Miss M Georgiev v Hanover Insolvency Ltd: 2400113/2019
EMPLOYMENT TRIBUNALS
Case No 2400113/2019
Between
Miss M GeorgievClaimantHanover Insolvency LtdRespondent
Before
Employment Judge SlaterIn person for claimantMiss H Trotter (instructed by counsel) for respondentDate 7 February 2020
JUDGMENT
[1]The complaint of unfair dismissal is well founded.[2]The complaint of discrimination in relation to dismissal, contrary to s.18 and s.39 EqA 2010, is well founded.[3]The respondent was in breach of contract by dismissing the claimant without notice.[4]The complaints of unlawful deduction from wages in respect of holiday pay, payment under the “refer a friend” scheme and payment for variations are not well founded.[5]The complaint of unlawful deduction from wages in respect of payment for overtime is dismissed on withdrawal by the claimant.[6]By consent, the Tribunal makes a declaration that the respondent made an unlawful deduction from wages in respect of payment due for drafted cases and orders the respondent to pay the claimant the sum of £120, being the amount unlawfully deducted.[7]Remedy for the other successful complaints will be determined at a remedy hearing on 2-3 September 2020.
REASONS
Conclusions
[1]The claims and issues were discussed and agreed at the outset of the hearing, with some modification during the course of the hearing. The judge gave to the parties a typed list of claims and issues which the parties confirmed recorded the issues to be decided by the tribunal.[2]The agreed claims and issues were as follows. s.99 ERA unfair dismissal Was the claimant dismissed?[2]If so, was the reason or principal reason for dismissal connected with the claimant’s pregnancy?[3]If the claimant was dismissed, is the dismissal treated as not having any effect as a result of a successful appeal, in accordance with the principles in Ramesh Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1843. The respondent does not argue there was a contractual right of appeal. s.18 Equality Act discrimination Was the claimant dismissed?
Evidence
[5]If so, was this unfavourable treatmenta. Because of the pregnancy, orb. Because of illness suffered by her as a result of the pregnancy?[6]If the claimant was dismissed on 8 October 2019 but successfully appealed against the dismissal, do the principles in Ramesh Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1843 mean that the s.18 Equality Act 2010 claim cannot succeed? The respondent does not argue there was a contractual right of appeal. Breach of contract Was the claimant dismissed?[8]What notice was the claimant entitled to? The claimant claims two weeks’ pay, based on what she says she was told when dismissed. The respondent says that the claimant was entitled to one week’s notice, if dismissed. Holiday pay[9]The parties agreed that the claimant had two days’ accrued but untaken holiday.[10]Did the respondent fail to pay the claimant in lieu of this? The claimant claims £164.24 for two days’ accrued leave. The respondent says she was paid for 2 days’ accrued, untaken leave. The claimant says she was not paid. Unlawful deduction from wages[11]Did the respondent make unlawful deductions from wages by failing to pay the claimant the amounts set out in her claim form for:a. Refer a friend - £350. (R denies any entitlement).b. Variation request – The claimant claims payment of a balance of £640, £20 having been paid. The respondent denies the claimant is entitled to any further payment. The claim in respect of payment for overtime is withdrawn, the claimant accepting that she has received payment for this. The respondent concedes that the claimant is due a further £120 for drafted cases. 3. On the first day of the hearing, the respondent withdrew its positive case that the claimant would have been dismissed because of a phobia with phones and deleted paragraphs 38 and 42 of its amended grounds of resistance. Evidence 4. We heard evidence from the claimant and from the following witnesses for the respondent: Alexander Ryder, Drafting Manager and, at the relevant time, Senior Insolvency Administrator and case reviewer for the claimant. Lucy Waring, Head of Pre-Appointment. Daniel Morris, Consulting Managing Director of the respondent. Suzanne Greaves, HR Manager. 5. There was an agreed bundle of documents to which a number of other documents were added during the hearing by consent. We refused to include an email from the respondent which had been prepared on 4 February 2020 for the purposes of these proceedings about the variation bonus. The author of the email, which we were told contained hearsay evidence, was not attending to give evidence. We considered this would have little weight if included. Facts 6. The respondent is an insolvency practice that specialises in personal insolvency. It has around 110 staff. 7. Daniel Morris was the Consulting Managing Director of the respondent and the most senior person working in the business on a day-to-day basis. Suzanne Greaves, HR manager, in effect reported to Daniel Morris, although she also reported to the business owners. The business owners were not engaged on a dayto-day basis in the business. 8. The claimant was approached by Daniel Morris to work with the respondent. Daniel Morris knew the claimant from previous employment. 9. The respondent routinely records telephone calls. Our findings of fact relating to telephone calls are taken from transcripts of those calls. 10. The claimant began her employment with the respondent as an IVA drafting administrator on 9 July 2018. The first three months of employment was a probationary period. The claimant’s contract of employment provided that there was no entitlement to notice of termination during the probationary period. This was, as the respondent’s representative recognised, erroneous in so far as it did not comply with the provisions relating to statutory minimum notice. The contract of employment referred to the employer’s non-contractual grievance, disciplinary and appeals procedures set out in the staff handbook. The contract stated that, during the first 12 months of service, no disciplinary procedure would apply. The respondent accepts that there was no contractual right of appeal against a decision to dismiss. 11. In accordance with normal procedure for a new drafter, the claimant was to spend time in other departments to get familiar with procedures. There is some dispute about whether all the claimant’s periods in different departments was due to this practice or whether some of it related to a lack of confidence in making telephone calls. There was a dispute between the parties about the extent and reasons for the claimant’s lack of confidence on telephone calls. However, since the respondent withdrew its positive case that the claimant would have been dismissed because of a telephone phobia, it is not necessary for us to make any findings of fact about this area of dispute.