Ms H LeCompte v Ancaster Group Ltd and Ryan Masoura: 2303056/2015

EMPLOYMENT TRIBUNALS

Case No 2303056/2015

Between

Ms H LeCompteClaimant

Ancaster Group Ltd and Ryan MasouraRespondent

Before

Employment Judge Morton

Members

Ms B Leverton

Ms M Foster-Norman

Ms I Egan (instructed by Counsel) for claimant

Mr A MacMillan (instructed by Solicitor) for respondent

Date 27 February 2017

JUDGMENT

The unanimous Judgment of the Tribunal is that the Claimant is entitled under s124(2)(b) Equality Act 2010 to compensation of £13246.29 in respect of:

[1]direct discrimination and harassment under sections 18 and 26; and

[2]discriminatory dismissal under s39(7)(b).

REASONS

[1]The Tribunal found on the basis of Ms LeCompte's written and oral evidence and the bundle of documents provided for the purposes of the hearing, including the Schedule of Loss and the Respondent's Counter-Schedule, that Ms LeCompte was entitled to £6083.87 for loss of earnings and £9500 for injury to feelings (a total of £15583.87).

[2]The Tribunal also considered it to be just and equitable to reduce both sums by by 15 per cent (a total of £2337.58) in light of Ms Compte's failure to comply with the ACAS Code of Practice by declining to participate in the grievance process. The total amount of compensation is therefore reduced to £13246.29.

[3]To explain how we arrived at these figures, we first re-calculated the loss of earnings in the 13 week period between 7 July 2015 (when Ms LeCompte went on sick leave with stress as a result of the events surrounding her probationary review) and 10 October 2015 when her maternity leave started and she began to receive statutory maternity pay. We did so because the weekly earnings figures in the Schedule of Loss and the Counter-Schedule differed. Having looked at the payslips (for example at page 26 of the bundle) we concluded that the correct weekly earnings figure was £174 not the £181.05 claimed by Ms LeCompte. 13 weeks' pay at £174 per week amounts to £2262. From that loss of earnings figure we deducted statutory sick pay of £1562.63 leaving £699.37.

[4]In the three month period following the start of her maternity leave Ms LeCompte was in receipt of higher rate statutory maternity pay ("SMP") for six weeks and standard rate SMP of £139.58 per week for a further eight weeks. Those are sums that should not be deducted from her subsequent loss of earnings claim as they were payable in respect of a period during which Ms LeCompte would not have been seeking work in any event. This point was overlooked at the hearing and the oral remedy judgment therefore gave an incorrect loss of earnings figure for the period following 16 January 2016 because the Tribunal wrongly deducted from the loss of earnings claimed after 16 January 2016 sums that were received in the period prior to that date. That error has been corrected by the Tribunal of its own motion but either party that considers that the computation is incorrect may apply for the decision to be reconsidered.

[5]The Tribunal made a further loss of earnings award of 51 week’s pay from 16 January 2016 being that date on which Ms LeCompte would have returned to work, to the date that she started her new employment on 10 January 2017. We accepted her evidence that she would have returned to work at Ancaster Group approximately three months after the birth of her child. The job was conveniently located for her and enabled her to combine work with her childcare responsibilities. It was difficult in the immediate aftermath of giving birth to her second child to find alternative work that was sufficiently flexible and paid a salary that made it feasible to cover her childcare costs and this took time.

[6]A further 51 weeks' pay from 16 January 2016 to 10 January 2017 amounted to £8874. From that loss of earnings figure we deducted the remaining twenty five weeks of standard rate SMP amounting to £3489.50 leaving a total of £5384.50.

[7]The overall net loss of earnings figure was therefore £5384.50 plus £699.37 – a total of £6083.87.

[8]With regard to Ms LeCompte’s duty to mitigate the Respondent did not discharge the burden of showing that Ms LeCompte had failed to take reasonable steps to mitigate her losses. We accepted the evidence that she gave us as regards her attempts to find work and the period that it took her to find a suitable role, given the complications of being a lone parent with a young child and a baby and the need to find employment that could be combined with her childcare responsibilities and was sufficiently well paid to cover her costs.

[9]As for the injury to feelings award of £9500 the Tribunal was compensating Ms LeCompte only for the matters referred to in paragraphs 1 and 2 of the liability judgment, namely the contents of the letter preceding the probationary review, the letter received after the probationary review and the discriminatory constructive dismissal, which were the matters in respect of which her claim succeeded at the liability stage. Nevertheless her constructive dismissal led to the loss of a job that was particularly suitable to her circumstances at a particularly vulnerable time and this caused her considerable stress and anxiety. We did not accept all of Ms LeCompte’s evidence uncritically and noted in particular that the witness statement had not been expressed in her own words. But we did accept that the impact on her of losing a job that was manageable for her in her circumstances as a lone parent who was expecting another child was serious and lasted well into the period following the birth. We consequently concluded that an award at the lower end of middle band set out in Vento v Chief Constable of West Yorkshire Police (No 2)

[2002] EWCA Civ 1871

was appropriate in this case.

