Ms N Lifac v Zoyo Capital Ltd and others: 2302190/2019

EMPLOYMENT TRIBUNALS

Case No 2302190/2019

Between

Ms N LifacClaimant

Zoyo Capital Ltd and othersRespondent

Before

Employment Judge Webster

Mr T Moore (instructed by Counsel) for claimant

Ms S Ismail (instructed by Counsel) for respondent

Date 16 March 2023

JUDGMENT

[1]The Claimant’s claim for unlawful deduction from wages is upheld for the period from 20 February 2019 – 23 July 2019.

[2]The Claimant’s claim for discrimination arising out of disability is upheld in relation to the requirement for her to go off sick between 22 February 2019 and 23 July 2019 is upheld against the First Respondent.

[3]The Claimant’s claim for discrimination arising out of disability is not upheld in relation to the conduct of the 14 March 2019 hearing.

[4]The Claimant’s claim for breach of the duty to make reasonable adjustments was withdrawn at the hearing and is dismissed accordingly.

[5]The Claimant’s claim for direct disability discrimination regarding her being placed on sick leave between 22 February and 23 July 2019 is upheld against the First Respondent.

[6]The Claimant’s claim for direct disability discrimination regarding the comment at the meeting on 14 March 2019 that the Claimant transitioned from contractor to employee in order to set up the 1st respondent and sue them for discrimination since summer 2018 is upheld against the First Respondent.

[7]The remaining direct discrimination claims arising out of the meeting on 14 March 2019 are not upheld. RESERVED WRITTEN REASONS The hearing

[8]The hearing was held by way of CVP with the agreement of all parties. The Tribunal Judge and members were all remote as well as the parties. At the outset of the hearing the Tribunal went through the draft List of Issues that had been agreed between the parties. During discussions with the parties a couple of points were clarified in that the claimant confirmed that the something arising out of her disability that she was relying upon was that the respondent believed she was experiencing a bipolar episode. Further, after the Tribunal had read the papers, the respondent confirmed that it was not questioning the claimant’s disability. During submissions, the claimant’s representative confirmed that he no longer sought to advance the failure to make reasonable adjustments claim. All these amendments are reflected in the List of Issues set out below.

[9]It was agreed that we would not deal with remedy save in relation to the unauthorised deduction from wages claim where the figures were agreed by the parties though liability was disputed.

[10]The Claimant has two separate tribunal claims against the respondent; the one that is decided here and a subsequent claim regarding her dismissal. Although unusual, the claims are being dealt with separately as agreed by a different Judge prior to the hearing. It was in the interests of the overriding objective to proceed as the matters were largely separate and the parties were prepared for the 5 day hearing before this tribunal. To have adjourned at this late date would have put both parties to a huge amount of unnecessary cost and wasted time.

[11]The Tribunal were therefore very clear with the parties that they would only make findings of fact relevant to the issues to be decided before us and not regarding the performance management process and dismissal which followed.

[12]It was agreed that where witness statements or evidence addressed these issues, if they were not cross examined on or challenged, then this ought not to be taken as agreement by the other side that they were true; simply that they were irrelevant to the proceedings at hand. Likewise, this Tribunal would try, insofar as is possible, not to stray into factual conclusions about those processes.

[13]The tribunal heard from the claimant and respondents 2, 3 and 4. All provided written witness statements. We also had a 1047 page bundle to which the respondent added further documents that were produced at a late stage with very little explanation. However due to their relevance the tribunal accepted them.

[14]The evidence and submissions were completed on 19 November and the tribunal carried out its deliberations on 20 November. It was agreed that the tribunal would deal with liability only. The Issues Unlawful Deduction from Wages

[15]What salary was properly payable to the Claimant by the First Respondent on each monthly payment date in respect of the period between 19 February and 23 July 2019, taking into account the Claimant’s state of health (including her mental health) and any information provided to or otherwise available to the First Respondent?

[16]To what extent was the amount actually paid to the Claimant on each monthly payment date in respect of that period less than the amount which was properly payable to the Claimant on that date? Unfavourable Treatment because of Something Arising in Consequence of Disability – s 15 Equality Act 2010

[17]Did the First Respondent’s requirement that the Claimant go on sickness absence from work from 19 February 2019 until 23 July 2019 treat her unfavourably because of something arising in consequence of her disability namely that the respondents believed that she was experiencing a bipolar episode.

[18]If the answer to 16 is yes, in so requiring the Claimant to abstain from work from 19 February 2019, did the First Respondent have a legitimate aim and if so what was that legitimate aim?

[19]Was the requirement to go on sickness absence from 19 February 2019 a proportionate means of achieving that legitimate aim?

[20]Did the First Respondent’s conduct at the without prejudice meeting on 14 March 2019 treat the Claimant unfavourably because of something arising in consequence of a disability namely that the respondents believed that she was experiencing a bipolar episode? The behaviour relied upon is:(i) Refusing the send the claimant for a medical assessment to ascertain if she was fit to work;

(ii) Stating that the Claimant transitioned from contractor to employee in order to set up the 1st respondent and sue them for discrimination since summer 2018.

(iii) Pressuring the claimant to accept a derisory settlement offer by saying that they had uncovered more serious evidence since her 15 February performance review letter

(iv) When discussion did not lead to a successful agreement on settlement terms, by placing the Claimant again on mandatory sick leave, despite the fact she was fit to and well to work, and had supporting evidence from doctors to

[21]If the answer to 19 is yes, did the First Respondent have a legitimate aim and if so what was that legitimate aim?

[22]Was the First Respondent’s conduct at the without prejudice meeting 14 March 2019 a proportionate means of achieving that legitimate aim. Direct Disability Discrimination

[23]Did the First Respondent, because of a disability, treat the Claimant less favourably than the First Respondent would treat others who are non-disabled or have a different disability and whose circumstances are not materially different to the Claimants when:a. placing the Claimant on Statutory Sick Pay from 19 February to 23 July 2019; and

b. By the conduct of the without prejudice meeting 14 March 2019. The behaviour relied upon at the meeting is:

(i) Refusing to the send the claimant for a medical assessment to ascertain if she was fit to work;

(ii) Stating that the Claimant transitioned from contractor to employee in order to set up the 1st respondent and sue them for discrimination since summer 2018.

(iii) Pressuring the claimant to accept a derisory settlement offer by saying that they had uncovered more serious evidence since her 15 February performance review letter

[24]Has either the Second, Third or Fourth Respondent carried out any discriminatory acts against the Claimant under paragraphs 16-22 above that would be treated as having been done by the First Respondent by any of them acting in the course of his or her employment? 25.If the answer to 23 is yes, are either of the Second, Third or Fourth Respondents liable under section 110 of the Equality Act 2010? The Law

[26]s13 Employment Rights Act 1996 — Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision” , in relation to a worker's contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

[27]S 15 Equality Act 2010 - Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 24. S 13 Equality Act 2010 Direct discrimination (1)A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2)If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. (3)If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. Factual findings Overall observations

[28]This was a difficult claim for everyone involved and emotions ran high. We as a tribunal have found it difficult to treat the evidence of any of the witnesses with certainty because, unfortunately, they all appeared to be unreliable witnesses for different reasons.

[29]The respondent witnesses have all taken the situation personally from the outset and have projected onto the claimant a machiavellian plan that is simply not supported by the evidence we saw. In our view their approach is born out of a combination of being a young company with little management experience and a lot at stake and an absolute refusal at almost every stage that we have seen, to accept that they may have made mistakes, or that on occasion, others, including the claimant, may be right. This refusal has turned what could have been a fairly simple situation into a messy one. During cross examination both Mr Powell and Mr Brennan Banks frequently failed to answer simple questions and gave lengthy apparently authoritative answers about areas for which they clearly had no expertise. Despite this they felt that they were right without question. Examples of this include issues relating to the definition and importance of the claimant’s employment status (which they clearly misunderstood and continue to misunderstand) as well as their approach to medical evidence. They also suggested at various points that they had not reviewed the evidence in the bundle properly until this hearing was underway. We do appreciate that they are very busy, however their decision to change their evidence and only disclose very important evidence at a very late stage was unhelpful and did not assist their credibility before us.

[30]However we also note that the claimant has certainly contributed to this messy situation. She frequently wouldn’t answer questions, would say what she wanted to say as opposed to respond to the question she had been asked, and during her evidence before us frequently referred to matters that were irrelevant to the question and had no bearing on the proceedings other than to confuse the answer, or attempt to wrongly malign the respondents. We believe it is more likely than not from the transcripts we have seen that she behaved this way during the pertinent meetings and discussions and conclude and that this in no small way contributed to the defensive attitude of the respondents throughout their subsequent dealings with the claimant. Background

[31]The respondent is a small start-up investment fund. The three individual respondents were directors. There is a fourth director but he played no part in these proceedings or the events we are deciding. As part of the process in setting up such a fund, the claimants needed to get FCA approval. To that end, they employed the claimant who works as a regulatory consultant.

