinary case to answer. She was not therefore provided with any information about the alleged misconduct, or its possible consequences and she was not provided with copies of any written evidence.

[110]We find that such a lengthy suspension, the failure to provide any details to which the claimant could properly respond are actions that would go to the implied obligation of trust and confidence between the parties and are capable of amounting to a breach of contract. We also find that the respondent’s motivation for continuing this investigation, and the suspension was because of his anger about having to pay maintenance. He resented what he believed was his wife obtaining further money by putting costs through the business when he was already having to pay her maintenance and for work on the house via the MPS. The claimant’s grievance of 5 December 2022 (issue 2.2.4)

[111]On 5 December the claimant raised a complaint that she had not been given a transcript of her meeting or information about next steps in the investigation. She raised a grievance because she had not been provided with the next steps, the promised transcript or notification that there might be a delay. She also raised a complaint about the failure to pay her wages. The claimant set out that she felt it all started since she reopened divorce proceedings. Her grievance also requested the orders from the employment tribunal be paid in full.

[112]The claimant was told that she would be given the result of the investigation by 16 December 2022. That did not happen. On 22 December, having waited a further week, she therefore followed up again with her grievance. She was told that any report would come directly from her employer and the investigator could not make decisions regarding her employment.

[113]It was not disputed that she was not provided with any outcome report during her employment. This part of the grievance was therefore never addressed. The other part of her grievance, the deduction from wages and failure to pay the employment tribunal award was also never addressed by the respondent. This grievance was therefore not dealt with. No formal meeting to discuss this was ever arranged, whether with or without unreasonable delay. It remained outstanding until the date on which the claimant left.

[114]We find that failure to deal with a grievance was part of a chain of events which legitimately meant that the relationship of trust and confidence that should exist between employer and employee was eroded. It was accepted by the respondent that the failure to deal with grievances was an ongoing act. Reporting the claimant to the police on 4 February 2023 (issue 2.2.5 and 5.2.3)

[115]One of the report’s conclusions was that if the employer believed fraud has occurred then they should report the matter to the police who can investigate. On 4 February 2023 the second respondent wrote to the Metropolitan police. In this letter the second respondent raised complaints about what he described as theft of monies from both his business account and his personal account. The letter had a dual focus. It asked the police to intervene in matters relating to the employment issue but also Ask Them to obtain personal items that the claimant had by virtue of her relationship with the second respondent as his wife.

[116]The second respondent did not explain that the claimant had previously been authorised by him to make payments in the way that he now characterised as fraud. He did not specify that he had ever revoked the claimant’s permission to use company cards or to put money through the business. We find that the second respondent reported the matter to the police because that was the advice he had received from the investigator. We find that he is still pursuing serious allegations against the claimant, in relation to employment aspects for matters that had previously been agreed between the couple as appropriate because he was hurt and resentful about her obtaining monies from him as he saw it in multiple ways. The MPS was a factor in his thinking.

[117]The claimant was contacted by the police on 10 May 2023 to organise a voluntary interview which was then scheduled for 24 May. On her account this caused her a great deal of shock requiring her to be prescribed medication to aid with anxiety brought on by the event. The police found no cause for further action and the case was dropped. The claimant’s evidence the police told her they would not investigate the complaint were it not for the second respondent’s constant insistence that she be investigated.

[118]The police responded to the second respondent on 12 June 2023 stating that there was not much the police could do as it was a civil matter and the family court would need to decide the best outcome for both of them.

[119]The second respondent gave evidence that, although the police investigation did not lead to any legal action, it was confirmed that the claimant has used the business card and business personal expenses without his consent. He told us that the complaint was made for genuine reasons and on a valid basis. No evidence to suggest that any such confirmation had been provided was ever put to the claimant or provided to the tribunal.

[120]While we find that the second respondent was angry about the claimant in effect using company money to refurbish the house after the couple separated, we find that his characterisation of the claimant’s actions was made out of context. We find that the complaint to the police was motivated by his anger and distress over the financial impact of the divorce on him, namely that he had to pay maintenance. Constant barrage of unreasonable emails from July 2023 with unfounded contents and threats of gross misconduct and redundancy

[121]For her constructive dismissal claim, but not her discrimination claim, the claimant relies on what she describes as a constant barrage of unreasonable emails from July 2023 with unfounded contents and threats of gross misconduct and redundancy. The matter is the claimant relies on a set out below.

[122]On 10 July 2023 the claimant was sent a long letter which accused her of accessing business email without authorisation although she was suspended. She had not been told she could not access the company’s digital resources while she was suspended. This letter asked a number of questions and requested a response. While it was headed an investigation into unauthorised business communications it did not specify that this was a potential disciplinary issue.

[123]On 2 August she received two letters. The first required a response to 10 July letter by 7 August. It specified that if no response was received a decision would be taken on the basis of the available information. It did not indicate what that possible decisions could be. The second letter of the same date was about potential redundancy. It indicated that the company might be unable to avoid redundancy. As she was the only individual on the payroll was no one else who could be considered the redundancy. There would be a consultation to consider avoiding this.

[124]On 5 August the claimant answered all the various emails and addressed not only her ongoing grievance which is referred to above but also talked about redundancy and the investigation into access to business information. As the redundancy she explained that she was not in principle opposed to consultations with the company. When questioned on this she explained that she was always open to communication and if the parties could meet in amicable spirit matters could potentially be resolved. On the access to documents, she responded that documents from the family court the confidential that the company had no right to see those documents, nor could anyone use a document on its behalf. Before giving a response, she wanted to understand what evidence the respondent wished to rely on.

[125]On 7 August the claimant was invited for a consultation meeting about her redundancy. The claimant’s reply, raised on 11 August, was to point out that none of her concerns of 5 August had been dealt with so she could not put forward a case adequately and would not prepared to do so to the director, her soon-to-be ex-husband.

[126]On 17 August the respondent responded on the range of points that had been raised. This included her outstanding grievance, redundancy, her wages are ongoing suspension and the documentation issue.

[127]The letter concluded that there was a genuine redundancy situation although he had a strong belief that the claimant would like to be found guilty of misconduct, nonetheless he had chosen to adopt that route. He was content to proceed on the basis of redundancy which was due to his good heart only but stated that if she wanted him to conclude the misconduct route then he would proceed with that. We find that there was no misconduct route at this time. That had been concluded some time previously. We find that this was a threat to attempt to get the claimant to leave.

[128]In relation to the redundancy, as set out above the respondent was successful in obtaining a substantial contract sometime after the claimant had resigned. The second respondent confirmed that if the claimant not resigned she would not have been made redundant once he obtained this contract. While he had been negotiating for this contract probably from February or March 2023 certainly prior to June, he was not confident that he was going to get it. He was not given a timetable as to when he would hear that he had been successful. It was not reasonable, therefore, for him to wait and see the outcome of this before proceeding with the redundancy.

[129]We have accepted that the company was in some financial difficulties at this point. It is also the case that the claimant had not, through no fault of her own, been at work for some period of time. The second respondent sought to argue that her tasks had therefore gone, and she was redundant. He also told us, however, that once he got the new contract, he employed someone else to do the claimant’s role and it would have retained her if it won the contract in time. We do not therefore accept that her role was redundant. We find that the suggestion of redundancy was part of a desire to get the claimant to leave the business.

[130]While there was correspondence relating to pay which is dealt with below, on 4 September the second respondent wrote to the claimant again essentially saying if he did not have response to his questions regarding meetings and adjustments by 11 September, he would be making a decision based on the information available to him. It was unclear what this related to. On 11 September the claimant sent a detailed email responding to all of the points previously made by the respondent. Thereafter she told us she had not received any further responses.