[12]The claimant spent some time in the Post Appointment Department. This was referred to in various messages as working “downstairs”. The claimant enjoyed her work in that department. However, on 15 August 2018, she asked Daniel Morris to move into the drafting team, which was the job for which she had been employed. She joined the drafting team around 20 August 2018. This involved working in a call centre type environment. Daniel Morris worked on the same floor and was aware of the claimant working there.[13]On 29 August 2018, the claimant left work early because she was unwell. She discovered on that day that she was pregnant.[14]The claimant was on annual leave in the period 3rd to 9 September 2018.[15]The claimant was suffering considerably with morning sickness and dizziness.[16]On 13th or 14 September 2018, the claimant had a meeting with Alex Ryder and Lucy Waring. She informed them of her pregnancy. She asked that they not disclose this to any other members of staff. The claimant raised a concern that her pregnancy was causing her to feel ill and affecting her performance. On the basis of Lucy Waring’s evidence, we find that they made the claimant aware that they had laptops available for home use if she was struggling to get into the office and that the respondent would allow employees to work from home in exceptional circumstances on a laptop provided by the respondent. The claimant expressed concern that the effect of her pregnancy-related illness would result in her not passing her probationary period. They reassured the claimant that she was doing just fine and would have no problems passing her probationary period based on the standard of her proposals. They assured the claimant that her work and performance were more than satisfactory. This is contrary to what the respondent has said in its original response and amended response in which it is denied that the claimant was informed that her work and performance were more than satisfactory at the meeting between the claimant, Lucy Waring and Alex Ryder on 13 September 2018. Suzanne Greaves, who approved the draft responses, was unable to provide any satisfactory explanation for the incorrect statement in the response.[17]On 17 September 2018, the claimant left work early because she was unwell. She was absent from work on 18 September. On 24 September 2018, the claimant was again absent from work. She called the office and spoke to Nicola Whitham. She told Nicola Whitham that she was having dizzy spells and was waiting for a call back from the doctor. She said she kept being sick. She said she was stressing out with having time off work as well. She said that people did not know that she was pregnant and it was giving her bad anxiety as well. Nicola Whitham said that she would let Lucy Waring know and the claimant could come in if she felt better later on.[18]On 26 September 2018, the claimant spoke to Suzanne Greaves by telephone. The claimant updated Suzanne Greaves that she had been to the doctor and was awaiting results from blood tests. She said she was getting stressed out and financially could not afford to take a week off work and was just going to see how she got on. She said she had asked for it to be confidential so she was not sure Suzanne Greaves was aware, but she was pregnant. She said she was only 6 weeks at that time which is why she did not want to tell anyone because she had had a miscarriage before. She said she was feeling absolutely awful, she wanted to come in and had intended to come in that morning but had been sick. She said she could not afford to have time off and it was really, really stressing her out so she was going to try her best to come in. She was just going to have to see how she got on. Suzanne Greaves said she would tell Lucy that she had been advised to stay off till Friday and if she came in, she came in, if she didn’t, she didn’t. She said they would expect to see the claimant back in on Monday and if she felt well enough then she would come in. The claimant sent a message a few days later to a friend and colleague, J, in which she commented that she had spoken to Suzanne and she wasn’t very sympathetic at all. Whilst we accept this was the claimant’s perception, there is nothing in the transcript that displays an obvious lack of sympathy.[19]The claimant was signed off from work due to dizziness and nausea in the period 26 September to 2 October.[20]The claimant was concerned about whether she would be dismissed. On 29 September 2018, she sent a text to J in which she stated “work are going to get rid of me for sure.”[21]It is evident from the text messages to J that the claimant was not happy working in the drafting department. She referred to it as a “horrid environment”. She wrote that she might ask if she could go back downstairs, that she preferred it there, it was more relaxed and less pressure.[22]On 2 October 2018, the claimant texted J, saying she hadn’t had the energy to look for anything else so would go back on Monday and see how it went. She wrote that she would rather have work lined up when she left. We take from this that the claimant was contemplating leaving if she could find another job because she was not happy in her drafting role.[23]The claimant obtained another fit note covering absence from the 2 to 8 October 2018 due to vomiting.[24]A text from the claimant to J on 6 October 2018 expressed concern that the respondent may dismiss her. In J’s reply, she wrote that the claimant had a chance. She wrote that the claimant was good at her job and she was sure they would be delighted if the claimant offered to work from home. She wrote that there was a huge backlog with drafting.[25]On 7 October 2018, in a further text, the claimant wrote that she was back in the next day and doubted they would be willing to keep her on. J replied, writing: “I don’t see why not. I think you should keep your options open. They are behind with drafting. Danny asked us if any of us were interested. Don’t think anyone got back to him but he did say we could work from home. Push for that! You may be glad to get back to work after baby is born!”[26]The claimant replied that she would definitely try and push to work from home in that case.