[32]The claimant was diagnosed with bipolar disorder in 2007. The formal diagnosis of the ‘type’ of Bipolar disorder has evolved and the exact diagnosis that was confirmed in 2019 is Bipolar Type II with an underlying hyperthemic personality. In addition she has bipolar mood disorder. She has continued to have that diagnosis until the hearing before us and we believe that it is a lifelong diagnosis according to the medical evidence we saw. The claimant receives treatment for it and is under the care of various consultants.

[33]Part way through his evidence Mr Brennan-Banks changed his case and said that he no longer believed the claimant had bipolar disorder but now believed the opinion of one of the claimant’s consultants that she may have a personality disorder instead. Despite Mr Brennan Banks’ belief in his expertise at diagnosing the claimant despite whilst not having any medical qualifications, his counsel sought to distance her submissions from this and said that they did not seek to derogate from their acceptance that the claimant was disabled by reason of bipolar disorder. We record here that we also conclude that the claimant was disabled for the purposes of the Equality Act 2010 as she has an impairment (namely Bipolar disorder) which has a long-term impact on her ability to carry out day to day activities. Any doubt cast on that diagnosis during the hearing before us was debatable and we suspect a largely irrelevant (to us in terms of assessing whether the claimant has a disability) re-labelling exercise.

[34]There were issues regarding the claimant’s employment status. The respondent wanted to employ her as a self-employed consultant and this is how the role was recruited for via any agency. However, due to the changes brought about by IR20, the claimant was not willing to work as a self-employed contractor as she felt that the tax position was sufficiently uncertain and she had wound up her own personal company which would have enabled such an arrangement. This led to a disagreement with the recruitment agent and to the respondent having to pay a significant fee to the agent because they then entered into an employment contract with the claimant. The respondents were upset about this as the claimant was then the only employee at the first respondent with everyone else working as a consultant. However, the respondent was sufficiently keen at this stage to want to keep the claimant that they agreed to her becoming an employee. At this stage their anger was aimed at the recruitment agent due to the large fee they had to pay.

[35]We accept Ms Wang’s evidence here that their main and overriding aim throughout their dealings with the claimant was to get the company an FCA licence so that they could start trading. Without that approval they could not start earning any money.

[36]During the last quarter of 2018, the claimant started to experience difficulties with one colleague in particular and various grievances were brought. As these facts start to bleed into the reason for the dismissal, we make bare findings regarding these matters here.

[37]The claimant brought a grievance against her colleague. That grievance led to Mr Brennan Banks attempting to organise mediation between the two colleagues. At the mediation, Mr Brennan Banks found the claimant’s behaviour difficult and confrontational. The claimant describes her colleague’s behaviour in the same way. Then, a consultants’ firm also raised concerns about the claimant’s competency to do her role. Mr Brennan Banks started to do an investigation into the claimant’s performance.

[38]The result of that investigation was the letter at page 230 inviting her to a performance review meeting. The letter listed 11 points of concern, had 19 attachments and totalled (from the bundle) 70 pages. The concerns are serious and include issues from her ability to do her job to her communications style and volume as well as her office attendance. It is clear from this letter and the preceding emails and correspondence that the respondents are frustrated by the claimant and very worried about her ability to do the crucial job that they have employed her, at great cost (she was the highest paid individual) to do. In addition they were concerned that she was creating difficult working relationships within the team.

[39]Their concerns were to an extent evidenced in the bundle, in particular the claimant’s voluminous emails and the quite serious allegations she was making about her colleagues including the respondents. One of the concerns that the respondents had was that the claimant seemed to them to be misreporting conversations and exchanges between her and colleagues to the extent that they, according to their evidence to us, had lost trust in the claimant. That lack of trust is evidenced by the fact that they recorded both the meeting on 15 February without her knowledge and the subsequent without prejudice meeting on 14 March 2019. We make no findings as to the veracity of their concerns about the claimant’s ability to do her job as this was not an issue for us to decide today. However, we do think it is appropriate to find that at this stage the respondent did not trust the claimant, had serious and numerous concerns about her ability to do her job and her detrimental impact on relationships within the team. Telephone conversation on 18 Feb between Mr Brennan Banks and the claimant

[40]On 15 February, the respondent decided to invite the claimant to a capability hearing. They provided her with a significant amount of documentation and allegations and asked her to attend a meeting on Tuesday 19th February. That prompted the claimant to call Mr Brennan Banks on Monday 18 February to ask for more time to prepare for the performance review meeting. Mr BrennanBanks made a note of that call at pg 315. We accept that the note was made at the time and recorded what the claimant said to him in note format. It does not (as accepted by Mr Brennan Banks) record much if anything of what he said in return. It is also clearly not a full note of a lengthy and complicated conversation. We do not accept that Mr Brennan Banks went back and created this document some time after as suggested by the claimant. It does miss out various points but that makes it more likely to be a contemporaneous as opposed to a somehow doctored note.

[41]We accept that during this conversation Mr Brennan Banks was largely sympathetic towards the claimant. He has been very open in telling the tribunal that his wife has been diagnosed with a similar condition and we find that his approach to the conversation was to listen to the claimant and find out what was happening as the claimant was expressing serious matters (such as having been catatonic at her daughter’s 18th birthday party) and not having slept for 3 days.

[42]We conclude that during that conversation, the claimant told Mr Brennan-Banks that she was not well and even if that is not the case that it was reasonable for him to believe she was unwell because of what she was saying during the call and how she was expressing it. We reach this conclusion for several reasons.

[43]Firstly, Mr Brennan Banks’ note is clear that she makes reference to being catatonic on her daughter’s 18th birthday talking about having been unwell and the fact that she hasn’t had any sleep for 3 nights and discussed having a hypermanic episode. This is clear from the note and also concurs with the claimant’s evidence on this conversation. Whilst she may have been talking about what can cause an episode as opposed to asserting that she was experiencing one we find it plausible that she was not particularly clear in how she conveyed information about her health at this point. It is also clear that she is discussing her health in relation to the immediate issue of the performance review which was happening the next day, not solely in relation to the events regarding Dr Dunlop in the last quarter of 2018 as she now asserts.

[44]We believe that her intention in telling Mr Brennan Banks about her condition was to obtain more time to respond to the performance review. In effect she was seeking to obtain a ‘reasonable adjustment’ so that she could properly prepare. This was entirely reasonable and plausible in the circumstances. She had not slept for 3 nights and she was explaining to him that in those circumstances, given her illness, she needed more time. We accept however that this was not a straightforward conversation. The claimant’s manner in divulging important information when stressed appeared to be often incoherent and not linear. We believe it is likely that there was no clear delineation between her account of what was happening to her at that time of the conversation and the ill health she had been suffering due to her concerns around Dr Dunlop. We therefore accept that at this time she either said that she was ill or gave Mr Brennan Banks a confusing account of what was happening such that it was reasonable for him to think that she was unwell and was telling him that she could not continue with the performance review and could not come into work at that time i.e. she was too unwell to work.

[45]Our conclusion in this is also supported by the transcript of the without prejudice conversation on 14 March (pg408-459). In that conversation the claimant clearly also discusses that she has been significantly unwell. The fact that she said she could not carry on being at work is confirmed by pg 441. TBB “ You told me you could not work again” C “No that was in the context of what I thought it was a discussion at, about me .. it was a without prejudice discussion… “ TBB “It was not, you know it was not….”

[46]There is further confirmation of the fact that she said she could not come back to work at page 449. “This was a small company and I thought I could cope and I couldn’t.”

[47]In addition, at pg 408 she accepts in the first paragraph that, “When I said that I didn’t think I’d be able to work etc. so just put that as a bookmark.”

[48]Given the way that the claimant has communicated throughout these proceedings and from the complicated way she sometimes communicated during the meetings for which we have been provided with transcripts, we find it more plausible than not that she told Mr Brennan Banks during that call that she was unwell and that Mr Brennan-Banks reasonably concluded that she was too unwell to work.

[49]Further, based on the content of the phone conversation with Mr Brennan Banks, the comments she herself has made about what was said in the conversation at the without prejudice meeting in March and the fact that she went to the GP and was prescribed diazepam all tend to show that the claimant was unwell on 18 February. We accept, that the doctor does not believe she is experiencing a hypermanic episode at this time and that she was not experiencing an exacerbation of her disability, however she is clearly unwell through possible stress and anxiety and definite lack of sleep brought on by the impending performance review. Her husband was clearly worried enough about her that he wanted her to attend the doctor (paragraph 31 of her witness statement). Letter of 22 Feb

[50]On 19 February Ms Wang wrote to the claimant and confirmed that in light of her conversation with Mr Brennan Banks the claimant would be placed on sick leave and receive SSP. (p318). In that letter Ms Wang asks the claimant to let them know when she would be well enough to attend an OH appointment and also to send a doctor’s letter confirming that she has the condition of Bipolar. We find that this letter was sent in good faith with Ms Wang relying on Mr Brennan Banks’ reasonable understanding of the conversation on 18 February.