[131]We find that the threat of redundancy and of gross misconduct proceedings were not based on reality and were threats by the second respondent to try to get the claimant to leave. We find that they contributed to the breakdown in trust and confidence. Failure to deal with any of the claimant’s grievances including the total rejection of a grievance on 1 September 2023 (issue 5.2.6)/complete non-payment of wages due 31 August 2023 (issue 5.2.8)

[132]In addition to the grievance raised 22 June the claimant subsequently raised other complaints as grievances. The claimant raised a grievance on 1 August about the fact that her wages were not being paid on time. She raised a further grievance on 5 August regarding the wages being paid below the required rate despite two tribunal judgements. She formally raised a grievance that her pay should be raised to its prior level and the difference between the past two months, as well as all outstanding employment tribunal awards, should be paid to her. Absent confirmation of that by 14 August she would be escalating that matter.

[133]On 11 August, the claimant replied to the letter dealing with redundancy specifying that it was the upmost importance that the concerns email 5 August be addressed prior to any redundancy meeting. On 15 August she notified the second respondent that as he had not responded to her grievance at all she would be escalating the matter to the employment tribunal without any further warning. This got a response on 17 August which stated that any investigation into her grievance would not result in any further or different findings. At that point the second respondent was unable to take any further action considering the above. He therefore did not uphold her grievance. He made it clear that he would not be taking any further action in relation to this matter. We understand that this is related to her complaint that she be paid the monies owed to her in accordance with the employment tribunal matters.

[134]Matters then deteriorated further. On 30 August the claimant was told that due to a shortage of funds in the company he would not be able to pay her August wages until he received more funds. She was asked to bear with him until further notice. The claimant responded that day to specify that she expected to be paid in full the next day and that she had not agreed and would never agree to non-payment of her wages. The respondent replied that he had no money to pay any wages that month until he received more funds. He was doing his best to secure a contract, but nothing had happened so far.

[135]On 1 September, as her wages were overdue, the claimant raised a formal grievance regarding the non-payment of the wages. She said she expected to be paid in full immediately and also requested confirmation by return of the date on which he would be paying them. The claimant followed this up with an email on 2 September stating she was preparing a claim to be sent to the court that could be avoided if she was paid in full immediately. On 4 September the respondent acknowledged the delay in payment of wages due to the financial situation. The claimant responded the same day saying was no way he was able to completely cut someone’s wages. That was simply illegal. The respondent’s reply was to say that he didn’t have enough funds in the account to pay her wages. That was true and he promised as soon as he had the funds, he would pay her wages.

[136]The claimant’s immediate response was that was not good enough. She was being put into a dangerous situation. The respondent’s actions were starving her and his children and depriving them of even the most basic life necessities. Because of this conduct she did not know how to put food on the table. The claimant explained in answer to questions that she relied on her wages to meet household bills and to pay for food. She had been very unhappy about the reduction in her salary down to a thousand pounds a month, but that was better than nothing. To go from that to no money at all was extremely difficult.

[137]On 9 September the claimant again contacted the respondent to say that her wages were now over a week late and when was he going to pay. She reiterated the point in her long response of 11 September. That letter specified that while the respondent seemed perfectly willing to break his side of the contract by not paying her, she still had to figure out how to put food on the table. That was the last correspondence on this point prior to her resignation letter. Resignation letter

[138]On 25 September the claimant submitted her official resignation from the company on the grounds that she had been given no choice but to leave as it was clear would not be paid her wages. She believed this was the last straw after what she described as a persistent barrage of bullying that she had been subjected to for almost 2 years.

[139]Her letter set out the following grounds: the suspension from her employment on false grounds lasting an unnecessarily long time, with no updates being provided to her about the situation, even when grievances were raised; improper investigation procedure and related conduct from the company; no report, transcripts, or decisions being provided regarding the investigation meetings; reporting her to the police in March 2023 on false grounds; threats, accusations, and screaming directed at her during the ET hearing in June 2023; a constant barrage of emails starting in July 2023 with unfounded contents with the clear aim to bully her out of the company, including threats of gross misconduct and redundancy simultaneously; failing to deal with grievances in any way fairly.

[140]The last straw was described as not being paid wages at all at the end of August. The claimant believed she had no choice but to resign at that point. She told us that she originally hoped that the respondent would change its mind. She was hoping that he would still pay. It seemed to her to make sense that as he had already lost twice in employment tribunal proceedings if she continued to point out that she would go to court that might make him relent and pay her. However, by 25 September it had enough time to change his mind I had not done so.

[141]The claimant was asked why she had delayed in resigning at least from the last date of her objection email which was 11 September. As she had accepted that the contract was breached then, why did she delay? If the situation was as bad as she described and she needed to put food on the table, it was suggested that she should have looked for other work and taken action earlier.

[142]The claimant told us that in this period she was facing a number of difficulties. She was in no fit state to obtain other work. As she had no wages that she had to organise a loan to cover costs. There was an impending family court hearing and she needed to spend time preparing for that. She was shocked by the respondent’s conduct. She had to think about what to do and how to manage. She had extreme anxiety about this and in fact lost her voice and was unwell and bedridden for a few days during this period. She also had to take legal advice as to how any action that she took in relation to employment would impact on the family court position. She was therefore fully occupied considering all these matters from the 11 to 25 September. As far as she was concerned, she took timely action and did not delay. She had not left earlier when he had not paid her wages properly as £1000 a month was better than nothing. It was when it went to nothing that she had to take this action.

[143]We find that from the correspondence alone it is clear that the claimant did continue to object to the complete cut in her wages in August. She gave the respondent some time to pay her appropriately and her email chain made it clear that she was not accepting this breach. There is a f period of silence between 11- 25th of September but we find that is a short period. We accept the claimant’s explanation of what was happening during that period and do not find that the fact she was not sending emails at this point means that she had affirmed the breach or waived any ability to rely on the complete failure to pay her wages as the final straw for constructive dismissal.

[144]We were directed to 2 occasions, on 5 December and 8 December 2022 when the claimant stated that should be leaving the company at the conclusion of financial proceedings in the family courts. It was put to the claimant that she always intended to resign, and that the resignation in September was part of this settled intention and not in reaction to the events as she lays them out. The claimant explained that when she wrote these words one of the options as a possible outcome of the family court was that she left the company. This was, however, one of a number of possible outcomes.

[145]It remained her case that she resigned at the time she did because of the last breach, that she was paid no wages. We accept her evidence and find that resignation at the time she made it was in reaction to the failure to pay her wages at all. Holiday Pay (issue 9)

[146]The respondents’ pleaded case was that holiday is only granted to employees who been actively working and require a break. It appeared during the hearing that it was no longer relying on this. Instead, it was the respondent’s contention that as the claimant had been suspended, she had effectively been on holiday for the whole of that period. Further she had been on holiday twice in Spain, from 7 June 2022 of 5 July 2022 and 11 September 2 October 2022.

[147]The claimant disputed this position. She told us that she had not been on holiday and had not been in Spain on the dates given. There was no documentary evidence in the bundle indicating that she had been absent on these dates. We accept that she had not taken holiday in 2022. We note that the terms of the suspension letter told the claimant that she had to be able to attend meetings and any failure to attend might lead to her forwarding pay and/or disciplinary action. It went on to cover the position if she was unable to work due to sickness. It did not expressly cover whether the claimant was permitted to take holiday. On the balance of probabilities, we find that had the claimant breached the terms of the suspension letter by not being available, including being out of the country on holiday as the second respondent asserts, that would have been brought up as a disciplinary issue and an opportunity to cease paying her. It was not.

[148]There is no evidence that rollover of holiday was permitted as a matter of contract. We conclude that there is no contractual right to carry a holiday from one year to another. We accept, however, that, as the claimant told us, staff were sometimes allowed to carry holiday entitlement over from one year to another for particular reasons. She accepted that she had not asked for any holiday in 2022. She had not been refused any holiday request. We also find, however, that holiday was simply never discussed and therefore the respondent did not inform the claimant that leave not taken by the end of the leave year which could not be carried forward would be lost.