[27]There is no suggestion in this text correspondence that the claimant is seeking to change her employment status from that of employee to being self-employed. The discussion of the possibility of home working does not suggest this possibility is being considered other than as an employee. The claimant had previously been told by Lucy Waring that employees could exceptionally be allowed to work from home, using a laptop. The claimant would have no reason to believe, at this stage, that she could only work from home if she ceased to be an employee.[28]We heard from Daniel Morris that the respondent had recently acquired some laptops and equipment which enabled people to work at home in accordance with regulatory requirements. The people who worked from home were doing some additional work at weekends to the work they did in the office from Monday to Friday. They were all employees. They received payment for each case completed at home in addition to the normal salary and bonus. The respondent did not engage anyone on a self-employed basis to work from home.[29]On 8 October 2018, the claimant returned to work. She found that her belongings had been moved and another member of staff was at her desk. We heard that there was a practice of hot desking in the section where the claimant was working. The claimant has not satisfied us, on a balance of probabilities, that her belongings had been moved because she was going to be dismissed. We accept, however, that she formed this suspicion in the light of the events which followed.[30]The claimant was due to have her probationary meeting on 9 October 2018. Her 3 months’ probationary period was ending on 8 October 2018.[31]On 8 October 2018, soon after the claimant arrived at work, there was a meeting between the claimant and Daniel Morris. Much about this meeting is in dispute. The areas of common ground are as follows. The meeting was initiated by Daniel Morris inviting the claimant to come into an office to speak to him. The claimant became very upset. The claimant told Mr Morris she was pregnant. The claimant had not told Daniel Morris before the meeting that she was pregnant. Mr Morris said this was the first he had known about the claimant being pregnant. There was some discussion about working at home which was initiated by the claimant. The meeting was about 15 minutes long. As a result of what was said in the meeting, the claimant ceased to be an employee as of that day. Suzanne Greaves contacted the accountant who dealt with their external payroll either that day or the day after and told them that the claimant’s employment ended on 8 October 2018. Terms of self-employment were not agreed during the meeting.[32]The principal areas of dispute are as follows. Did Daniel Morris tell the claimant that she was dismissed and confirm this after she told him that she was pregnant or did they have a discussion in which the claimant agreed, without dismissal being mentioned, that she would leave employment that day to work from home on a selfemployed basis on terms still to be agreed? Did Suzanne Greaves join the meeting towards the end of that meeting?[33]The essential elements of the claimant’s version of events are as follows. The claimant says that Mr Morris told her immediately that they were going to have to let her go. She said she then told him that she was pregnant and had been sick due to pregnancy-related illness. He confirmed her dismissal, saying that if staff are off sick they are not making him money. The claimant says she became very upset. She begged Daniel Morris to change his mind but he would not. She said that she had been told by managers that she was performing well. Daniel Morris advised her that the dismissal was solely due to her absence and not her performance. She said this was due to pregnancy -related illness. Daniel Morris again refused to change his mind and said that the best he could do would be to pay her 2 weeks’ notice plus any outstanding bonus. The claimant was aware that IVA drafters had been working from home on Saturdays using the company laptops so asked if this was something that she could do. He said he would speak to HR and see if there was anything they could do but it was unlikely the respondent would be happy to let her use a laptop from home since she had been dismissed. The claimant says there was no mention of self-employment. The claimant says she left the office, collected her coat and went home. She denies that Suzanne Greaves joined the meeting before she left.[34]The essential elements of Daniel Morris’ account of the meeting are as follows. Daniel Morris says that he invited her to speak with him because he observed her “heaving” at her desk and was concerned for her health and well-being. Daniel Morris’s witness statement states that the claimant told him she was pregnant, she was emotional and tearful and talked to him about the financial pressure that she was under. He says he asked her what she wanted to do and how he could make the situation easier for her. She said she wanted to work from home. From the conversation, he said he was aware she was struggling to comply with the pressurised aspects of the role. To identify steps to reduce the pressure of the drafting role, he says he suggested that maybe she could complete work on a piecemeal fashion with no requirement for minimum hours or targets. This would allow her to work as much or as little as she wanted depending on how her symptoms were on a particular day. Daniel Morris asserts that the claimant agreed to this and said she was grateful for the opportunity. He asserts that they agreed that the claimant would therefore work from home on a self-employed basis. In oral evidence, Daniel Morris said that he was the person who first mentioned selfemployment.[35]In the response, the respondent asserted that the claimant had told Daniel Morris that she was extremely concerned about her parents finding out about her pregnancy due to their religious beliefs. The claimant disputes this and says her mother knew about her pregnancy as soon as she did. Daniel Morris did not include evidence about this part of the conversation in his witness statement and, in answer to questions from the judge, said he did not know if religious belief had been discussed.