[51]In response the claimant sent the letter from her GP dated 20 Feb 2019 (pg 322) which confirms her Bipolar diagnosis. The attachments which state that she was well at the time were not sent to the respondent. The letter that was sent does not refer to her health at the time it just confirms her diagnosis which is what the claimant had been asked to do. The attachments however that we have seen, show that the doctor felt she was not unwell on both 18 February and 20 February though we discuss in full the note of 18 February properly below. On 22 February the claimant wrote an email to Mr Brennan Banks saying as follows: “During our phone conversation between you and I on Monday I did not say or imply that I considered myself unfit to work (i.e. I did not self-certify myself as sick). I have not declared myself to you or others at you as unfit to work before or since that call. Further I did not state or imply to you that my doctor and I discussed my current fitness to work nor implied or stated that the doctor stated that I was unfit to work or that she issued a sick note. As you will recall my reasons for calling you was simply to request more time to prepare my response to the allegations made by the company regarding poor performance and dishonesty, as at the time of the call (mid morning) I had been unable to even start preparing the formal response due that afternoon having been deeply upset over the weekend about my treatment and unable to sleep for three consecutive nights in connection with the matter.”

[52]This clear communication is backed up by the doctor’s record that she was not, when she sent the email, unwell.

[53]However, we accept that this is a temporary situation and that by the time the claimant writes the letter on 22 February, we have no evidence to suggest that she is not well enough to attend work even if she as unwell on 18 February. The doctor’s note on 20 February does not suggest any continuation of the symptoms complained of on 18 February and it is clear that she remains well.

[54]We therefore consider that although it is reasonable to conclude that the claimant was stressed at this time and possibly very anxious, there is no medical or other evidence to suggest that the claimant was so unwell she could not work.

[55]We accept that the letter was a clear indication that the respondent wanted the claimant to attend an OH appointment. Whilst we accept that the claimant’s response on 22 February does not expressly deal with this point, we accept that in the circumstances it was reasonable for her not respond to that point in particular because she felt that the most pressing issue was to correct any misconception that she was in fact so unwell she could not work . Events leading up to the without prejudice meeting on 14 March

[56]Subsequently the respondent sent the letter dated 25 February reiterating that they thought she should remain on sick leave and saying that they wanted her to see an OH specialist and asking her to get in touch when she was ready to do that.

[57]The claimant called the respondent on 27 February and spoke to Mr Powell. There is a huge dispute as to what was said during that call but Mr Powell accepted in evidence before the tribunal that the claimant had said she would be willing to go to an OH doctor during that conversation. No action was taken by the respondents to organise an appointment at that time.

[58]A note of this conversation was disclosed late to the tribunal. The explanation received was that Mr Powell had not noticed that this key document was not in the bundle because he was very busy. We find that Mr Powell’s approach to these proceedings was disappointing. Further, Mr Brennan Banks, when originally questioned about this meeting said he had not been a participant despite knowing that he had been in the room with Mr Powell whilst he was having that conversation and that Mr Brennan Banks wrote the note of the conversation that we now have. Whilst he did not lie, his answer was at best equivocal and certainly unhelpful to the tribunal.

[59]Mr Powell states that because of the claimant’s very personal disclosures in the call (which were very upsetting and need not be repeated here), he believed that the claimant was unwell and that he could not let her return to work. We accept that he believed that she was unwell but he had no medical evidence on which to base this and he did not take the claimant up on her offer to see an OH specialist during this conversation.

[60]We conclude that the claimant was not referred to OH at this time because on 1 March the claimant emailed the respondents stating that she was willing to enter into a without prejudice conversation and also saying that she would be happy to attend an OH meeting beforehand if they wanted to.

[61]They responded on 5 March stating that they were willing to have the without prejudice meeting with her on the basis that she confirms she is well enough to attend and carry out that meeting. By doing this. they unequivocally waive the need for her to see an OH whilst they are having without prejudice discussions.

[62]We make the following observations on this situation:(i) There is no criticism from the tribunal that the parties agree to the without prejudice meeting and hope to try and sort it out that way. We find that both parties entered into that situation in good faith.

(ii) It follows then that it was agreed in good faith that any referral to an OH doctor to assess her ability to return to work was unnecessary at this stage. It made commercial sense for the respondent to avoid unnecessary costs and it meant the claimant did not have to go through the process of seeing another health professional. Both agreed to this course of action.

(iii) We conclude that the respondent at this stage trusted the claimant’s own diagnosis of her health enough that they allowed her to attend this meeting. The respondent appeared at the hearing to feel that they were entitled to have made a blanket decision about the claimant’s health that if she was not well enough to go through a performance review she was therefore not well enough to attend work. However, they were also willing to accept that she was well enough to go through a different difficult meeting because she said so. Further they have held up her behaviour at this meeting (robust and fully able to engage with them) as proof that it was acceptable for them to speak to her in the way that they did (discussed below) and to waive the need for her to see an OH doctor before attending the meeting. We accept that the claimant was well enough to attend the meeting and that the respondent considered this to be the case at the time.

(iv) We find that the respondent waived any contractual requirement for the claimant to attend the OH before being paid by saying in the 5 March email that the claimant did not have to see an OH specialist at this time. Without prejudice meeting – 14 March 2019

[63]There was a full transcript of the meeting in the bundle and we base our findings about this meeting primarily on that transcript. This was a meeting of many phases. There were parts that were civil and constructive, other parts that degenerated into threats and inappropriate behaviour on both sides.

[64]A general observation of the claimant’s behaviour during this meeting was that it fluctuated. We consider that she had a list (possibly not a physical one) of claims that she had either been advised she may have or thought she may have and possible financial values attached to those claims. Unfortunately, she started the meeting by telling the respondents that she had legal claims against them and that the purpose of the meeting was to avoid those claims. She also clearly told them that she had significant amounts of legal insurance to cover her if she did need to bring those claims. It is not clear what the purpose of these two statements would be save to indicate to the respondent that she was serious about enforcing her rights whatever those rights may be. Essentially, she was willing to enforce what she believed to be her rights if a resolution could not be found. However, the way in which she subsequently articulated her possible claims, their possible origins and their possible values was confused and not very linear for much of the meeting. She kept talking about seemingly irrelevant matters and had to keep being brought back to the point of the meeting by the respondents. We accept that it may have been a frustrating meeting for the respondents in that regard. However, we conclude that despite this behaviour, her genuine aim in the meeting was to obtain a settlement and leave the respondent.

[65]A general observation of the respondents is that they started the meeting hoping to that they could ensure that the claimant left without the need to go through the formal capability process that they were about to embark upon. That was a very attractive proposition to them. They did not approach this as a meeting with a potentially vulnerable unwell individual who is having a bipolar episode, but as a meeting with an adversary who they were convinced was somehow out to sabotage their business. This is evidenced by the fact that they recorded the meeting without telling the claimant and they all three attended the meeting. Despite this behaviour, we consider that their genuine aim at the beginning of the meeting was to try to obtain settlement.

[66]The meeting degenerated at various stages. We have described above why we think that the claimant’s initial starting point for the meeting was unhelpful and resulted in a very defensive attitude from the respondents. However, we make no criticism of any of the parties for the conversations they had about the possible value of any settlement and whether they were or were not willing to accept or settle a discrimination claim which the respondents disputed. That was, after all, the purpose of the meeting even if it wasn’t what was achieved.

[67]We do not find that the respondent put pressure on the claimant to accept a derisory offer when she was not actually offered a specific sum of money at the meeting nor expected to give them a decision that day or for several weeks thereafter. The reference to additional performance shortcomings/allegations whilst unsettling for the claimant was no more than part of the general discussion between them about possible claims and their possible strengths and weaknesses – i.e. both parties set out what they felt were their relative bargaining positions albeit that the claimant says that she felt it was threatening at the time.

[68]Likewise, we find that whether or not the claimant left as a result of the negotiations was part of the discussion. We accept that there was some ‘brinkmanship’ in operation as to who was going to agree/suggest that the claimant left as part of the deal. However, it was clearly in both parties’ minds that the claimant would leave – we understand the nuance of the claimant not being seen to be resigning or too keen to leave because of the value attached to that, but it was a bargaining position, not a threat that the claimant was definitely going to be dismissed.

[69]We move on then to specifics of the allegations against the respondent that are included in the claim and/or that we were taken to in evidence by both counsel.

[70]We conclude that the respondent did accuse the claimant of withholding her bipolar diagnosis at least partly in order to set them up by becoming an employee. The respondents believed at the time that by becoming an employee the claimant had gained additional rights in respect of discrimination claims. The premise for their accusation was that she had become an employee without telling them about her condition just so that she could bring a claim against them once she had disclosed her condition. The tribunal concludes that this was an objectively offensive thing to say to someone in the circumstances. They were accusing her of lying or deceitfully withholding information when all she was doing was not telling them about her health condition. At the meeting Ms Wang also raises that they felt set up and uses the terminology of ‘playing games’ as if the claimant was using her health to set the respondent up.