[149]The respondent accepted that it was liable to pay the claimant holiday pay on a prorated basis for 2023. The claimant’s role included providing some HR advice to the company and she confirmed that the company’s holiday year was the was the anniversary of each employee’s start date. The respondent accepted that prorated holiday should be calculated for the holiday year in which the ending of her employment occurred. Submissions/Relevant Law

[150]In addition to opening submissions, we received detailed written closing submissions from both representatives. Both counsel expanded on these in oral submissions. In particular in relation to the question of discrimination on the grounds of marriage we were directed to those cases that we set out below.

[151]We also summarise the arguments on this one point of marriage discrimination. The claimant’s submissions were in essence that maintenance is something that only a wife can obtain. As a matter of public policy additional rights have been given to a spouse compared to an unmarried partner. Maintenance is a right unique to marriage. One cannot construct an appropriate comparator who is not married because it does not exist. If the finding of fact is that the conduct is held to be because of the obligation to provide maintenance to a spouse during the marriage breakdown, then that relates to and is dependent upon marital status. One could not have it without the marriage.

[152]The respondent’s submissions were that this should be seen as a financial dispute between two people on the breakdown of the marriage, but it could be on the breakdown of any relationship. Further, this all flowed from a divorce and that way to end a marriage is not an inevitable consequence of the union, nor is a financial settlement inevitable as part of any breakdown. These things were not sufficiently connected to marital status. Breach of written statements

[153]Section 38 EA 2002 states that a tribunal must award compensation to a worker where, on a successful claim being made under any of the tribunal jurisdictions listed in Schedule 5, it becomes evident that the employer was in breach of its duty to provide full and accurate written particulars under S.1 ERA — Ss.38(1)– (3). An award under S.38 is not dependent on a claim having been brought under S.11 ERA for a breach of S.1. It is sufficient that the tribunal make a finding at the hearing that the employer was in breach of S.1 at the time the main proceedings began.

[154]Where the tribunal finds that the employer breached its duty to provide full and accurate employment particulars, it must award the ‘minimum amount’ of two weeks’ pay (subject to exceptional circumstances which would make an award or increase unjust or inequitable), and may, if it considers it just and equitable in the circumstances, award the ‘higher amount’ of four weeks’ pay — S.38(2)-(5).

[155]In Costco Wholesale UK v Newfield EAT 0617/12 the Appeal Tribunal held that the tribunal had not erred by awarding the maximum of four weeks’ pay for the employer’s failure to provide a S.1 statement. The tribunal had taken into account the fact that CW UK was a large employer that had no excuse for failing to provide employees with clear documentation setting out the matters required by S.1. It had also noted that the employer’s failure had led to difficulty in establishing what contractual arrangements existed concerning what hours N was required to work. Constructive unfair dismissal

[156]Section 95(1)(c) of ERA 1996 states that there is a dismissal when the employee terminates the contract, with or without notice, in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct. To do so there must be a breach of a fundamental term of the contract, which can include the implied term of trust and confidence. We reminded ourselves that in Croft v Consignia plc

[2002] IRLR 851

, the Employment Appeal Tribunal held that the implied term of trust and confidence is only breached by acts and omissions which seriously damage or destroy the necessary trust and confidence. Both sides are expected to absorb lesser blows.

[157]Western Excavating (ECC) Ltd v Sharp

1978 ICR 221

, CA set out that in order to claim constructive dismissal, the employee must establish that: there was a fundamental breach of contract on the part of the employer, the employer’s breach caused the employee to resign, the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.

[158]In W E Cox Toner (International) Ltd v Crook

[1981] IRLR 443

, the EAT set out the principles that apply to affirmation in the employment context. It recognised that there is an important difference between employment contracts and most other contracts:

[159]In making the choice between affirming the contract or accepting the repudiation, mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract, but prolonged delay may be evidence of an implied affirmation. However, if the innocent party further performs the contract to a limited extent, but at the same time makes it clear that they are reserving their rights to accept the repudiation or are only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice the innocent party's right subsequently to accept the repudiation.

[160]In Nottinghamshire CC v Meikle [2005] ICR, it was held that whether there is a breach of contract must be viewed objectively. There will be no breach of contract simply because the employee subjectively feels that such a breach has occurred regardless of whether such a belief is genuinely held. If, on an objective view there has been no breach of contract, then the employee’s claim must fail (Omilaju v Waltham Forest LBC [2005]

[161]Individual actions by an employer that do not in themselves constitute fundamental breaches of any contractual term may have the cumulative effect of breaching the implied term of trust and confidence The Court of Appeal in Lewis v Motorworld Garages Ltd

1986 ICR 157

, CA, held that a course of conduct can cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a ‘last straw’ incident even though that incident by itself does not amount to a breach of contract.

[162]If the employee is constructively dismissed, then the employer must show that the dismissal was for a fair reason (Savoia v Chiltern Herb Farms Limited

[1982] IRLR 166

). In this case the reason relied on “some other substantial reason”.

[163]Pursuant to Section 98(4) ERA 1996, if the employer has shown a potentially fair reason for dismissal, the Tribunal must consider whether dismissal is a fair sanction in the circumstances and in accordance with equity and the substantial merits of the case.

[164]When considering Section 98(4), and the reasonableness of the employer’s conduct, the Tribunal should not substitute its decision as to what was the right course to adopt. The function of the Tribunal is to determine whether, in the particular circumstances of the case, the Respondent’s decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If a Respondent so demonstrates this, the dismissal is fair (Iceland Frozen Foods v Jones

[1982] IRLR 439

, paragraph 24). Limitation period -just and equitable

[165]S123 Equality Act provides that “….a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. ……….. (3)For the purposes of this section – 1. Conduct extending over a period to be treated as done at the end of the period

[166]Where there is a series of distinct acts, the time limit begins to run when each act is completed, whereas if there is continuing discrimination, the time only begins to run when the last act is completed. There is a distinction between a continuing act and an act that has continuing consequences. Where an employer operates a discriminatory regime, rule, practice or principle, then such a practice will amount to an act extending over a period. Where however there is no such regime, rule, practice or principle in operation, an act that affects an employee will not be treated as continuing even though the act has ramifications that extend over a period of time.

[167]The Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust

2006 EWCA Civ 1548

, CA Court clarified that the correct test in determining whether there is a continuing act of discrimination is that set out in Commissioner of Police of the Metropolis v Hendricks

2003 ICR 530

, CA, the Court of Appeal made it clear that it is not appropriate for employment tribunals to take too literal an approach to the question of what amounts to ‘continuing acts’ by focusing on whether the concepts of ‘policy, rule, scheme, regime or practice’ fit the facts of the particular case. Those concepts are merely examples of when an act extends over a period and should not be treated as a complete and constricting statement of the indicia of ‘an act extending over a period’. Thus, tribunals should look at the substance of the complaints in question — as opposed to the existence of a policy or regime — and determine whether they can be said to be part of one continuing act by the employer. Discrimination on grounds of marriage

[168]Direct marriage and civil partnership discrimination occurs where a person(a) (A) treats another

(b) (B) less favourably than A treats or would treat others because B is married or a civil partner (section 13(1), EqA 2010).

[169]An employee claiming direct marriage and civil partnership discrimination will need to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs (section 23, EqA 2010). The appropriate actual or hypothetical comparator for such a claim would be someone whose relevant "circumstances" are the same as or not materially different to those of the claimant but who is not married or a civil partner.

[170]Whether the comparator is actual or hypothetical, the comparison must help to shed light on the reason for the treatment. We considered Shamoon v the Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

. The comparator required for the purposes of the statutory definition of discrimination must be a comparator in the same position in all material respects of the victim so that he, or she, is not a member of the protected class. There must be ‘no material difference between the circumstances relating to each case’ when determining whether the claimant has been treated less favourably than a comparator.