[36]Although the response and amended response and Daniel Morris’s witness statement make no mention of this, Daniel Morris gave oral evidence that Suzanne Greaves joined the meeting towards the end. We found Suzanne Greaves’ witness statement to be somewhat ambiguous as to whether she joined the meeting when the claimant was still there or spoke to Daniel Morris after the meeting. However, in oral evidence, she amplified her evidence, asserting that she was invited into the meeting when she arrived at work and giving details about what was said that were not contained in her witness statement. On her own account, she did not witness the conversation between the claimant and Daniel Morris which Daniel Morris asserts resulted in the agreement to end the claimant’s employment and to engage her on self-employed terms which were still to be agreed. Suzanne Greaves says that Daniel Morris told her that the claimant really was not very well and did not want to continue working. Rather than give up, she was going to work from home on a selfemployed basis. Suzanne Greaves said she was a bit surprised because they did not have anyone who was self-employed. Suzanne Greaves said that she said “Oh OK” and might have said “are you OK with this Maya” to which the claimant smiled and said yes. Suzanne Greaves says this was the extent of the conversation. She says the meeting ended with Daniel Morris saying the claimant would come back for a laptop and that Lucy would sort it out with IT. Suzanne Greaves gave evidence that she did not ask Daniel Morris anything else about what had been agreed but decided to talk to solicitors to see how this would work and if there was anything she needed to do. However, she did not contact the solicitors that week. Suzanne Greaves did not make any notes of the meeting. Suzanne Greaves said she did not attend a meeting with the claimant and Daniel Morris on 9 October.[37]We prefer the claimant’s account of the meeting to that of the respondent’s witnesses for the following reasons.[38]The claimant’s account that she was dismissed is supported by contemporaneous documents. Within less than an hour of the meeting, the claimant had sent a text to J saying: “They sacked me. Could have just told me over the phone rather than making me go all the way in!!”[39]The claimant had no reason to write to a friend that she had been sacked if she did not understand this to be the case.[40]There is further support for the claimant’s account in a message dated 17 October, to another friend, M, saying: “I was drafting but they sacked me the day before my probation because I had 2 weeks off as I am pregnant and I have been really ill. I had a sick note from the doctors so I appealed the decision and they have offered me the job back but after what has happened I don’t feel do [sic] in going back … Don’t know what to do. They are only going to find another reason to get rid of me if I go back x”[41]On 12 October 2018, the claimant sent the respondent an email appealing against dismissal.[42]The reply from Suzanne Greaves on 15 October 2018, on behalf of the respondent, did not challenge the claimant’s assertion that she had been dismissed, which we would have expected to be the case had the respondent genuinely understood that the claimant’s employment had come to an end by mutual agreement. The first suggestion from the respondent that the claimant had left on agreed terms did not come until a letter dated 18 October 2018 in which Suzanne Greaves wrote: “After your prolonged sickness, we also offered you the opportunity to work from home with a much higher bonus rate and on a self-employed basis, which was an opportunity you thanked us for and agreed with the suggested terms, and said it was something you had always wanted to do.”[43]In a telephone conversation on 23 October 2018 with the claimant, that Daniel Morris flagged up was being recorded, Daniel Morris stated: “your employment was still on probation as far as I was concerned anyway we both had a conversation…” If the meeting on 8 October had proceeded in the way Daniel Morris has said in evidence that it went, there would be no relevance in this comment about the claimant still being on probation. The reference to the claimant still being on probation is more consistent with Daniel Morris having taken the opportunity to dismiss the claimant when she was still within her probationary period. In the same conversation on 23 October, the claimant said “you unlawfully dismissed me and I think, and you did… And it was down to..”. If the conversation on 8 October had been as Daniel Morris asserts, we would have expected him to reply, denying that he had dismissed the claimant and referring to the agreement they had reached for the ending of the claimant’s employment. However, he replied: “Maya, Maya I think I know where this is going and I think you know where it is going, so take your advice.”[44]On 7 January 2019, the claimant presented her claim. Her account on the claim form gives the main points relating to this meeting and other matters. We find nothing inconsistent between what the claimant wrote on the claim form and her witness statement. Much was made in cross examination of the claimant of the omission of what was put to the claimant as being important details. However, the purpose of the claim form is not to give all the supporting evidence. We accept the claimant’s evidence that she understood from guidance on the tribunals website that she had to be succinct and would have an opportunity to give further details later. We do not consider that the claimant’s credibility is undermined in any way by not giving, in the claim form, all the evidence she would later rely on.[45]The respondent has no contemporaneous documents which supports their account of the meeting on 8 October 2018. We would have expected, in particular, Suzanne Greaves, as an experienced HR professional, to make a careful note of what had been discussed and agreed since what happened at the meeting on 8 October led to the claimant’s employment ending on that date. Suzanne Greaves was aware that the claimant was pregnant and that her absences were pregnancy related.[46]We consider it inherently implausible that, in a 15 minute meeting, the claimant and Daniel Morris would get to a position where there was an agreement that the claimant’s employment was ending on that day and the claimant was to become selfemployed, even if the claimant thought that self-employment rather than continued employment was a good idea. There is no evidence the claimant had thoughts of self-employment before the meeting. Even on the respondent’s account, terms for self-employment were not agreed at the meeting.