[71]Our findings in this respect are reinforced and compounded by the fact that the second and third respondents reiterated their allegations before the tribunal despite having had advice from lawyers who have no doubt told their clients that all workers are protected against disability discrimination not just employees. Mr Powell maintained that he believes that the claimant had a moral obligation to disclose her condition to them. To what end it is not clear. It is worth noting that his behaviour towards her would seemingly reinforce why most people with disabilities choose not to disclose them to their employers unless they have to. The claimant was under no obligation to disclose to them that she had bipolar. She chose to do so in order to obtain reasonable adjustments to a disciplinary process. Their anger at her for not doing so coloured their approach to her thereafter. Mr Powell’s anger before the tribunal was palpable and we consider that it was likely that he behaved in a similarly aggressive way at the meeting with the claimant. His comment that ‘nobody fucks with Zoyo’ was clearly aimed at the claimant given that she had mentioned possible claims against the respondent. He was angry and he showed it. This was not, as he has stated, just a repeat of a comment he made to the whole team about a third party. It was made in a context whereby it could only have been aimed at the claimant given that she was referring to legal action against them. Occupational Health referral/report

[72]We don’t think that there was any delay from anyone once the settlement discussions had collapsed. There was no delay in referring the claimant to OH nor by the claimant in actually attending the appointment.

[73]Much was made of the claimant’s amendments to the subsequent OH report. However, the delay was only 10 days and it is the right of the claimant to consider the report and suggest amendments. We do not accept the respondents’ evidence that indicated that this made the report unreliable or incorrect. This was their choice of OH doctor and he concluded unequivocally that the claimant was fit to work and had been fit for the previous 6 months. We were not provided with evidence to question this doctor’s professionalism and had he disagreed with the claimant’s amendments we are sure he would have said so and not signed the report in his name. We make the same observations in respect of all the medical evidence we were provided with in this case. Whilst we accept that it is common for GPs to have to rely on the facts as presented to them by their patients, we do not accept that this means that they would falsely say that someone was fit to work when they were not. To suggest such unprofessionalism across 5 different doctors shows the level of general disregard for other peoples’ opinions that the respondents had in general. Conclusions Unauthorised deduction from wages

[74]We uphold the claimant’s unauthorised deduction from wages claim because there is clear evidence that she was well enough to work from 20 February 2019 and no contractual right for the respondent to cease paying her in those circumstances.

[75]The claimant’s contract of employment states at clause 11 that: “11.1 You will be entitled to SSP subject to and in accordance with the statutory rules. Your qualifying days of employment for the purposes of SSP are Monday to Friday. Any additional sick pay paid to you by the Company will be entirely at the Company’s discretion. 11.2 You agree to consent to medical examinations (at the Company’s expense) by a doctor nominated by the Company should the Company so require.”

[76]We have concluded that the claimant was not sick from 20 February onwards. She was therefore not entitled to SSP because she was not unwell in accordance with the statutory scheme.

[77]We also conclude that she agreed to medical examinations by the respondent’s doctor but in any event, payment of any kind was not conditional on that agreement. Such conditionality is entirely absent from this clause and cannot be inferred or implied from any aspect of the contract.

[78]The claimant’s contract of employment does not allow for non-payment of her wages in any other relevant clause.

[79]We considered the two cases that both the claimant and respondent took us to namely Agarwal v Cardiff University & Anor

[2018] EWCA Civ 1434

and Beveridge v KLM UK Ltd

UKEAT/1044/99

[80]Beveridge concluded that if an employee is willing and able to perform work in accordance with the contract, the employer has an obligation to page wages unless there is a contractual right not to do so. We have concluded that from 20 February the claimant was fit and able to carry out her work. She indicated this very clearly in her letter dated 22 February and the medical evidence we have unequivocally confirms that she was fit to work on 20 February and thereafter. The expert reports thereafter all confirm that she had not recently had a bipolar episode and this includes the respondents’ own occupational health report.

[81]Counsel for the respondent submitted that they had two conflicting accounts – that of the conversation that Mr Brennan Banks had with the claimant on 18 February and the email from the claimant. This was also reinforced by Mr Powell’s conversation with her on 27 February. She stated that the respondents remained sufficiently concerned and that as an inexperienced employer all they could do was to follow their process and understand their contractual position.

[82]However, we find that they did not follow their process or their contractual position. There was nothing in the contract that allowed them to unilaterally remove someone from the workplace without pay because they thought she might be unwell. We do not doubt that on some occasions this may be appropriate pending the outcome of an occupational health opinion as to whether it was safe for someone to be in the workplace. However, where that person is not agreeing that they are unwell and they are expressly saying that they are well enough to work, it cannot be that the employer has the power to reduce their wages without any medical evidence to base their decision on particularly in the absence of a contractual clause which expressly sets this out. Had they suspended her on full pay pending the outcome of an OH report then it is unlikely that they would have breached the contract. We do not accept that clause 11.2 implies that SSP is payable unless and until the claimant is certified as well by an OH doctor. The clause does not say this and it simply cannot be right. If that was the case then in theory, an employer could stop paying an employee for a potentially indefinite period of time whilst it arranged or even failed to arrange an OH appointment.

[83]The respondent stated that if we applied Agarwal we could conclude that C was ready and willing to attend work but not able as she was required to be assessed by a doctor nominated by R. Firstly Clause 11 does not say this or make any pay whether it be statutory or anything else, conditional on a medical examination. It simply states that if required an employee will submit to a medical examination – which the claimant does. Secondly, all the available medical evidence shows that she was able to work.

[84]We conclude that the claimant was not well between 18-20 February as the medical evidence on this is equivocal and the claimant has accepted that she had not slept for 3 days and was prescribed diazepam. The note of 20 February concludes that her symptoms have not recurred thus indicating that she had been unwell beforehand. S 15 Disability discrimination claim

[85]In Basildon & Thurrock NHS Foundation Trust v Weerasinghe

UKEAT/0397/14

, it was held that there were two distinct steps to the test to be applied by tribunals in determining whether discrimination arising from disability has occurred:(i) Did the claimant's disability cause, have the consequence of, or result in, "something"?

(ii) Did the employer treat the claimant unfavourably because of that "something"?

[86]In Pnaiser v NHS England and another

[2016] IRLR 170

the EAT summarised the proper approach to claims for discrimination arising from disability as follows:(i) The tribunal must identify whether the claimant was treated unfavourably and by whom

(ii) It then has to determine what caused that treatment, focusing on the reason in the mind of the alleged discriminator, possibly requiring examination of the conscious or unconscious thought processes of that person, but keeping in mind that the motive of the alleged discriminator in acting as he or she did is irrelevant

(iii) The tribunal must then determine whether the reason was "something arising in consequence of [the claimant's] disability", which could describe a range of causal links. That stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator

(iv) The knowledge required is of the disability; not knowledge that the "something" leading to the unfavourable treatment was a consequence of the disability

[87]We conclude that Mr Brennan Banks placed the claimant on sick leave because he believed that she was suffering from a bipolar episode on 18 February during the phone call and he felt that it was in her best interests to do so at that time. The fact that the claimant has Bipolar gave rise to the respondents’ mistaken belief that she was having a bipolar episode.

[88]The claimant has accepted that if the decision to place her on sick leave was for her health and safety then it follows that it was a proportionate means of achieving a legitimate aim. Therefore, at this stage the claim must fail as the respondent has justified their decision.

[89]However, once the respondent had notification from firstly the claimant that she well enough to work and then her GP confirming this, they refused to believe that information and continued to keep her on sick leave which is unfavourable treatment particularly given the lack of pay but also because she was being removed from the work place.

[90]The cause of that treatment is accepted by the respondents as being that they believed she was unwell and suffering from a bipolar episode. This can only really be caused by the fact that the claimant had told them that she was diagnosed with a Bipolar disorder.

[91]The issue for the tribunal then is whether the treatment was a proportionate means of achieving a legitimate aim.

[92]In submissions Mr Moore made the following points with which we agree. The decision to continue to have the claimant on sick leave must remain proportionate throughout the period from February to July. The first point at which it could be said to be disproportionate is her email on 22 February. This is then reinforced by her sending a doctor’s note on 18 March which indicates that at not point had she had a manic episode or that there was any sign that she had had a manic episode. Further the claimant clearly verbally agrees during her conversation with Mr Powell that she is happy to go and see an OH doctor of their choosing – which they do not arrange. Instead they choose to disbelieve her medical evidence but fail to obtain their own and continue to keep her on sick leave. They clearly do not believe that she remains so unwell that she cannot attend a meeting by the fact that they agree to the without prejudice meeting and in so doing waive their need to have her see an OH doctor.

[93]We conclude that the failure to trust the claimant’s assessment of her own health arises from the fact that they believed she was suffering from a bipolar episode. That they had little or no understanding of what that meant for the claimant, how long it may last, and what impact it might have on her ability to work. These were not questions that they troubled themselves with. They had made a decision on 19 February based on a conversation on 18 February and refused to revisit that decision despite the claimant’s insistence that she was well and the medical evidence that confirmed it. No plausible reason other than that they believed she was or had suffered from a bipolar episode was put forward by the respondent to explain their insistence that she remain on sick leave and therefore only receive SSP. Therefore, once that ‘diagnosis’ was no longer true, then they no longer had a legitimate aim. Certainly, keeping the claimant on sick leave without pay is not a proportionate means of keeping the claimant out of the work place. If, as they say, they had legitimate concerns about the claimant’s ability to do her job, they cannot justify her removal from the business without pay as proportionate. Weighing up the reasonable needs of the business against the discriminatory effect on the employee (Land Registry v Houghton and others

UKEAT/0149/14

we do not consider the actions of the respondents proportionate.