[171]The unfavourable treatment must be “because of” the protected characteristic. The protected characteristic needs to be a cause of the less favourable treatment but does not need to be the only or even the main cause.

[172]In several cases, the question has arisen as to whether a female employee is protected where the reason for the treatment complained of was not that she was married per se, but that she was married to a particular man.

[173]There are two conflicting EAT decisions on this point. In Dunn v Institute of Cemetery and Crematorium Management

UKEAT/0531/10

, the EAT held that a tribunal had erred in rejecting Mrs Dunn's direct marriage discrimination claim on the basis that the treatment complained of was not on the ground that she was married per se, but on the ground of her relationship with her husband. The EAT acknowledged that Mrs Dunn might have been treated in the same way if she was in a close relationship other than marriage with Mr. Dunn but suggested that this would not defeat her marriage discrimination claim. It seemed to say that Mrs Dunn's claim should succeed if she was treated less favourably because of her close relationship with Mr Dunn, which happened to be a marital relationship.

[174]In Hawkins v Atex Group Ltd and others

[2012] IRLR 807

the EAT disagreed with the Dunn approach. The EAT in Hawkins explained the key question is whether the claimant suffered the treatment complained of because she was married to the man in question. The relevant comparator is a person who is not married, but whose relevant circumstances are otherwise the same as those of the claimant. This will usually be someone in a relationship with the claimant's husband that equates to marriage but is not: a "common-law spouse". Applying this test, the EAT concluded that a tribunal had been right to strike out Mrs Hawkins marriage discrimination claim: on the facts, she was not realistically going to be able to establish that her employer had been motivated to dismiss her specifically because she was married to the company's chief executive, rather than simply because she was in a close relationship with him. We have adopted the approach in Hawkins as this has been followed in subsequent cases as set out below.

[175]The EAT also agreed with the analysis of the law in Hawkins in Gould v Trustees of St John's Downshire Hill

UKEAT/0115/17

, the EAT considered a case that concerned marital difficulties. Mr Gould was a church minister. An employment tribunal struck out his claim on the basis that it alleged dismissal because of marital difficulties rather than the status of marriage, and so did not engage a protected characteristic. The EAT disagreed, holding that the dismissal was alleged to be because of the difficulties and the fact that the claimant was married. Furthermore, the only reason the marriage difficulties were significant to the church was because there was a marriage in which there could be difficulties. Following the reasoning in Hawkins, the EAT said that the comparator in such a case was someone in a close relationship that is not marriage, where the relationship is in difficulties.

[176]In Ellis v Bacon and another

[2022] EAT 188

, the EAT held that a tribunal had erred in finding that an employee had been directly discriminated against because of marital status. Ms Bacon was a director and shareholder in a company and subsequently married its managing director and majority shareholder. Shortly after a new director, Mr Ellis, joined the company, Ms Bacon informed Mr Bacon that she wished to separate, and an acrimonious divorce ensued. False allegations were raised against Ms Bacon, and she was suspended and eventually dismissed by a letter from Mr Ellis. An employment tribunal held that Mr Ellis had sided with Mr Bacon in relation to the marital dispute and was compliant with him removing Ms Bacon's directorship, not paying her dividends, ignoring her grievance, reporting her to the police, and suspending and dismissing her on spurious grounds. The tribunal held that those actions amounted to less favourable treatment of Ms Bacon because of her marital status in being married to Mr Bacon and upheld her direct discrimination claim.

[177]However, on appeal, the EAT held that the tribunal had failed to apply the correct statutory test. The question was whether Mr Ellis had treated Ms Bacon less favourably because she was married, not because she was married to Mr. Bacon. The tribunal had failed to identify the correct hypothetical comparator, which would be someone in a relationship akin to marriage with Mr Bacon, but who was not actually married to him.

[178]We were also referred to the Chief Constable of Bedfordshire Constabulary v Graham (2002] IRLR 239. And the fact of that case a woman was rejected from the post because she was the spouse of a serving officer could not work in the same division because she would not be a competent and compatible witness against a spouse in proceedings. The EAT found that was a marriage specific reason.

[179]We conclude that an individual can bring a complaint because they are treated less favourably because they are married to a particular man. That complaint can only succeed, however, if the reason for that treatment is the fact of the marriage, rather than being in a close relationship. There must be an intrinsic link to marriage rather than any other form of relationship. We must identify the correct hypothetical comparator. This may often be an individual who is in a close relationship akin to marriage but not married. Burden of proof

[180]In Igen v Wong ltd

[2005] EWCA Civ 142

[2005] ICR 931

, CA. remains the leading case in this area. There, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out to the tribunal’s satisfaction (i.e. on the balance of probabilities) is the second stage engaged, whereby the burden then ‘shifts’ to the respondent to prove — again on the balance of probabilities — that the treatment in question was ‘in no sense whatsoever’ on the protected ground.

[181]The Court of Appeal explicitly endorsed guidelines previously set down by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd

2003 ICR 1205

, EAT, albeit with some adjustments, and confirmed that they apply across all strands of discrimination.

[182]The bare facts of a difference in treatment and a difference in status only indicate a possibility of discrimination, they are not 'without more' sufficient material from which a Tribunal can conclude that there has been discrimination, Madarassy v Nomura International

[2007] IRLR246

CA para 54-57. Likewise, that the employer's behaviour calls for an explanation is insufficient to get to the second stage: there still has to be reason to believe that the explanation could be that the behaviour was "attributable (at least to a significant extent)" to the prohibited ground. Therefore 'something more' than a difference of treatment is required. Holiday Pay

[183]The Working Time Regulations 1998 provide workers with a statutorily guaranteed right to paid holiday. Subject to certain exclusions all workers are entitled to 5.6 weeks’ paid holiday in each leave year beginning on or after 1 April 2009 — comprising four weeks’ basic annual leave under Reg 13(1) and 1.6 weeks’ additional annual leave under Reg 13A(2). The entitlement to 5.6 weeks’ leave is subject to a cap of 28 days. Reg 13(1)

[184]Compensation related to entitlement to leave is set out in regulation 14 14.—(1) This regulation applies where— (a)a worker’s employment is terminated during the course of his leave year, an (b)on the date on which the termination takes effect (“the termination date”), the proportion he has taken of the leave to which he is entitled in the leave year under regulation 13(1) differs from the proportion of the leave year which has expired

(2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3).

(3) The payment due under paragraph (2) shall be— (a)such sum as may be provided for for the purposes of this regulation in a relevant agreement, or (b)where there are no provisions of a relevant agreement which apply, a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined according to the formula— where A is the period of leave to which the worker is entitled under regulation 13(1). B is the proportion of the worker’s leave year which expired before the termination date, and C is the period of leave taken by the worker between the start of the leave year and the termination date.

(4) A relevant agreement may provide that, where the proportion of leave taken by the worker exceeds the proportion of the leave year which has expired, he shall compensate his employer, whether by a payment, by undertaking additional work or otherwise.

[185]On 1 January 2024, the ER Regulations 2023 amended regulation 13 to introduce a statutory right for the worker to carry over holiday if any of the following apply. Where in any leave year, the employer fails to: recognise a worker's right to annual leave or paid annual leave; give the worker a reasonable opportunity to take leave or encourage them to do so; or inform the worker that leave not taken by the end of the leave year will be lost.

[186]In such cases the worker has the right to carry over any untaken leave or leave which has been taken but was unpaid. The right to take the carried-over leave will last until the end of the first full leave year in which there is no such failure by the employer. Conclusions

[187]Considering the findings of fact set out below and applying the relevant law conclusions on the issues that we are asked to determine are as follows. Jurisdiction to consider the direct discrimination claims

[188]Three claim forms have been presented. The first was filed on 4 March 2023. The ACAS conciliation period was 14 January to 15 February 2023. This claim was about failure to pay wages and discrimination on the basis of marriage. In the grounds of resistance, the respondent stated that the employment tribunal did not have jurisdiction to hear claims taking place prior to 4 November 2022.