[47]We also consider it inherently implausible that such a drastic solution as ending the claimant’s employment and substituting self-employment would be considered by the claimant a good idea to get over what would be a temporary problem of morning sickness. If Daniel Morris had been motivated by wanting to help the claimant get through this difficult, but temporary, problem of pregnancy-related illness, a more likely solution to discuss would have been temporary home working as an employee. Lucy Waring had told the claimant on 13 and 14 September 2018 that this could be a possibility and they already had people doing drafting work at home at weekends.[48]We find, on a balance of probabilities, that, whatever the exact words used were, Daniel Morris made it clear to the claimant within moments of the meeting starting that he was dismissing her. After being told that she was pregnant and that her absences were pregnancy related, he then confirmed that she was being dismissed and that the reason for this was because of her absences. We find that the claimant raised the possibility of working from home in an attempt to salvage something from a difficult situation, where she was particularly worried about her financial situation. We find that self-employment was not mentioned. Daniel Morris said he would speak to HR to see what they could do. We find that Daniel Morris did not make it clear to the claimant that, if she was allowed to do work at home, this would be on a selfemployed basis.[49]We find further support for our findings from the later telephone call between Lucy Waring and the claimant on the afternoon of 8 October. Lucy Waring referred to the claimant having spoken to Daniel Morris that morning about doing some work from home and said she was going to sort out the claimant with a laptop. The claimant replied: “oh brilliant OK”. Lucy Waring informed the claimant that she would do drafts from home and they would pay her on the ones she got set. Lucy Waring asked: “Did Danny talk you through that or…?” The claimant replied: “Briefly. He just said he would talk to yourself or Suzanne. He’s not really gone into detail or anything.”[50]Lucy Waring told the claimant they would pay her £30 for each meeting set. Lucy Waring then said “Errm but obviously on a self-employed basis.”[51]The claimant replied: “yeah, all right, no I really appreciate that. I mean when Danny spoke to me this morning first of all I wasn’t expecting it and I broke down in front of him.”[52]They then spoke about the claimant coming in the following day, 9 October, to collect the laptop. Lucy Waring told her to ask for her or Suzanne and she would get her the laptop. In fact, the claimant did not have any further contact with Lucy Waring after 8 October.[53]Having preferred the claimant’s version of events on 8 October over that of Daniel Morris, we also prefer the claimant’s evidence over that of Daniel Morris in finding that Daniel Morris told her that the respondent would give her 2 weeks’ notice.[54]Even on the respondent’s witnesses’ version of events, Suzanne Greaves did not witness the most significant part of the meeting between the claimant and Mr Morris on 8 October.[55]We have considered whether Suzanne Greaves or the claimant may have become confused in their recollections of whether Suzanne Greaves was present at the end of the meeting between the claimant and Mr Morris on 8 October. Although the claimant was very distressed, we think it unlikely she would not have recalled Suzanne Greaves being there. Also, we consider it unlikely she would have been confused in her recollection of seeing Suzanne Greaves on 9 October, the day she returned to collect a laptop, rather than 8 October. We have preferred the claimant’s account of the meeting on 8 October over that of Daniel Morris. There does not appear to be any reason that the claimant would be untruthful about whether or not Suzanne Greaves joined the meeting on 8 October or whether, instead, she met with Suzanne Greaves and Daniel Morris on 9 October.[56]We consider it possible that Suzanne Greaves is mistaken in her recollection, having confused a meeting on 9 October with one on 8 October. The timeline produced by her may lend support to this since it appears from the timeline that the claimant came into the office to collect the laptop on 8 October which is clearly incorrect, given the conversation about collecting the laptop between the claimant and Lucy Waring on 8 October, when it is arranged that the claimant will go in on 9 October.[57]Daniel Morris did not say anything in his witness statement about Suzanne Greaves being present at any part of the meeting on 8 October. As we noted previously, there is some ambiguity about the evidence given in Suzanne Greaves’ witness statement about this meeting. In paragraph 7, the use of “following this” suggests that Daniel Morris called Suzanne Greaves in after he and the claimant had had their discussion. In paragraph 8, the use of the phrases “I had understood that Maya and Danny had mutually agreed the termination of Maya’s employment” and “it had been separately agreed between them that she would work from home on a selfemployed basis” is more consistent with Suzanne Greaves not having been at the meeting on 8 October than with her being present. The respondent’s response and amended response make no reference to Suzanne Greaves being present at the meeting. If events occurred as outlined to us in oral evidence by Suzanne Greaves, it is surprising to us that she did not put this detail in her witness statement, particularly given her experience as an HR professional. As previously noted, we would have expected Suzanne Greaves, as an HR professional, to have made a note of significant points had she been present at the meeting.[58]We find, on a balance of probabilities, that Suzanne Greaves was not present at any part of the meeting on 8 October but was informed, after that meeting, by Daniel Morris that the claimant’s employment was ending that day. She acted on that information by contacting the accountant to get the claimant taken off the payroll, calculating the claimant’s holiday pay due and working out that it was equivalent to the extra 2 days for which the claimant had been paid, since the payroll for the period to 10 October 2018 had already been processed.[59]After the telephone call with Lucy Waring, in which it was made clear to the claimant that work from home would be on a self-employed basis, the claimant had a telephone call that evening with her friend J. J had some experience of selfemployment. Later that evening, after the telephone call, J sent a text to the claimant suggesting to the claimant that she would be better off self-employed, she would pay less tax and get an extra £10 per proposal. She would have the choice to do less hours. She said she would send the claimant details of their accountant.