[94]Given that they had medical evidence and the claimant’s own evidence to substantiate that they were wrong in their own diagnosis of the claimant and then subsequently had that position confirmed by their own OH doctor who stated that she had not been unwell for the duration of her absence, they still failed to give her back pay her for that period.

[95]They were happy to have a difficult without prejudice meeting with her, but not allow her to return to work. The situation can no longer be justified as a proportionate means of achieving a legitimate aim because their aim is not to protect the claimant’s health and safety, but to keep her out of the workplace and not have to pay her whilst she was not working for them. Even if they did have a legitimate aim, their approach was not proportionate. They accepted she was well enough to attend the without prejudice meeting on 14 March which would indicate that they no longer believed that she was too unwell to work. Even if we are wrong on that, they had clear medical evidence in the form of her GP note on 18 March 2019, which they had no justifiable reason to disbelieve. From that point on, their insistence that she remain off sick and therefore on SSP, was no longer proportionate. We therefore uphold this part of the claimant’s claim.

[96]The behaviour relied upon by the claimant as discriminatory at the meeting of 14 March is:(i) Refusing the send the claimant for a medical assessment to ascertain if she was fit to work;

(ii) Stating that the claimant transitioned from contractor to employee in order to set up the 1st respondent and sue them for discrimination since summer 2018.

(iii) Pressuring the claimant to accept a derisory settlement offer by saying that they had uncovered more serious evidence since her 15 February performance review letter

[97]We have concluded that the respondents did not refuse to send the claimant for a medical assessment. We accept that the process was paused from 1 March with both parties’ agreement to enable settlement conversations to continue. The fact that we find that requiring the claimant to remain on sick leave for this period is not proportionate, does not mean that we think that they refused to send the claimant to an OH doctor at this time. We accept that the referrals process was paused. This is demonstrated by the fact that shortly after the settlement talks collapsed, they referred the claimant to an OH appointment.

[98]We have also found that the respondents did not pressurise the claimant to accept a derisory offer in that meeting.

[99]We believe that point (iv) is covered in our findings regarding the continued requirement that the claimant remain on sick leave from 18 March onwards.

[100]We turn then to point (iii) above and the comment that the Claimant transitioned from contractor to employee in order to set up the 1st respondent and sue them for discrimination since summer 2018. This comment shows the level of anger that the respondents were feeling at this time. However, they are not angry because they believed she was suffering a bipolar episode – the something arising that the claimant’s representative relies upon. They are angry because they mistakenly believe that they have been ‘set up’ when the claimant asked to be classed as an employee not a self-employed consultant. We are not justifying their anger, but it is not caused by their belief that she is suffering from a bipolar episode, it is caused by a combination of the claimant’s mention of legal action in the meeting and the fact that they want to dismiss the claimant for poor performance but now feel temporarily unable to do so because of the claimant’s disclosure about her condition. Their belief in her level of under performance at this stage was incredibly upsetting to the respondents. Ms Wang’s evidence was that they had relied upon the claimant to get the licence and now believed that her work to date had frustrated that process as opposed to enabled it. We make no comment on whether her understanding of the claimant’s performance was correct – that is for the later claim – but we do accept that they had genuine feelings of anxiety and frustration that the whole situation was stalling the business’s ability to progress.

[101]This is not a claim for victimisation under s 27 Equality Act 2010, the claimant must establish that the treatment arises from the respondent’s belief that she is suffering a bipolar episode and we conclude that this was not a contributory factor in this comment. We therefore do not uphold this part of the claim. Direct Disability Discrimination – s13 Equality Act 2010

[102]The claimant relies upon the same acts for s 15 as she does for her direct discrimination claim.

[103]We accept that in respect of the decision to place the claimant on sick leave, the claimant has established a prima facie case that shifts the burden of proof to the respondent to establish a non-discriminatory reason (Shamoon). This is because, on finding out that an employee has been diagnosed with a disability, they remove her from the work place. The appropriate comparator is a senior executive employee facing performance related concerns and asking for more time to prepare for the disciplinary hearing due to stress and anxiety.

[104]We conclude that the original decision to place her on sick leave was not less favourable treatment. Had such a comparator told Mr Brennan Banks they were extremely stressed and not sleeping and needed more time to prepare for the performance review, we believe that Mr Brennan Banks would have made the same decision and said that they should be on sick leave. However, from the 22 February onwards, if the comparator were to clearly, coherently and logically state in writing that she is in fact well enough to work and had only been asking for more time to prepare, we conclude that the respondent would have believed the claimant and allowed her to return to work.

[105]The respondent witnesses kept stating that all they wanted was for the claimant to come back to work and not to drag this situation out because they wanted to go through with the performance review process. We think that this would have happened had the respondent not known that the claimant had bipolar and therefore disbelieved her own account of her health. There may still have been conversations about settlement and an agreed exit – but we do not believe that the respondent would have continued to insist that someone who was not bipolar, who was in exactly the same situation, was unwell and unable to work. We therefore uphold this part of the claimant’s claim.

[106]With regard to the treatment in the meeting. We again accept that taken in the round the claimant has established a prima facie case that shifts the burden of proof to the respondent needing to establish a non-discriminatory reason for the treatment. As in our conclusions for the s15 claim, we have found as findings of fact that points (i) and (iii) did not in fact occur and we have dealt with (iv) above.

[107]We have carefully considered the test in Nagarajan v London Regional Transport

[1999] IRLR 572

and our obligation to consider what was the respondent’s conscious or subconscious reason for treating B less favourably. This is necessarily subjective process. (Igen v Wong

[2005] IRLR 258

). We have also considered the fact that the discriminatory reason need not be the sole or even principal reason for the respondent’s actions; it only needs to have had "a significant influence on the outcome" (Owen & Briggs v James

[1982] IRLR 502

(CA) and Nagarajan. For direct discrimination to occur, the relevant 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" (paragraph 3.11, EHRC Employment Code and paragraph 4.12, EHRC Services Code).

[108]Turning then to (ii) and the comment about the claimant having hidden her diagnosis in order to become an employee and then sue the respondent. The comment itself was made by Mr Brennan Banks (p437) but he was part of a wider conversation about the claimant playing games and comments by all three of the individual respondents about the claimant ‘playing games’ and generally setting the respondent up. We the tribunal have found it difficult to reach a conclusion on this matter. We find that the overarching reason for the respondents’ comments were their belief in her poor performance, that they had had to pay their recruitment consultant a lot of money for her to become an employee and their perception at the meeting that she was threatening the first respondent with legal action.

[109]Whilst we believe that any underperforming senior executive doing something similar would have incurred their anger and frustration, we also find that the claimant’s disability must have played some part in the respondents’ thinking. This conclusion is based on the fact that they mention her withholding the diagnoses in the comment itself and because in evidence Mr Powell clearly felt that the claimant ought to have disclosed her health to them before she got the job and was angry with her for not doing so. Therefore the feelings of anger which we have found displayed at the meeting were in part motivated by the claimant’s disability. On a conscious level the respondent refers to it in the comment itself and on a subconscious level, the anger from all three individual respondents about it is clear at the meeting and before us at the hearing.

[110]A senior executive in exactly the same position without a disability would not have had anything to withhold or disclose thus not giving rise to the respondents’ sense of subterfuge or deceit by the claimant. The fact that she was disabled and chose not to initially divulge this information at least in part caused the angry comment by the respondent and caused them to believe that she had been planning some sort of legal action all along. In our view, a nondisabled senior executive would not have been treated in the same way and would not have such an allegation of deceit made against them because they would not have had anything to withhold. Personal Responsibility

[111]We find that the decision to keep the claimant on sick leave after either 30 February or 18 March was an ongoing situation that was not made by any one of the individual respondents. We consider that the placing of the claimant on sick leave was done collectively on behalf of the first respondent as opposed to being a single decision by any one or all of respondents 2, 3 or 4.

[112]We have considered the comment made at the meeting. Whilst it was said by Mr Brennan Banks it was in a context where all 3 individual respondents were discussing the situation and the claimant’s disability. They purpose of the meeting was for the three individual respondents to act collectively on behalf of the first respondent and attempt to negotiate on behalf of the First respondent not themselves.

[113]We therefore consider that the appropriate liability for the discrimination claims is the first respondent on the basis that it is difficult to ascertain who within the 3 individual respondents drove the behaviour. All actions taken by them were on behalf of the first respondent and the first respondent does not seek to rely upon the statutory defence. The discrimination claims are therefore upheld against the First respondent. REMEDY JUDGMENT

[1]The First Respondent is ordered to pay the Claimant the sum of £97,943.61 in respect of her unauthorised deduction from wages claim.