[189]The second claim was lodged on 20 August 2023 following ACAS conciliation period from the 15th to 17 August 2023. That brought a claim of deductions from wages and failure to provide a written statement. The third complaint was brought on 20 November 2023 following a period of ACAS conciliation from the 6 to 8 November 2023. That added claims of constructive unfair dismissal and wrongful dismissal and reiterated complaints of direct discrimination and failure to provide a written statement of employment particulars. The grounds of resistance submitted that a number of the claims were out of time and the tribunal did not have jurisdiction to hear those matters taking place before 4 November 2022.

[190]The issues list identified the relevant date as events happening before 15 October 2023 and limited it to discrimination claims. It was accepted this was incorrect and we have agreed with the parties that this relevant date is 7 August 2023.

[191]The respondent conceded that only one matter was therefore out of time. That is the complaint that it is an act of discrimination to report the claimant to the police on 1 February 2023. The claimant suggested that as the police report mentioned the allegations of use of the card and cheques which were subsequently part of the matter for which she was suspended, and that as suspension was ongoing one could treat the act as continuing. The claimant did concede that it was in some difficulties with running an argument that this was a continuing act.

[192]We conclude that it was not. Reporting the claimant to the police It is a one-off act of and therefore this is out of time. The tribunal does not have jurisdiction to hear this matter. The claimant did not produce any evidence or seek to run an argument that time should be extended on a just and equitable basis, and we have not therefore considered that point. Direct discrimination

[193]We have found that the matters complained about at 2.2.1, 2.2.2, 2.2.3, 2.2.4 and 2.2.7 occurred. It was not suggested that these were not unfavourable acts, and we accept that they were. We have considered the “reason why” in each case. We have found that the reason for the original deduction from the claimant’s wages prior to the maintenance order being made (part of 2.2.1) was because of the breakdown in the relationship. The reason for the delay in making payments when the respondent was found liable for these by an employment tribunal (the second part of 2.2.1) was the respondent exercising its legitimate right to appeal to the Employment Appeal Tribunal.

[194]Thereafter we have found that the claimant was subjected to all the other matters set out in the issues list because the second respondent was angered by the fact that she had obtained maintenance payments from him. It was not because of the breakdown of the relationship per se, or because of the amount of money that he was paying her, but the fact that he had to effectively, as he saw it, pay her twice, once through the family Court maintenance orders and the second as an employee.

[195]The “reason why” for the matters complained of at 2.2.1 – 2.2.7 inclusive (other than part of 2.2.1) all relate to the relationship and its breakdown. We must consider whether the conduct amounts to less favourable treatment than that of the appropriate comparator. The comparator had been agreed as a hypothetical comparator being an unmarried person/or not in a civil partnership in the same material circumstances.

[196]For issue 2.2.1 we find that the claimant was treated as she was because of a relationship breakdown, albeit in the form of a marriage breakdown. The acts complained of at 2.2.1 were not marriage specific. The first part of 2.2.1 was because of the breakdown in the relationship which could have applied to any long-term unmarried relationship. There is nothing unique to marriage. The second part of 2.2.1 related to the exercise of a legal right. There is nothing uniquely related to marriage in this act. In considering in particular Ellis v Bacon, we conclude that anyone in a relationship akin to marriage with the second respondent when that relationship broke down would have been treated in the same way. This part of the claim therefore does not succeed.

[197]For the other matters complained of as discrimination we have found that the reason for the treatment was the obligation to pay maintenance. Maintenance is a sum that is determined by the court and can be different from the sum the parties would seek to agree. It does not apply to a common law wife. It is a unique aspect of marriage. To put it another way, like the right in Graham, maintenance is a marriage specific right and so treatment related to this is for a marriage specific reason.

[198]We consider that the facts of this case (other than the initial deduction from wages) are distinguishable from Hawkins where the reason for the treatment was the breakdown in the relationship. It is also distinguishable from that of Ellis when again it was the breakdown of the relationship that led to the unfavourable treatment. It is also distinguishable from Gould where there was no evidence that it was marital difficulties that were the reason for the treatment rather than the loss of trust and confidence as a result of general behaviour. In this case we have found that it is not the breakdown of the marriage that is causing the treatment, instead it is the unique spousal right/obligation to pay maintenance. That can only arise from the status of marriage.

[199]We conclude that right is intrinsically bound up with the fact of marriage and is unique to that relationship. It arises out of the fact that the couple were married. While it arises on the breakdown of a relationship, it can only occur where the relationship was one of marriage. On these facts there is an intrinsic link to marriage and accordingly we find that the claims for discrimination, insofar as they relate to ongoing deductions after the MPS was made, that is the suspension, the investigation and the failure to address grievances, succeed. Unlawful deduction of wages

[200]The respondent has conceded liability for this, and it has been agreed that the outstanding sum is £3628.54 Constructive unfair dismissal.

[201]The respondent accepted that failure to pay wages is a fundamental breach of contract. We have also found that reducing her wages was a breach of contract. We have found that the investigation was improperly conducted. The suspension was excessive. The threats of gross misconduct and redundancy were unfounded. The respondent did not deal with the claimant’s grievances appropriately. We have found all these matters to be breaches of contract.

[202]We were invited to find that the claimant resigned as part of a considered plan we have made a finding of fact that this was not the case. We found that the claimant resigned in reaction to the complete non-payment of wages which were due on 31st of August 2023. We’ve accepted that that was the last straw and that was why she left when she did.

[203]It was submitted that the claimant had delayed unreasonably and therefore had affirmed the breach. Looking at her conduct during this period we find that she sent 10 emails which did, as the claimant’s Counsel described, ratchet up the level of pressure she was trying to exert. The was a short period from 11 September to the date on which she actually resigned when there is no correspondence from her. We have accepted the claimant’s explanation for this extremely short time period when there is no further correspondence objecting. We do not find that her conduct or actions can anyway be said to have waived the breach. We conclude that she gave the respondent time to remedy the final breach and responded once it was clear that this would not happen.

[204]We therefore conclude that the claimant was constructively unfairly dismissed. There was no fair reason for her dismissal. We have already identified that the redundancy was not a genuine reason and further, as the respondent then obtained another contract it is respondent’s own evidence that she would have been retained had she not resigned. Wrongful dismissal

[205]As there was no dismissal for breach of contract by the claimant, she the was also wrongfully dismissed. We have found that her employment began in 2002. In the absence of any written contract, she is entitled to statutory notice of 12 weeks’ pay. Failure to provide written particulars

[206]The respondent has conceded this. We accept that this is a very small company with limited resources. In the circumstances we do not think it appropriate to award more than two weeks’ pay. Holiday pay

[207]The respondent has conceded liability to pay holiday pay for the year in which the claimant’s employment terminated.

[208]We have accepted the claimant’s evidence that she was not told by the respondent that if leave was not taken by the end of the year which could not otherwise be carried over that it will be lost. On that basis, in accordance with regulation 13(16) (c) the claimant is entitled to carry over her leave for the leave year 2022/2023.

Remedy

[209]A separate remedies hearing will need to be listed. Based on our findings of fact the claimant’s employment begins in 2002 and any basic award would need to be calculated from that date.