Law
[60]The following morning, the claimant texted J to say: “I can’t believe how stressed out I was about it all initially but working from home is ideal for me and it’s what I have wanted to do for a while.” We accept that the claimant was putting a positive spin on events. She did not also understand, at this point, all the implications for her of being self-employed.[61]We find that the claimant would not have been financially as well off, or better off, if she had worked at home on a self-employed basis than if she had remained as an employee, working from home on a temporary basis, as required. This is without taking account of implications for maternity leave and pay of a change in employment status.[62]Around this time the claimant also spoke to her partner who suggested she get advice from the citizens advice bureau.[63]On 9 October 2018, the claimant went into the office to collect a laptop. We prefer the claimant’s version of events to that of Daniel Morris and Suzanne Greaves, finding that the claimant had a meeting with them on that day. We accept the claimant’s account that she said that she was happy to work from home but expressed concern about self-employment. As noted from the conversation with Lucy Waring, the claimant had expected to see either Lucy Waring or Suzanne Greaves that day.[64]The claimant began trying to work from home with the laptop but encountered various technical problems.[65]The claimant took advice from ACAS. As a result of this advice, she wrote to Suzanne Greaves on 12 October 2018. The first version of the letter was sent at 11.42. Later in the day she sent one with the corrected date in the first paragraph, which had erroneously referred to 8 November 2018 rather than 8 October 2018. The letter began: “I write to notify you that I am appealing against your decision to dismiss me on Monday, 8 October 2018, on the grounds of my sickness absence.”[66]She went on to say that, as Suzanne was aware, the reason for her absence from 29 August 2018 was purely down to her pregnancy sickness. She wrote that she had been assured by Alex and Lucy that her work performance was satisfactory. She wrote: “following your offer to work on a self-employed basis, I have decided this option is not acceptable for me. This option is having me stripped of any employment rights. I feel the offer to work for you on a self-employed basis is purely to avoid any form of employment benefits I should have been entitled to during my employment and on this basis I feel I have been treated unfairly with the decision you have made.” She wrote about the technical issues that she was having and wrote that she was not happy to continue with the arrangement. She raised various matters to do with payments she considered due to her.[67]She concluded her letter: “As you can appreciate, I feel I have been dismissed solely on the fact that I am pregnant, at no point has my performance been questioned, this was purely due to my sickness absence and Danny mentioned in my dismissal meeting. I am sure if I had been dismissed on performance I would not have been given the opportunity to work on a self-employed basis and a laptop and phone would not have been provided for me. I do not feel confident that any work that I may complete on a self-employed basis I would be paid to me due to the reasons mentioned above. I feel I have been put in an impossible situation, due to my pregnancy illness I am not in a position to currently look for employment, I feel any potential employers would be reluctant to employ me knowing that I am pregnant. I am extremely upset and disappointed that I have been put in this unfair position.”[68]On 15 October 2018, Suzanne Greaves replied to the claimant. As previously noted, she did not respond to the assertion that the claimant had been dismissed. She wrote that she was sorry to hear about the difficulties with the systems, working from home. She wrote “it seems a shame as you were so excited and relieved to have the opportunity to work from home. I recall you saying it was something you always wanted to do.” She wrote “you are more than welcome to come back and work from the office, on an employed basis. Let me know when you are able to return. On your return Lucy can go through all your payment queries, which we will look to resolve.”[69]Suzanne Greaves did not consider at the time that she was determining an appeal.[70]The claimant replied on 16 October 2018. She wrote that she was extremely pleased to have the opportunity to work from home, however, being stripped of any employment rights was a concern for her. She wrote that she would like to accept the offer to return to work. She wrote: “It has been advised that I inform you of my current health situation in order for any possible adjustments to be made to my working condition. I been suffering [sic] with severe stress and anxiety as well as the pregnancy illness and I have a few concerns about my return to work. Hitting the drafting targets and the stress that comes along with the role is a worry with how I am now feeling. “Is it an option for me to discuss with Lucy a possible target reduction or role which is not so pressured. “I do not want to let the Danny or myself down and the pressure to hit a target which I do not feel is achievable for me at this time is a major concern to me. “Please can you let me know what my options are and if this is something we are able to discuss upon my return.”[71]Suzanne Greaves responded the same day. She wrote: “When you return, we can monitor your performance carrying out the drafting role, however are unable to offer any further adjustments at the moment. “Let me know of a suitable start back date.”[72]The claimant replied at 7.46 a.m. on 18 October 2018 writing that she was getting advice on her current position and would get back to them that day.[73]At 13.39 that same day, Suzanne Greaves wrote to the claimant. Suzanne Greaves explained this letter in her witness statement as being written because, from a commercial point of view, the respondent needed the matter as to whether the claimant was to return to work in an employed capacity to be resolved as soon as possible. However, this does not explain to us satisfactorily why she was writing in the early afternoon on a day when the claimant had said she would get back to the respondent after taking advice, without even waiting to the end of the day. It also does not explain to us the tone and much of the contents of this letter. We consider the tone of the letter to be pejorative in parts, in particular, the description of the claimant having a “phobia” of talking on the phone, a term which had not been used by the claimant, and the description of the claimant having a “mental illness” in response to the claimant having talked about suffering severe stress and anxiety. We do not accept the position put to the claimant in cross examination that the use of “mental illness” in this context was a purely neutral, or indeed accurate, description. The tone and contents of this letter are not what we would have expected from an experienced HR professional.[74]The claimant was unclear about exact dates in relation to the stages of miscarriage which she subsequently suffered, considering it possible that she had confused dates in her witness statement with those relating to a subsequent miscarriage. However, we find that around this period, the claimant was making visits to the hospital because of feeling ill and, at some point around this time, she learnt that she was starting to miscarry. Subsequently, sadly, the claimant did suffer a miscarriage.[75]Despite the difficult circumstances, the claimant managed to carry on correspondence with the respondent for a few more days.