[2]The Claimant’s position regarding any remedy for her discrimination claims is reserved pending the outcome of Case 2204905/2019.

REASONS

[3]It was agreed at the liability hearing and confirmed before me today, that the issue of whether an injury to feelings award or damages for any of the upheld discrimination claims would be made was reserved until the determination of Claim 2204905/2019. This was also recorded in my notes of the original hearing.

[4]Save for the issue of interest, the sums to be awarded had been agreed between the parties before the hearing as being the compensation owed for the claimant’s unauthorised deduction from wages claim. At the hearing I confirmed with the parties that the figures remained agreed.

[5]The sums agreed were described as being ‘unauthorised deductions from wages’ and this was agreed between the parties. It was also the label on all the relevant Schedules of Loss provided by the claimant. Towards the end of the hearing, after the interest calculations had been made, Mr Brennan-Banks questioned whether Judgment for these sums would be made against the First Respondent or all four respondents following our reconsideration Judgment (which will be issued separately but in which the Tribunal found that it had erred in only upholding the discrimination claims against the First Respondent as opposed to all four respondents). I replied that it would be made against all 4 respondents given that following our reconsideration, the claim for discrimination had been upheld against all 4 respondents jointly and severally. Mr Heard did not make any comment at that point.

[6]However, on writing this Judgment, it became clear to me that I had misspoken when answering Mr Brennan-Banks question. What had been agreed between the parties was an award of compensation or damages only for the unauthorised deduction from wages claim only. This ties in with the agreement by the Tribunal at the liability hearing and the Tribunal was reminded of it again at the outset of the hearing today. For reference, the updated schedule of loss states: “SCHEDULE OF LOSS FOR WAGES ONLY REMEDY FOR DISCRIMINATION CLAIMS TO BE DEALT WITH AT CONCLUSION OF SECOND CLAIM (CLAIM NUMBER: 2204905/2019)”

[7]There was no indication or statement by the claimant or her representative that the unauthorised deduction from wages claim was sought as damages under the Equality Act 2010. It was pleaded and determined as a separate head of claim at the liability hearing and in the liability judgment and our role today was to award the agreed damages for that claim only.

[8]Under the Employment Rights Act 1996, unauthorised deduction from wages claims can only be upheld against the employer i.e. the First Respondent. This is in accordance with s24 Employment Rights Act. s24. Determination of complaints. (1) Where a tribunal finds a complaint under section 23 well-founded, it shall make a declaration to that effect and shall order the employer— (a) in the case of a complaint under section 23(1)(a), to pay to the worker the amount of any deduction made in contravention of section 13,

[9]I therefore misspoke in the course of the hearing by stating that the unauthorised deduction from wages claim would be payable by all four respondents. I consider in any event that this written Judgment reflects the position as understood by the parties and records the correct legal position as to who is liable for payment of the damages payable for the unauthorised deduction from wages.

[10]Respondents 2-4 can only be held jointly and severally liable for any award made under the Equality Act 2010. For those reasons, the sums agreed between the parties below are only payable by the First Respondent.

[11]As this means that interest is payable from 20 February 2019 as opposed to 22 February 2022 (the date of any act of discrimination), the Tribunal has recalculated the interest payable to account for that 2 day difference. The sum of £91,011.54 was agreed between the parties. The interest calculations, save for the addition of the 2 days, were also agreed at the hearing. Unlawful deduction from wages £91,011.54 Interest on unlawful deductions from wages (calculated at 8% on £51,722.32 for 611.5 days which is the midpoint between 20 February 2020 and 28 June 2022) £6932.07 TOTAL PAYABLE IN RESPECT OF UNAUTHORISED DEDUCTION FROM WAGES CLAIM: £97,943.61 RECONSIDERATION JUDGMENT

[1]The Claimant’s application for reconsideration dated 11 January 2021 is allowed.

[2]The liability Judgment dated 17 December 2020 is varied so that the upheld claims for discrimination under the Equality Act 2010 are recorded as upheld against all four respondents jointly and severally.

[3]The claimant brought claims for direct disability discrimination, discrimination arising out of disability, failure to make reasonable adjustments and unauthorised deduction from wages. The discrimination claims were pursued against all four respondents.

[4]The liability Judgment upheld the following claims against the first respondent only:(i) unauthorised deduction from wages,

(ii) a claim for disability discrimination arising out of disability in relation to the requirement for her to go off sick between 22 February 2019 and 23 July 2019,

(iii) a claim for direct disability discrimination regarding her being placed on sick leave between 22 February and 23 July 2019

(iv) a claim for direct disability discrimination regarding a comment in a meeting on 14 March 2019 that the claimant transitioned from contractor to employee in orer to set up the 1st respondent and sue them for discrimination since summer 2018. The claimant’s remaining discrimination claims were not upheld.

[5]The factual conclusions made by the Tribunal found that the three individual respondents were all involved in the decision making which led to the claimant’s claims yet the Tribunal concluded that they should not be found jointly and severally liable on the basis that it could not determine which individual had driven the behaviour or the decisions.

[6]A reserved liability Judgment dated 17 December 2020 and sent to the parties on 29 December 2020 upheld some of the Claimant’s claims against the First Respondent (R1).

[7]By letter dated 11 January 2021 the claimant applied for a reconsideration of the Tribunal’s decision solely in respect of the decision to only uphold the claimant’s disability discrimination claims against R1 as opposed to the second, third and fourth respondents. An appeal on the same grounds was lodged with the EAT. That has been stayed pending this reconsideration.

[8]The respondents’ views were sought in relation to the claimant’s application. On receipt of these, EJ Webster ordered that the matter be considered at a hearing. That was today’s hearing.

[9]Oral reasons were given at the hearing and the respondents have asked for written reasons. They stated their intention to appeal.

[10]Although Mr Brennan Banks is a barrister he explained that he is not an employment law expert and the Tribunal agreed that in order to place the parties on an equal footing we would consider him as a litigant in person.

Relevant Law

[11]Rule 70 of Schedule 1, The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (‘The Rules’) states that a Tribunal can reconsider its own judgment where it is necessary and in the interests of justice to do so. “A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”

[12]Rule 72 of the Rules states(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.

(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.

[13]Mr Heard provided written submissions. In summary, Mr Heard stated that it was in the interests of justice for the tribunal to vary its original decision because it had made a legal error in only finding the first respondent liable for the discrimination. He stated that the Tribunal had not appropriately considered the case of Hackney London Borough Council v Sivanandan

[2011] ICR 1374

. He quoted the following passages which are most pertinent to the current case though the Tribunal read the entirety of the Judgment and the Court of Appeal’s Judgment on the same matter. On appeal the EAT (Underhill J) summarised the law (§16):(1) Where the same, ‘indivisible’, damage is done to a claimant by concurrent tortfeasors – ie either tortfeasors who are liable for the same act (joint tortfeasors) or tortfeasors who separately contribute to the same damage – each is liable for the whole of that damage. As between any particular tortfeasor and the claimant no question of apportionment arises…

(2) It is obviously potentially unjust that a single tortfeasor may find himself responsible to the claimant for the entirety of damage for which others may also be liable or to which they may have contributed. That issue is addressed (in England and Wales) by the provisions of the 1978 Act. [Civil Liability (Contribution) Act 1978] Section 1 of that Act gives any person liable in respect of any damage the right to claim ‘contribution’ from concurrent tortfeasors…It is important to emphasise that while this kind of ‘apportionment’, as it is often described…determines the liability of tortfeasors as between themselves, it has no impact on the liability of any of them to the claimant. The claimant can recover in full against whichever tortfeasor he chooses, and that tortfeasor has the burden of recovery of any contribution from the others, and the risk that they may not be solvent.

(3) The previous two points are concerned with damages which is indivisible. If there is a rational basis for distinguishing the damage caused by tortfeasor A from that caused by tortfeasor B the position is different. (This is the case, for example, where employers contribute at successive stages to the development of a progressive industrial disease, such as deafness.) In such a case the court will hold A and B liable for the claimant for the part only of the damage which is attributable to each of them… “

[14]Mr Heard’s written submissions went on as follows: “24. The discrimination claims were brought against all Rs (R1-R4). It is clear that the Tribunal found that the placing of the discriminatory act of placing Claimant on sick leave was done collectively by R2-R4 on behalf of R1.

[25]As to the subterfuge allegation, it is clear that the Tribunal found that R2 made the comment in a context where R2-R4 were discussing the situation and C’s disability. Clearly, the Tribunal’s finding is that R2-R4 were all involved in that finding of discrimination.

[26]Given the Tribunal’s findings on the discrimination claims it necessarily followed that R2-R4 were personally liable for that discrimination, in addition to R1 who was liable vicariously (R1 did not rely on the reasonable steps defence). There was no legal basis at all on which the Tribunal could find that R2-R4 were not personally liable.