[210]We have also found that there was a failure to deal with grievances appropriately and there were breaches of the ACAS code. We would need to determine the appropriate percentage uplift to be awarded in this case. EMPLOYMENT TRIBUNALS Claimant: Ms G Al-Naimi Respondent:(1) Buildmaster Construction Services Ltd

(2) Mr. A Al – Naimi Heard at: London South by CVP On: 12/11/24 Before: Employment Judge McLaren Mrs M Foster- Norman Ms H Bharadia Representation Claimant : Mr. S John, Counsel Respondent: Mr A Al – Naimi, supported by Mr I Hussain REMEDIES JUDGMENT The unanimous decision of the tribunal is as follows: –

[1]The claimant is awarded the following sums a) A basic award of £15,507.80 (weeks this is calculated as 16 weeks x 1.5× £553.85 +4 weeks ×1×553.85.) b) A compensatory award of £ 22,109.73 for loss from 18 December 2023 to 12 November 2024 being 47.4 weeks, together with a compensatory award for 12 weeks future loss being £5,597.40. Taking into account a 10% ACAS uplift and interest the total compensation award is £29,917.40 c) A figure of two weeks’ pay for loss of statutory rights being £932.90 d) 12 weeks’ notice of £5,597.40 e) £15,000 for injury to feelings. Including interest and 10% ACAS uplift this comes a total of £19,428.58.

[2]An ACAS uplift of 10% has been applied where appropriate.

[3]The sum of £76,307.20 needs to be grossed up and therefore the total amount awarded on a gross basis is £90,732.96.

[1]Both parties had been represented at a liabilities hearing which full oral reasons had been given. The hearing had been listed for both liability and remedy and directions had been given for evidence on both matters to be presented at the main hearing. Unfortunately, due to significant over running in the estimated length of witness evidence, while we were able to hear all of the evidence and submissions and deliver our decision on liability we were not able to go on to decide remedy.

[2]The unanimous decision of the tribunal on liability was that the claimant had been unfairly dismissed and the basic and compensatory award needed to be determined. The claim for unfair dismissal had succeeded and the compensatory sum needed to be determined at the remedies hearing. The claim for direct discrimination also succeeded and was to be determined at the remedy hearing. The question of ACAS uplift was also left to the remedies hearing. This was left over for a separate hearing which was heard today.

[3]Remedies hearing oral judgement was again given at the end of this hearing, but the respondent immediately requested full written reasons which are now set out. Representation and documents

[4]We were provided with a small bundle of documents, being the original hearing bundle, the claimant’s original statement and revised schedule of loss together with written submissions by the claimant’s counsel.

[5]The respondent was assisted by an individual who described himself as a McKenzie friend was present to assist the second respondent. It was explained the panel that Mr Hussain had previously been engaged by Corners and had acted on two previous preliminary hearings. He was now acting on a pro bono basis to assist. The Respondent’s application

[6]At the outset of the remedy hearing, having provided the documents in question to the claimant’s representative and the tribunal a few minutes before the start of the hearing, the respondent made an application to submit additional documents and a new witness statement. These were a valuation report on the company, a witness statement for the second respondent and some screenshots relating to potential roles it was said that the claimant could have applied for but did not.

[7]We heard submissions from the claimant’s representative and from the respondent’s McKenzie friend on this point. In summary the claimant’s counsel submitted that the documentation that was now sought to be put in was put in far too late, directions for exchange of documents and witness statements having expired prior to the previous hearing, the previous hearing had been to deal with liability as well as remedy and all evidence was to be dealt with and had been dealt with at that point. Further the documents were not in any case relevant. In addition the valuation report was potentially covered by the county court order of which we were already aware preventing it being used in these proceedings. The witness statement also made reference to matters that either already been determined or were part of the family settlement and outside the scope of this tribunal’s jurisdiction.

[8]On behalf of the respondent it was submitted that a) While the valuation had been ordered by the family Court, it could be used for other purposes. There was no bar on the tribunal reading it. b) It was not fair that the respondent could not put in a witness statement when the claimant had done so. It was clarified the claimant had not put in a witness statement but had prepared written submissions. c) The claimant had produced no evidence of mitigation, and it was not fair that respondent could not now challenge it.

[9]We concluded that the witness statement was largely covering old ground or referred to the matrimonial matters which we cannot deal with. It was not therefore relevant, and we did not consider it. There was nothing to prevent the respondent making submissions in the same way the claimant had done so.

[10]We also concluded that the valuation report would not be considered by the tribunal as it did not advance matters any further. We had already heard and accepted evidence about the state of the company’s finances in the relevant period and did not need any further evidence on this point. We are also concerned that considering it might lead to us breaching an order. While a submission was made that it would not do so, this was not accepted by the claimant’s representative. The position was left uncertain and where there was room for doubt, we would not be prepared to take an action which could amount to contempt of court. However, our primary reason for refusing to accept it was that it did not assist the Tribunal as it covered old ground.

[11]In terms of mitigation, we did not permit the respondent to add further documents on this point. As referred to above, the previous hearing has dealt with evidence on all matters including remedy. Mitigation had been included in the claimant’s witness statement and had not been challenged by the respondent. We had all understood coming to today’s hearing that mitigation was not a matter that was disputed, and it would not within the overriding objective to allow a challenge to mitigation which had not been made at the appropriate time when evidence was being questioned to do so for the first time on the morning of the remedy hearing.

[12]While it may be that the respondents now wishes that they had made this challenge, during the period he was represented they did not. As the respondents had the benefit of legal advice throughout, we must take that into account and we reached the conclusion that as his legal team did not challenge mitigation at the appropriate time that was not a position that he could now alter. Finding of facts

[13]We would reiterate that the claimant’s witness statement had contained her evidence as to her search for jobs. This is that at paragraph 41 of her original statement. She said that she had made many applications searching for a similar job hybrid all remote secretarial jobs.

[14]We accept that the claimant is now 58 years old and that she left her job in acrimonious circumstances. For the last 23 years she has worked only for the respondent in office admin/HR function of a small construction company. While it was said that she did not possess the level of skills and experience which would make her attractive to many employers, we find that she is a welleducated, highly competent individual. Her experience, albeit within a family company, has been a hands-on role in a highly successful company. We find that she would possess experience that would be valuable to some employers. We understand that both parties continue to be involved in matrimonial proceedings but do not find that this is a reason to delay finding employment or that it amounts to any barrier to her ability to do so.

[15]We also note that in the claimant’s witness statement she states that she was caring for her elderly mother and her children at home. We understand that what she may have family responsibilities but the children are all adult and we find that neither of these caring responsibilities would be a barrier to her obtaining employment. Indeed we accept her evidence that had circumstances not led to this falling out between the parties she intended to continue working for the respondent. We find therefore there was no caring obligation which would prevent her taking on employment.

[16]The claimant stated that she had fallen into anxiety and depression and that she had been prescribed medication and been referred to counselling. In submissions the respondent suggested that there was simply no evidence to show that the claimant’s ill health was a result of the employment relationship, and it could be a result of other things. We note that the respondent had not challenged any link between this anxiety and depression and the respondent’s actions in the employment context. No expert witness had therefore been instructed to address this matter to assist the panel.

[17]We confirm that we found the claimant generally to be a credible witness and we confirm that we accept her evidence as set out in her witness statement particularly as it was not challenged at all by the respondent. We therefore accept that she made some attempts to mitigate her loss. We also accept that she suffered episodes of ill-health and this it was as a result of the employment relationship. Relevant Law Concurrent unfair and wrongful dismissal

[18]It is often the case that unfair and wrongful dismissal claims are brought concurrently before an ET. If a claim for wrongful dismissal has also been made, the number of weeks for the unfair dismissal immediate loss of earnings should be calculated from the date at which the wrongful dismissal damages period ends through to the date of the hearing, new job or expectation of a new job 19. s123 of the ERA 1996 provides that the compensatory award shall be: ‘...such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer’.

[20]The object of the compensatory award is to compensate the employee for their financial losses as if they had not been unfairly dismissed - it is not designed to punish the employer for their wrongdoing. Calculation of

Remedy

[21]The calculation falls under two headings, immediate loss of earnings and future loss. Immediate loss is that suffered between the EDT and the date of the remedies hearing. Loss of earnings will be calculated on the basis of net take home pay (that is, after deduction of tax and national insurance).