[76]On 23 October 2018, at 12.07, the claimant wrote back to Suzanne Greaves. She started her email writing: “I am extremely disappointed with the unprofessional tone of your email.” It was put to the claimant in cross examination that this was aggressive. We do not agree. We consider it fair comment, having regard to the tone and contents of Suzanne Greaves’ email of 18 October 2018. The claimant took issue with various points in Suzanne Greaves’ email, including what had been written about phone work. She wrote: “I do not feel any of the below points you have mentioned are relevant, this only seems to be a way of deflecting from the fact that I was dismissed due to my pregnancy -related absence. I do not feel 2 weeks as sickness can be considered prolonged.”[77]The claimant wrote that she had accepted the offer to return to work on an employed basis. She wrote that she had been provided with a note from her doctors to advise she could return to work on the basis that she was offered a less stressful role or adjustments were made to avoid any risk to her and the baby. She wrote: “I have advised you that with my current health situation I am unable to go back to the drafting role, this is not in relation to the phone work as you have mentioned it is with regards to the high targets and the pressure of the role which I feel I cannot meet with feeling unwell due to my pregnancy.”[78]She wrote that she considered commenting on her “mental illness” was completely inappropriate.[79]About 30 minutes later, Daniel Morris telephoned the claimant. Daniel Morris and the claimant were aware that they were being recorded. It is clear from the transcript that the claimant had difficulty in speaking without being interrupted by Daniel Morris. Daniel Morris was asking what the claimant wanted. He told her there were no jobs going downstairs and no other roles. The claimant explained that what she was asking for had nothing to do with the phones it was to do with targets. The claimant said that if they could not make any adjustments and could not accommodate her she would have to get advice on that. As previously noted, Daniel Morris said: “I think I know where you are going with this right, but there are no... We put our position in writing. Your employment was still in probation as far as I was concerned anyway we both had a conversation...”[80]The claimant said: “You unlawfully dismissed me and I think, and you did…. And it was down to..”[81]Daniel Morris then interrupted and said: “Maya, Maya I think I know where this is going and I think you know where it is going, so take your advice.”[82]Daniel Morris then said that when the claimant took advice they would respond through the appropriate channels. They would not enter into any further email correspondence directly. He said: “OK our position has been set out all right.” The claimant replied “all right”. The call then came to an abrupt end. We accept the claimant’s evidence that Daniel Morris put the phone down without saying goodbye.[83]Within 5 minutes, Suzanne Greaves wrote to the claimant to confirm, following that conversation, that there were no vacancies in the post appointment department at that time.[84]The claimant replied shortly afterwards, she wrote: “as you have advised you cannot offer any adjustments to the role or offer any alternative vacancies at the moment, can you confirm if you are suspending me which would be at my usual rate of pay?”[85]Suzanne Greaves replied: “Your employment was terminated by mutual consent on Monday, 8 October 2018. You therefore have not been suspended as you are no longer an employee – therefore suspension rules do not apply. “As previously mentioned, there is the option for you to return back to work on an employed basis in your original role of insolvency administrator-drafter. “You accepted this offer in your email dated 16 October, yet we are still waiting on a confirmed start date for you. “Please can you advise of a suitable return date.”[86]On 24 October 2018, Suzanne Greaves wrote again to the claimant. She offered the claimant a position handling all the incoming post appointment calls into the Customer Service Department, resolving any queries or transferring the call to the correct team, actioning any customer service email queries and postal queries.[87]The claimant did not reply to this letter. We accept the claimant’s evidence that she had lost faith in the respondent by this point. Also, as previously noted, the claimant was unwell, either suffering or having just suffered a miscarriage.[88]On 26 October 2018, the claimant contacted ACAS under the early conciliation procedure. The ACAS certificate was issued on 26 November 2018 and the claimant presented her claim to this employment tribunal on 7 January 2019.[89]We make the following additional findings of fact in relation to the complaints of unlawful deduction from wages.[90]In relation to holiday pay, we find that employees were paid up to the 10th day of each month. The claimant’s employment ended on 8 October. By this date, payroll had already been processed and payment was made to the claimant for the month ending 10 October 2018 as if she had worked for the whole month. She was, therefore, paid for 9 and 10 October although she did not work on these days. The parties agree that the claimant had 2 days’ accrued but untaken annual leave at the effective date of termination.[91]In relation to the refer a friend scheme, the only documentary evidence shown to us is a letter which it is accepted the claimant had not seen, since this predated her employment. However, what is written in this letter from Suzanne Greaves to staff dated 7 January 2016 is consistent with what the claimant says she was told about the scheme. If an employee referred a family member or a friend as a possible employee, the employee who referred them would receive £150 payable after the candidate had passed their 3 month probationary and a further £200 after the candidate had completed a full 6 months’ service. The email does not say that the referring employee had to still be a current employee at the time the payments fell due. There was nothing in the respondent’s witness statements about the scheme. Suzanne Greaves gave additional oral evidence that the employee had to be employed at the time the payment was made. We find that the respondent had never made such a payment to someone who was not still employed at the date the payment became due. The claimant is unable to give us any information to the contrary. There is no evidence that the claimant was told that she had to still be in employment to receive such a payment.