[27]It appears that two considerations operated in the Tribunal’s reasoning when finding that R2-R4 were nor personally liable:a. First was the view that R2-R4 were acting on behalf of R1. Whether R2-R4 were acting on behalf of R1 or not, that consideration is irrelevant to the determination of whether R2-R4 were personally liable. An individual respondent’s motivation about a discriminatory act – whether they were committing that discrimination for reasons related to themselves or on behalf of another – has no bearing on whether that individual is liable for those acts or not. There is no defence to personal liability if R2- R4 were acting on behalf of R1;

b. Second was the view that it was difficult to ascertain which of the three individual respondents drove the behaviour. There is no legal basis upon which a tribunal can find that individual respondents (i.e., R2-R4) are not liable for acts of discrimination because it is difficult to apportion responsibility between them. In such cases a tribunal is obliged to find that liability is joint and several, applying Sivanandan. Any dispute between those named respondents (in this case, R2-R4) as to their respective contribution to that joint and several liability can only be had in the civil courts between themselves. “ 15. Mr Brennan Banks submitted that the Tribunal was not in a position to reconsider our decision as the basis for the application was an error of law and that ought to be considered by the EAT as opposed to by way of reconsideration. 16. He relied upon the EAT case of Liddington v 2gether NHS Foundation Trust. He relied upon paragraphs 34- 35, as set out below.

[34]As he made clear, a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration, and the opportunity for appellate intervention in relation to a refusal to order reconsideration is accordingly limited.

[35]Where, as here, a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application. It seems to me that the Judge was entitled to conclude that reconsideration would not result in a variation or revocation of the decision in this case and that the Judge did not make any error of law in refusing reconsideration accordingly.” 17. Further, Mr Brennan Banks submitted that our decision in the current case could be distinguished from the case of Sivanandan because in that case the Tribunal had already upheld wrong doing against the individual respondents and the question they were considering was joint and several liability not liability per se. In the case before us the Tribunal had made a finding that the individual respondents were not liable and therefore the case did not apply. 18. Having heard these submissions the Tribunal asked for Mr Heard’s response in particular to the point that a reconsideration ought not be used to determine an error of law. He stated that this must be wrong in that it was the very essence of the interests of justice for legal errors to be corrected. Conclusions and Discussion 19. We considered the case law referred to by Mr Brennan Banks in relation to the purpose of a reconsideration hearing. In the case of Trimble v Supertravel Ltd 1982 the EAT found that the tribunal had no jurisdiction to review its decision as the point raised was a major point of law that should be taken on appeal to the EAT. In that case, the EAT agreed that a tribunal’s error as to the nature of the duty to mitigate was usually a matter best dealt with by way of appeal but said that it was clear that the tribunal in this case had reached its finding without allowing the claimant’s solicitor to make submissions on the point. This amounted to a ‘procedural mishap’ that the tribunal should have rectified by granting a review. The EAT made the following observations:(i) it is irrelevant whether a tribunal’s alleged error is major or minor

(ii) what is relevant is whether or not a decision has been reached after a procedural mishap

(iii) since, in the instant case, the tribunal had reached its decision on the point in issue without hearing representations, it would have been appropriate for it to hear argument and to grant the review if satisfied that it had gone wrong if a matter has been ventilated and properly argued, then any error of law falls to be corrected on appeal and not by review. 20. We therefore reverted to our notes of the original hearing. The issue of personal responsibility was flagged in the List of Issues. Ms Ismail on behalf of the respondent in her written submissions said: 71. R1 is C’s employer and R1 placed C on sick leave. No personal liability should attach to Rs 2 to 4. We could find nothing further from her on this point. 21. Our note of what claimant’s counsel, Mr Moore said was “It doesn’t matter if they accept responsibility then it doesn’t mean that the Rs should not be liable.” 22. There was no reference to the case of Sivanandran nor to the liability provisions under s110 Equality Act 2010. 23. Having considered the point raised by Mr Brennan -Banks and the points made in the case of Liddington and Trimble, we nevertheless think that it is in the interests of justice for us to consider the matter as a reconsideration not simply leave it to the EAT. The case of Trimble was decided under the previous ‘Review’ regime and rules whereby a review could only be considered on certain limited and prescribed grounds. Rule 70 has disposed with that requirement, yet it is clear that the case of Liddington still refers to similar requirements. 24. Nevertheless, we conclude that it is right for us to reconsider our decision because the claimant has raised a clear point of law that we were not addressed on correctly at the original hearing. The submissions made to us on this point by the representatives were scant and neither party took us to the case of Sivanandran or the legislation despite raising the matter of ‘personal liability’ in the list of issues. Due to time pressures we had to reserve our decision and reconvene in Chambers to reach our decision. It was only at that point, on reviewing the List of Issues, that it became clear that this was an area of dispute. The evidence and submissions had not suggested that despite the List of Issues being agreed with the parties at the outset. 25. In that instance then, it appears to us that the matter was not ventilated or properly argued by the parties. The Tribunal was not addressed by the parties as to how personal responsibility was to be determined according to the facts of this case. We had no assistance from the parties as to the relevant law despite both being represented throughout. We accept the respondent’s point regarding the need for the finality of justice and the need for parties not to get a second bite of the cherry and relitigate a point. Nevertheless, that is not what has happened here. Here the claimant’s representatives have drawn our attention to a matter that was not properly advanced before us at the hearing that has in turn led to us not having the opportunity to consider a matter properly in light of the law as it stood at the time. 26. We have therefore considered whether, on reconsideration of our Judgment, we ought to vary it or revoke it. To confirm, our original Judgment in respect of the personal liability was found on the basis that Mr Heard sets out at quoted paragraph 27 b above as opposed to his suggested point 27a. To reiterate, paragraph 27b states as follows: b. Second was the view that it was difficult to ascertain which of the three individual respondents drove the behaviour. There is no legal basis upon which a tribunal can find that individual respondents (i.e., R2-R4) are not liable for acts of discrimination because it is difficult to apportion responsibility between them. In such cases a tribunal is obliged to find that liability is joint and several, applying Sivanandan. Any dispute between those named respondents (in this case, R2-R4) as to their respective contribution to that joint and several liability can only be had in the civil courts between themselves. “ 27. We do not accept the respondents’ submissions that the situation is distinguishable from Sivanandran because we had not found the individual respondents personally liable. The respondent relies upon the last 3 paragraphs of our decision which we quote here. Personal Responsibility 111. We find that the decision to keep the claimant on sick leave after either 30 February or 18 March was an ongoing situation that was not made by any one of the individual respondents. We consider that the placing of the claimant on sick leave was done collectively on behalf of the first respondent as opposed to being a single decision by any one or all of respondents 2, 3 or 4. 112. We have considered the comment made at the meeting. Whilst it was said by Mr Brennan Banks it was in a context where all 3 individual respondents were discussing the situation and the claimant’s disability. They purpose of the meeting was for the three individual respondents to act collectively on behalf of the first respondent and attempt to negotiate on behalf of the First respondent not themselves. 113. We therefore consider that the appropriate liability for the discrimination claims is the first respondent on the basis that it is difficult to ascertain who within the 3 individual respondents drove the behaviour. All actions taken by them were on behalf of the first respondent and the first respondent does not seek to rely upon the statutory defence. The discrimination claims are therefore upheld against the First respondent. 28. It is clear from our earlier findings of fact that we found that all three were involved in the decision to keep the claimant on sick leave (albeit in different ways) and all three were involved in the conversation regarding ‘subterfuge’ to keep her condition secret in order to sue them. Our findings regarding personal liability in the last 3 paragraphs also make it very clear that we could not distinguish which of the three was driving the discriminatory behaviour rather than because they were not personally involved or had not personally committed the acts of discrimination. In fact we found the opposite. We found that they were all involved and acted collectively thus making separation difficult. 29. Our interpretation at the time was that this meant that as they were acting collectively and for the purposes of the First respondent, it meant that they ought not to be held personally accountable. We did not find that they had not personally carried out the acts or made the discriminatory decisions. 30. Having now heard the parties’ submissions on this point and considered the case of Sivanandran, we accept that given that discrimination is a tort and that the starting point, as set out in Sivanandran is that the tortfeasors ought to be held jointly and severally liable for tortious acts, we erred in the conclusion that we reached regarding liability. 31. We reached our conclusions based on incorrect grounds namely that because we could not say which individual tortfeasor was responsible for which particular action it therefore meant that none of the individual respondents could be held responsible because apportionment was impossible. Instead we ought to have concluded that all of them were liable because they were named as individual respondents, we found as a finding of fact that they were all involved in the discrimination and whilst it was difficult to determine who drove the discriminatory behaviour this did not mean that they were not liable and they therefore ought to be found jointly and severally liable with the first respondent for the discrimination. 32. For those reasons we vary our original decision and uphold the successful claims of discrimination against the three individual respondents as well as against the first respondent.