[22]The employer’s liability will normally cease before the date of the remedies hearing if the employee has (or ought to have) got a new permanent job paying at least as much as the old job as there will no longer be a loss arising from the dismissal.

[23]An award for compensation can be increased or reduced, by up to 25%, if the employer/employee has unreasonably failed to comply with a relevant code of practice relating to the resolution of disputes (see s207(A) TULRC(A).

[24]In Slade and anor v Biggs and Ors EAT 0296/19 the Eat set out that the Tribunal may choose to apply a four stage test when considering what could be effective employees failure to comply with the ACAS code section 207 TULR C A is the case such as to make it just and equitable toward any uplift? If so, what is the tribunal considers just and equitable percentage, not exceeding, possibly equalling, 25%?. Does the uplift overlap, or potentially overlap, with other general awards, such as injury to feelings; and, if so, what is the appropriate adjustment, if any, the percentage of those awards in order to avoid double counting? Applying a final sense check, “ the sum of money represented by the application of the percentage uplift arrived at by the tribunal disproportionate in absolute terms and, if so, what further adjustment needs to be made?

[25]Awards are calculated on the basis of net pay. It was submitted by the respondent’s representative that there is no statutory obligation to Gross up to take account of tax and that we had a discretion not to do so. We were directed to an authority, Somerset County Council V Challoner EAT00632014which was said to support that proposition. We note that it was a common ground that the question grossing up with a live issue before the tribunal but the decision notes that the respondent did not dispute that in order to achieve an award of just on Exmoor, grossing up can be required to the extent the award exceeds £30,000. We also considered Acetrip ltd v Dogra

UKEAT/0238/18/BA

in which it was held that it was possible to work on gross figures but it will be an error of law tribunal failed to take into account the first £30,000 of its award would be taxfree. We conclude that it is most appropriate to use net figures and then to apply a grossing up. Burden of proof on mitigation

[26]The employer’s liability will normally cease before the date of the remedies hearing if the employee has (or ought to have) got a new permanent job paying at least as much as the old job as there will no longer be a loss arising from the dismissal. Future loss will be awarded if the claimant has not got a new role despite sufficient efforts to find one by the date of the hearing. The tribunal will then award some period of future loss to cover the period until it is thought reasonable that the claimant would be a new employment.

[27]The claimant is under a duty to mitigate her losses, but when calculating the compensatory award, the calculation should initially assume that the employee has taken all reasonable steps to reduce his or her loss.

[28]There was some debate between the parties’ representatives as to what efforts the claimant should have made in relation to mitigation and whether the respondent could seek to argue that she had not made sufficiently reasonable efforts having not challenged the mitigation evidence at all.

[29]Counsel for the claimant made the following submissions. “ In Cooper Contracting Ltd v Lindsey 2016 ICR D3, EAT, Mr Justice Langstaff (then President of the EAT) summarised a number of principles drawn from the earlier case law that should be used to guide tribunals when considering whether there has been a failure to mitigate loss. He observed that there were considerable dangers in approaching the matter as though the duty to mitigate required the taking of all reasonable steps to lessen loss. The following guidance be firmly borne in mind: a) the burden of proof regarding a failure to mitigate is on the wrongdoer. A claimant does not have to prove that he or she has mitigated the loss. b) if evidence as to mitigation is not put before the employment tribunal by the wrongdoer, it has no obligation to look for that evidence or draw inferences. This is how the burden of proof works in this context: responsibility for providing the relevant information belongs to the employer c) the employer must prove that the claimant has acted unreasonably. The latter does not have to show that what he or she did was reasonable — see Ministry of Defence v Mutton

1996 ICR 590

, EAT. What is reasonable or unreasonable in this regard is a question of fact, to be determined after taking into account the wishes of the claimant as one of the relevant circumstances, although it remains the tribunal’s own assessment of reasonableness that counts. d) the tribunal should not apply a standard to the claimant that is too demanding. He or she should not be put on trial as if the losses were his or her fault, given that the central cause of those losses was the act of the employer in unfairly dismissing the employee. e) the relevant test can be summarised by saying that it is for the wrongdoer to show that the claimant has acted unreasonably in failing to mitigate f) in a case where it might be reasonable for a claimant to have taken a better paid job, this fact does not necessarily satisfy the test: it is simply evidence that might assist the tribunal to conclude that the employee has acted unreasonably. 2. This guidance has been endorsed and applied by the EAT in several subsequent cases, including Wright v Silverline Care Caledonia Ltd EATS 0008/16 and Singh v Glass Express Midlands Ltd 2018 ICR D15, EAT. 3. In Ministry of Defence v Hunt and ors

1996 ICR 554

, EAT, the EAT stressed that the employer must adduce evidence in relation to mitigation and that a vague assertion of failure to mitigate, unsupported by any evidence, is unlikely to succeed. In the first instance, compensation will be assessed on the basis that the claimant took all reasonable steps to reduce his or her loss. If the employee in fact failed to take such steps — for example, by turning down suitable new employment — the award will be reduced to reflect only those losses that would have been incurred if he or she had taken the appropriate steps (see IDS Vol 5 Chapter 37 para 37.44). - See also Wilding v British Telecommunications plc

[2002] IRLR 524

; Donald v AVC Media Enterprises Ltd (

UKEATS/0016/14/JW

, 9 November 2016).”

[30]On behalf of the respondent, Mr Hussain disputed this. In oral submissions he made reference to a number of authorities. We were not provided with copies of these or able to take down their details. We were subsequently provided with a long list. It was not proportionate for the tribunal spends significant amount of time locating each of these authorities when they had not been properly produced by the respondent. We therefore considered the oral submissions made.

[31]To the extent that the cases referred to deal with mitigation we understand Mr Hussain’s point to be that even if a respondent does not challenge a claimant’s attempts to mitigate where no evidence of this has been provided for example in the form of job applications then the tribunal must still determine whether or not the claimant acted reasonably. Further in the absence of evidence in the form of documentation it should be held that the claimant had not acted reasonably and had failed to mitigate.

[32]Having considered the point we directed both the claimant’s counsel and the representatives McKenzie friend to this passage in Harvey In Singh v Glass Express Midlands Limited

UKEAT/71/18

(15 June 2018, unreported), HHJ Eady QC (sitting alone) set out a concise summary of the guidance given by Langstaff P in Cooper on the correct approach to the question of mitigation:(1) The burden of proof to show a failure to mitigate is on the wrongdoer; a claimant does not have to prove they have mitigated their loss.

(2) It is not some broad assessment on which the burden of proof is neutral; if evidence as to mitigation is not put before the ET by the wrongdoer, then the ET has no obligation to find it. That is the way in which the burden of proof generally works; providing information is the task of the employer.

(3) What has to be proved is that the claimant acted unreasonably; the claimant does not have to show that what they did was reasonable. It is not enough in order to succeed with an argument of failure to mitigate merely to show that the employee failed to take a step that it was reasonable to undertake.

(4) There is a difference between acting reasonably and not acting unreasonably. There is usually more than one reasonable course of action open to the employee. The employer needs to show that jobs were available and that it was unreasonable of the employee not to apply for them.

(5) What is reasonable or unreasonable is a matter of fact.

(6) That question is to be determined considering the views and wishes of the claimant as one of the circumstances, but it is the ET's assessment of reasonableness – and not the claimant's – that counts.

(7) The ET is not to apply too demanding a standard to the victim; after all, they are the victim of a wrong and are not to be put on trial as if the losses were their fault; the central cause is the act of the wrongdoer.

(8) The test may be summarised by saying that it is for the wrongdoer to show that the claimant acted unreasonably in failing to mitigate.

(9) In cases in which it might be perfectly reasonable for a claimant to have taken on a better paid job, that fact does not necessarily satisfy the test; it would be important evidence that may assist the ET to conclude that the employee has acted unreasonably, but is not, in itself, sufficient.