[10]We went on to consider both parties' submissions as regards the ACAS Code and Ms LeCompte's non-attendance at and non-cooperation with the grievance process. We arrived at the decision that it would be just and equitable to reduce Ms LeCompte's overall award by 15 per cent in consequence of these failures. We arrived at this decision because Ms LeCompte gave the Tribunal two entirely different explanations for her failure to engage with the grievance process. At the liability hearing she attributed her non-engagement to the health of her unborn baby and various issues associated with it that she said that she was dealing with at the time. At the remedy hearing however she attributed her failure to engage with the grievance process to her solicitors not having explained its importance and her ignorance of the appropriate way pursue a grievance internally. She therefore did not show to our satisfaction that her failure to engage was a reasonable failure and it plainly had considerable consequences for the manner in which this dispute subsequently unfolded, although the precise way in which events might have unfolded had she engaged with the process is a matter of conjecture.

[11]In arriving at the 15 per cent figure however we also took into account our criticisms of the Respondent’s investigation as set out in paragraph 38 of the liability judgment and we arrived at a reduction that in our view was just and equitable to both parties. NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number(s): 2303056/2015 Name of case(s): Miss H LeCompte v The Ancaster Group Limited & Others The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant decision day" is: 23 March 2017 "the calculation day" is: 24 March 2017 "the stipulated rate of interest" is: 8% MRS C GANGADEEN For the Employment Tribunal Office INTEREST ON TRIBUNAL AWARDS GUIDANCE NOTE

[1]This guidance note should be read in conjunction with the booklet, ‘The Judgment’ which can be found on our website at www.justice.gov.uk/tribunals/employment/claims/booklets If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal office dealing with the claim.

[2]The Employment Tribunals (Interest) Order 1990 provides for interest to be paid on employment tribunal awards (excluding sums representing costs or expenses) if they remain wholly or partly unpaid more than 14 days after the date on which the Tribunal’s judgment is recorded as having been

[1]Following the remedy judgment on reconsideration sent to the parties in February 2017 the Respondent applied for a further reconsideration, as it submitted that the tribunal had failed to give credit for the Statutory Maternity Pay paid to the Claimant. I considered the application in accordance with Rules 70 and 72 Employment Tribunal Rules.

[2]I sent both parties a letter setting out my preliminary view of the Respondent's application and both parties agreed with that view and agreed that it was not necessary in the interests of justice for the matter to be reconsidered at a hearing. The Tribunal then agreed that the original decision should be varied.

[3]However in arriving at that decision the Tribunal had erroneously proceeded on the basis that it had failed to give the Respondent credit for any of the SMP paid to the Claimant. In fact it did give credit for 25 weeks of SMP in paragraph 6 of the 27 February judgment. As that seems to the Tribunal still to be the correct position there is no need to reconsider the judgment.

[4]To recap, the Claimant's period of loss effectively fell into three sections: 1. the period 7.7.15 to 10.10.15 during which the Claimant lost earnings but received SSP, for which credit was given - the Respondent has raised no issue about that period; Case Number: 2303056/2015 2. The period from 11.10.15 to 16.10.16 (14 weeks) during which the Claimant experienced no loss of earnings as she would not have been working in that period even if she had not been constructively dismissed from her employment with the Respondent; she did however receive SMP in this period; 3. The period from 16.1.16 to 10.1.17 during which we determined that the Claimant lost earnings because of her dismissal; she continued to receive SMP for 25 weeks of this period.

[5]The Respondent submits that credit should be given for all the SMP paid. The Tribunal does not accept that submission. The view that the Tribunal took that no credit should be given for the 14 week period between 10 October 2015 and 16 January 2016 still seems to us to be correct. This was a period during which the Claimant would not have been working and receiving an income and no loss of earnings was therefore awarded for that period against which the SMP paid in that 14 weeks could be offset.

[6]The Tribunal did, as noted above, give the Respondent credit for the remaining 25 weeks of SMP paid to the Claimant - a sum of £3489.50. This amount did overlap with the period during which the Claimant would have been earning had she not been dismissed and there is therefore an award of loss of earnings against which that part of the SMP can and should be offset.

[7]The total payable to the Claimant should therefore remain at £13246.29 calculated as follows: Loss of earnings less SSP in period 1 = £699.37 Loss of earnings in period 2 = nil (and no credit therefore given for SMP paid in that period) Loss of earnings in period 3 = £8874 minus 25 weeks of SMP at £139.58 per week (£3489.50) = £5384.50 Loss of earnings is therefore £5384.50 + £699.37 = £6083.87. £6083.87 + £9500 injury to feelings = £15583.87. Deduct 15% for non-compliance with the ACAS Code (£2337.58) giving a total of £13246.29.