Background

[36]The Claimant’s application for reconsideration was made on two main grounds: (i) That the Tribunal had erred on a point of law because EJ Webster had reversed the oral decision thus exceeding the Tribunal’s powers under Rule 72 of the Employment Tribunal Rules (ii) That the reversal relied on errors of fact regarding what had been said and done at the Liability and Remedy hearing

[37]The Claimant stated that the decision to change the liability for the Remedy Judgment from all 4 Respondents to just the First Respondent was in effect a reconsideration of the original oral remedy decision and therefore the Tribunal ought to have sought the views of the parties before reaching its decision and had exceeded its authority in not doing so.

[38]The Claimant stated that there were material factual errors in the Judgment. Those were (in summary):(i) That Mr Heard (claimant’s counsel) had only confirmed at the remedy hearing that any award for Injury to Feelings was being postponed, not any award for losses arising out of discrimination

(ii) That at the original hearing Counsel for the respondent had advocated only for the injury to feelings award to be reserved until the determination of the second claim and that EJ Webster had stated that this was also due to the fact that insufficient evidence had been provided to determine any such award

(iii) That although the Claimant accepted that the Schedule of loss was entitled “Schedule of loss for wages only” as was the phrase unlawful deduction from wages, this was a complex claim with the same losses being sought under different headings of claim.

(iv) That Mr Heard did make express representations to the Tribunal, particularly regarding the question of interest, that these losses were being sought as losses due to discrimination.

[39]The Respondent objected to the application. Mr Brennan Banks stated that the Respondent could not have attended the Remedy hearing knowing that personal liability for the individual Respondents was an issue because at that stage they had not been found personally liable. On that basis the individual respondents had not agreed to liability for anything nor had they properly considered the point. He stated that at the remedy hearing he was led by EJ Webster into understanding that interest would be payable on all damages awarded and took part in the calculations for that reason, not because he accepted liability. He stated that the Respondents could not be held responsible for deductions from wages as they were simply an employee (him) and two directors neither of whom were legally responsible for the Claimant’s wages. Responsibility for paying the wages lay with the first respondent.

[40]Mr Brennan Banks also stated that in effect this was an application to amend the Claimant’s claim after Judgment and after reconsideration as this sum had never been advanced as a loss flowing from discrimination. He stated that on no basis would the individual respondents have accepted any such argument had they had the opportunity to make representations on this point.

[41]Mr Brennan Banks stated that the figure agreed was solely the sum of wages because they thought it was under the heading of unauthorised deductions from wages and he would have objected if he had thought that this was an award under the discrimination claim.

The Law

[42]Rule 70 of Schedule 1, The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (‘The Rules’) states that a Tribunal can reconsider its own judgment where it is necessary and in the interests of justice to do so. “A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”

[43]Rule 71 states, “Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary.”

[44]Rule 72 of the Rules states,(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.

(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.” 44. Mr Brennan Banks relied upon the EAT case of Liddington v 2gether NHS Foundation Trust. 34. As he made clear, a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration, and the opportunity for appellate intervention in relation to a refusal to order reconsideration is accordingly limited. 35. Where, as here, a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application. It seems to me that the Judge was entitled to conclude that reconsideration would not result in a variation or revocation of the decision in this case and that the Judge did not make any error of law in refusing reconsideration accordingly.” Discussion and decision Discussions and Conclusions 36. We do not accept the Respondent’s arguments that this is a reconsideration of a reconsideration. This is a determination of an application for reconsideration of the Remedy Judgment. The Reconsideration Judgment following the application for reconsideration from the liability Judgment has not been challenged by the Claimant. 37. Further the Tribunal does not accept that this is a second bite of the cherry as indicated by the Respondent nor that it is inappropriate that the matter is dealt with by way of Reconsideration as opposed to an appeal to the EAT. The grounds for whether a decision ought to be reconsidered are whether it is in the interests of justice to do so. 38. The Tribunal accepts that the Claimant’s first ground of application is correct in that EJ Webster ought properly to have consulted the parties before altering the Judgment given during the remedy hearing. Rule 71 clearly sets out that obligation on the Tribunal and EJ Webster omitted to follow that step. The correct thing for EJ Webster to have done, on perceiving that there may have been some confusion or that the matter had not been properly discussed during the hearing, was to write to the parties inviting their comments on the situation and then deciding whether a reconsideration was in the interests of justice before issuing a different Judgment. 39. For that reason alone, it is in the interests of justice to reconsider the Written Remedy Judgment issued as it deviated from that which had been delivered at the hearing and was not in accordance with the Tribunal Rules or the Overriding Objective which, amongst other things prescribes that a fair process is followed. 40. Further grounds for why it is in the interests of justice to reconsider the claim were that the Claimant and subsequently the Respondent, and EJ Webster, all had differing recollections of how the issue of which ‘Head of Claim’ the agreed sum was discussed and it is therefore apparent that it was not properly explored or discussed at the original Remedy Hearing. The reasons for that appear to be many fold, but the Tribunal accepts that it ought to have properly realised the lack of clarity at the time and for that apologises to the parties. 41. There were, the Tribunal considers, clear errors of fact relied upon on the part of EJ Webster when she wrote the written remedy judgment. Having reviewed the notes of the full Tribunal, it is clear as follows: (i) During the remedy hearing on 27 June, the Tribunal discussed awarded and calculated interest applying the rules set out for damages payable pursuant to an act of discrimination. EJ Webster accepts that she did not properly remember this point when writing the Written Remedy Judgment. It is clear that she made a significant further error in the Written Remedy Judgment by continuing to include an interest calculation for an unauthorised deduction from wages claim. That was wrong and demonstrates her lack of proper consideration at the time of writing the Written Remedy Judgment. (ii) Mr Heard did make express representations regarding an application for interest to be payable and that in of itself amounted to express representations on the head of claim under which the Claimant was seeking the damages to be payable. (iii) Mr Heard’s statement regarding the deferral of damages was only in relation to a deferral of the injury to feelings award and not the entirety of damages for the discrimination claim. 42. The Tribunal also considers however that the Respondent did not, at the time of the hearing, understand the significance of the Claimant’s application for interest (i.e. that it would only be payable if these were damages pursuant to the Equality Act 2010). On that basis the Tribunal considered afresh Mr Brennan Banks’ submissions on this point at this Remedy reconsideration hearing. 43. As we have determined that it is in the interests of justice to reconsider the Written Remedy Judgment, we now have the power, under Rule 70 that we can vary, suspend or revoke the original decision. We asked the parties to make representations as to which head of damages they consider the unpaid wages to be payable under and why. 44. The Claimant stated that it was clear from her original claim form that the wages were sought as losses pursuant to the discriminatory decision to make her remain on sick leave despite being signed as fit to return to work by her GP. The Tribunal upheld that this was an act of disability discrimination in the original Liability Judgment which was not challenged by either party in this regard.

[45]We accept that this disability discrimination claim was part of her original claim and not, as put forward by the Respondents today, an application to amend her claim after Judgment. That is not correct – this discrimination claim was clearly advanced in her ET1 and the Tribunal upheld that claim. The Judgment upheld, amongst others, the following claims:(i) a claim for disability discrimination arising out of disability in relation to the requirement for her to go off sick between 22 February 2019 and 23 July 2019,

(ii) a claim for direct disability discrimination regarding her being placed on sick leave between 22 February and 23 July 2019

[46]As a result of those discriminatory acts, the Claimant was not paid her full wages and suffered losses as a result.

[47]The Respondent’s submissions are that the individual Respondents ought not to be responsible for the non-payment of wages by the First Respondent. He stated that the individual respondents ought not to be responsible for those monies as he did not accept that the individual respondents bore responsibility for the discriminatory acts upheld against them. This was at least in part on the basis that he had not read the written reasons for the Reconsideration of the liability Judgment (which he stated to us in today’s hearing that he disagreed with) and because the First Respondent was responsible for payment of wages.

[48]In light of these representations and having considered the matter afresh, we find that the non-payment of wages to the claimant during the periods that she was required to remain on sick leave, ought properly to be awarded as discrimination damages under the Equality Act 2010. We found as conclusions of fact in the original liability Judgment that all 3 individual respondents were involved in the decision to keep the claimant off sick despite her being well enough to attend work and we found that the decision was discriminatory. Her lack of pay during this period is therefore properly attributable to discrimination and ought to be awarded under the Equality Act 2010.

[49]In conclusion, we therefore uphold the Claimant’s application for reconsideration of the Remedy Judgment. On upholding that application we consider that it is in the interests of justice to either vary or revoke the Written Remedy Judgment and award the sum of monies as originally decided during the course of the Remedy hearing. That award is made jointly and severally against all four Respondents. Unpaid Wages £91,011.54 Interest on unlawful deductions from wages (calculated at 8% on £51,722.32 for 609.5 days which is the midpoint between 22 February 2020 and 28 June 2022) £6909.54 TOTAL PAYABLE IN RESPECT OF UNAUTHORISED DEDUCTION FROM WAGES CLAIM: £97,921.08

The Law

[1]The Claimant’s claims for any damages arising from the upheld claims of disability discrimination (over and above that awarded in the Remedy Judgment dated 18 November 2022) are dismissed upon withdrawal.

[2]The amount awarded in the Judgment dated 18 November 2022 remain awarded to the Claimant and are not affected by this Judgment.