[33]We conclude the authorities tell us that the burden of proof regarding a failure to mitigate is on the wrongdoer. A claimant does not have to prove that he or she has mitigated the loss, and tribunals are under no duty to consider the question of mitigation unless the employer raises it explicitly and adduces some evidence of a failure to mitigate.

[34]If evidence as to non-mitigation is not put before the tribunal by the employer, it has no obligation to look for such evidence or to draw inferences. It is not enough for the employer to show that there were other reasonable steps that the employee could have taken but did not take. It must show that the employee acted unreasonably in not taking such steps. Discrimination awards

[35]Injury to feelings awards compensate for non-pecuniary loss. Injury to feelings awards are available where a tribunal has upheld a complaint of discrimination. The award of injury to feelings is intended to compensate the claimant for the anger, distress and upset caused by the unlawful treatment they have received. It is compensatory, not punitive. Cannock

[36]The general principles that apply to assessing an appropriate injury to feelings award have been set out by the EAT in Prison Service v Johnson

[1997] IRLR 162

, para 27: ● Injury to feelings awards are compensatory and should be just to both parties. They should compensate fully without punishing the discriminator. Feelings of indignation at the discriminator’s conduct should not be allowed to inflate the award; ● Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could be seen as the way to untaxed riches; ● Awards should bear some broad general similarity to the range of awards in personal injury cases – not to any particular type of personal injury but to the whole range of such awards; ● Tribunals should take into account the value in everyday life of the sum they have in mind, by reference to purchasing power or by reference to earnings; ● Tribunals should bear in mind the need for public respect for the level of awards made.

[37]In Vento v Chief Constable of West Yorkshire Police (No2)

[2003] IRLR 102

) the Court of Appeal identified three broad bands of compensation for injury to feelings. The Presidents of the Employment Tribunals in England & Wales and Scotland issued ‘Presidential Guidance: Employment Tribunal Awards for Injury to Feelings and Psychiatric Injury Following De Souza v Vinci Construction (UK) Ltd’. These are regularly updated and the relevant bands were £1100 to 11,200, £11,200-£33,700, and £33,700-£56,200.

[38]The claimant must prove the nature of the injury to feelings and its extent. Awards for injury to feelings unrelated to termination of employment are taxfree. Interest is awarded on injury to feelings awards from the date of the act of discrimination complained of until the date on which the tribunal calculates the compensation. The interest rate is 8%. Aggravated damages

[39]These are available in discrimination claims .They are an aspect of injury to feelings, and are awarded only on the basis, and to the extent that the aggravating features have increased the impact of the discriminatory act on the claimant and thus the injury to his or her feelings. They are compensatory, not punitive.

[40]The appropriate acts include: a) ●Where the act is done in an exceptionally upsetting way: Underhill P in Commissioner of Police of the Metropolis v Shaw

UKEAT/0125/11/ZT

cites the phrase ‘high-handed, malicious, insulting or oppressive’ behaviour b) Motive: discriminatory conduct that is evidently based on prejudice or animosity or which is spiteful or vindictive or intended to wound is likely to cause more distress than if done without such a motive – for example as a result of ignorance or insensitivity. Naturally, the claimant has to be aware of the motive in question; and c) Subsequent conduct: for example, conducting the trial in an unnecessarily oppressive manner, failing to apologise, or failing to treat the complaint with the requisite seriousness.

[41]Tribunals must beware the risk of double recovery, and consider whether the overall award of injury to feelings and aggravated damages is proportionate to the totality of the suffering caused to the claimant

Conclusion

[42]The basic award and amount of compensation for wrongful dismissal were agreed between the parties and we are therefore awarding the agreed sums both of which are a simple matter of running undisputed figures through a calculator.

[43]Turning then to the compensatory award. The claimant did provide evidence of mitigation in her witness statement. She gave an explanation as to the job hunt that she had undertaken. She did not give much detail nor did she provide any documentation in support of this. However, we accept the submissions by Mr John that the burden of proof regarding a failure to mitigate is on the wrongdoer i.e. the respondent. The claimant does not have to prove that she has mitigated the loss. Where no evidence as to mitigation is put by before the employment tribunal by the respondent, then the tribunal has no obligation to look for evidence or to draw inferences.

[44]We are entitled to, and indeed must accept the claimant’s evidence that she attempted to mitigate her loss. We also accept Mr John’s submission that the claimant does not have to act reasonably, she simply must not have acted unreasonably. That is a question of fact although it is the tribunal’s assessment of reason list that counts.

[45]We generally accepted the claimant as a credible witness. We cannot find that her albeit limited explanation of attempts to mitigate, which was not challenged in any way by the respondent, can be said to be unreasonable steps. We find that she did therefore take reasonable steps to mitigate her loss.

[46]We therefore award her lost income from the date on which her notice pay would expire until the date of this remedy hearing, that is 47.4 weeks. We have considered future loss. We accept that age may, although it should not be, could be a bar in the employment market. We have also formed a more positive view of her skills than the picture painted in submissions. We found that She has been involved to a significant degree in the running of what was a very successful albeit small company. She has a wide range of skills and experience. Even though the family matter may still be ongoing, that should not prevent her from moving on with her life sand we would anticipate that she should be defined another job at a commensurate level within three months. That is by the end of January to allow for the Christmas downturn in any recruitment market. We are therefore awarding her 12 weeks future loss.

[47]On injury to feelings we were provided with evidence that the claimant takes medication for depression. It was her unchallenged evidence that the cause of this was the respondent and the second respondent. The reference to the respondent relates this to her employment relationship. We also have made findings of fact that there were a relatively large number of acts of discrimination and accept that the claimant was distressed and anxious because of the treatment that she received in the employment context. We have concluded that an appropriate level of injury to feelings would be £12,000.

[48]We are not awarding aggravated damages. We listened carefully to Mr John submissions as to the circumstances in which aggravated damages can be made available and that is where defendants have behaved in a high-handed, malicious, insulting or oppressive manner and committing the act of discrimination. We understand that there is an element of punishment in such aggravated damages. While we have found that the way in which the second respondent acted was at least oppressive and deliberately reporting her to the police certainly insulting, we also take into account the background of the relationship breakdown between the two parties.

[49]It is clear that the second respondent continues to fail to understand the separation between employment relationship and a spousal relationship. He sees it all as a whole. On balance we conclude that his conduct does not take this matter over the line into which aggravated damages would be appropriate.

[50]In any event we are conscious of the issue of double recovery and we consider that the sum already awarded to the claimant is sufficient compensation for the injury to feelings.

[51]In terms of the ACAS uplift. There were many breaches of the grievance procedure which we set out in our written decision. We have taken into account, however, this is a small employer and, despite the significant breaches here feel that an uplift of 10% is more appropriate to reflect the resources of the employer.

[52]As we are making awards on a net basis we consider it appropriate to gross up and have therefore done so. The figures that we have awarded were calculated with the assistance of the claimant’s representative. The respondent’s representative was given an opportunity to challenge and question the methodology those figures. On behalf the respondent he concurred that the figures were calculated correctly and that the methodology was accepted. The figures we have awarded were therefore agreed.

[53]They are a) A basic award of £15,507.80 (weeks this is calculated as 16 weeks x 1.5× £553.85 +4 weeks ×1×553.85.) b) A compensatory award of £ 22,109.73 for loss from 18 December 2023 to 12 November 2024 being 47.4 weeks, together with a compensatory award for 12 weeks future loss being £5,597.40. Taking into account a 10% ACAS uplift and interest the total compensation award is £29,917.40 c) A figure of two weeks’ pay for loss of statutory rights being £932.90 d) 12 weeks’ notice of £5,597.40 e) £15,000 for injury to feelings. Including interest and 10% ACAS uplift this comes a total of £19,428.58. f)