[92]In relation to bonuses for variation requests, we found the evidence to be extremely unsatisfactory. We would have expected the respondent to have provided us with some documentary evidence about the criteria for payment and the amount of payment due. The claimant’s contract of employment is silent about payment other than for basic salary and overtime. The respondent’s witness statements do not address this issue. Lucy Waring gave some additional oral evidence about this. This was to the effect that, as well as spotting the change in circumstances which could lead to a variation to the IVA, the employee had to make a call to the client to explain the situation and agree to the variation being made. We accept that the claimant’s evidence reflects her understanding of the scheme. This is consistent with what she wrote to Suzanne Greaves about payment for variation requests she had put forward in her email of 12 October 2018. She was advised by a manager, Adam, that variations she requested would be verified by him and she would not be required to contact the client. We are unclear as to the amount that would be due for any verified variation request. In that email, it appears that she was accepting that payment of £20 was correct for 4 cases. However, she is claiming a payment which would be much more than £5 per case. The respondent did not reply to the substance of what the claimant said about payment due for variation requests in correspondence. Their responses to these proceedings did not give any information about the criteria under which payment might become due, simply admitting that the claimant was entitled to payment for variations at £5 each totalling £20 and denied that any further payment was owed to the claimant. Comments on credibility of the claimant[93]In relation to matters where there are disputes on relevant facts, we have explained why we have referred one version of events over the other. In particular, we have explained why we have accepted the evidence of the claimant and rejected that of the respondent in relation to what happened at the crucial meeting on 8 October 2018.[94]We would not normally make generalised comments about the credibility of witnesses. However, the respondent, in defending this claim, has launched an attack on the credibility of the claimant. In particular, in paragraph 20 of Miss Trotter’s skeleton argument, she writes: “The respondent contends that this claimant is not a witness of truth, and lacks credibility. The reality is that she has sought to capitalise on a change in employment status in light of her pregnancy in a cynical and disingenuous way. The accounts she gives of events are not supported by contemporaneous documents and call transcripts, and the respondent respectfully asks the tribunal to dismiss the claims in their entirety.”[95]For the reasons we have given, we have concluded that the claimant’s account of events is more consistent with contemporaneous documents than the respondent’s account. It is also inherently more plausible.[96]The claimant has been consistent in all essential elements of her case. Her evidence was not shaken by rigorous cross-examination. The claimant appeared to us to be doing her best to give truthful evidence. We consider that the respondent’s attack on the claimant’s credibility is entirely unwarranted. Submissions[97]Miss Trotter made oral submissions in addition to a written skeleton argument she had produced at the start of the hearing.[98]Ms Trotter’s oral submissions were, in summary, as follows. She submitted that we should prefer the evidence the respondent to that of the claimant.[99]In relation to the wages claim about the variation bonus, Miss Trotter referred to Lucy Waring’s evidence. She submitted that contact with the client was fundamental to the variation process and necessary before the bonus was earned and it would be extraordinary if noting the change only was needed.[100]In relation to holiday pay, she submitted that the claimant had been paid this by being paid for the 2 days between 8 and 10 October.[101]In relation to the refer a friend bonus, Miss Trotter submitted this only applied to current employees, referring to the email from Suzanne Greaves.[102]In relation to the unfair dismissal claim, Miss Trotter argued that the principles in Patel v Folkestone Nursing Home Limited [2018] EWCA Civ 1843 CA applied equally where there was no contractual right of appeal to where there was a contractual right of appeal. Miss Trotter referred to the evidence of Suzanne Greaves that she did not think she was determining an appeal. Miss Trotter submitted that an employer does not have to know what they are doing to be bound by the effects of their actions. The claimant put in an appeal against dismissal. The respondent responded that she could return on an employed basis. The appeal had been successful. This was an explicit decision to reinstate.[103]Miss Trotter submitted that Patel could apply to a section 18 Equality Act claim. At its highest, the tribunal could find that the claimant was dismissed, that was reversed so it was extinguished. Miss Trotter submitted that the claimant did not have the building block to get to an Equality Act claim. If the claimant could not establish a live dismissal, the Equality Act claim must fail. Miss Trotter submitted that a dismissal could not be extinguished under one statutory regime but remain live for another.[104]Miss Trotter confirmed that the respondent no longer advanced the phone phobia as an alternative reason for dismissal. The respondent did not have an alternative positive case to put forward about the reason for dismissal.[105]In relation to the breach of contract claim, Miss Trotter submitted that if the tribunal found there was a dismissal, the claimant was entitled to statutory notice. She submitted that a throwaway comment was not sufficient to bring about a variation of contract.[106]The claimant, who had become unwell during the course of Miss Trotter’s submissions, chose not to make any submissions. Law[107]Section 99 Employment Rights Act 1996 (the 1996 Act) read with the Maternity and Parental Leave etc Regulations 1999, provides, amongst other things, that an employee who is dismissed shall be regarded as unfairly dismissed if the reason or principal reason for the dismissal is that the employee is pregnant. The normal one year qualifying period for unfair dismissal does not apply (section 108(3) 1996 Act). However, where an employee does not have the year’s continuous service necessary to claim “ordinary” unfair dismissal, the burden of proof is on the employee to prove that the reason for dismissal was a prescribed reason within section 99 1996 Act: Smith v Hayle Town Council [1978] ICR 996 CA.[108]Section 18(2) of the Equality Act 2010 (EqA) provides: “A person(a) (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably (a) because of the pregnancy, or(b) because of illness suffered by her as a result of it……”[109]The protected period begins when the pregnancy begins.[110]Section 39(2) EqA provides, amongst other things, that an employer must not discriminate against an employee by dismissing the employee.[111]Section 13(1) of the Employment Rights Act 1996 provides that an employer shall not make a deduction from wages of a worker employed by him unless 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 the worker has previously signified in writing his agreement or consent to the making of the deduction. An employee has a right to complain to an Employment Tribunal of an unlawful deduction from wages pursuant to Section 23 of the Employment Rights Act 1996.[112]We were referred to the cases of Patel v Folkestone Nursing Home Limited [2018] EWCA Civ 1843 CA and Salmon v Castlebeck Care (Teesdale) Ltd [2015] IRLR 189 EAT in relation to the concept of a dismissal “disappearing” because of a successful outcome to an appeal against dismissal. We address the application of these cases in our conclusions. Conclusions s.99 Employment Rights Act 1996 unfair dismissal
Conclusions
[113]The first issue to consider is whether the claimant was dismissed. In our findings of fact, we found that Daniel Morris told the claimant on 8 October 2018 that she was dismissed. He told her that this was because of her absence. After she told him that she was pregnant and that her absences were related to pregnancy, he confirmed that she was still dismissed. (See paragraph 48).[114]Miss Trotter has advanced, on behalf of the respondent, an argument that, in accordance with Patel v Folkestone Nursing home, the Salmon case and other cases referred to in the Patel case, the dismissal is treated as “disappearing” because the claimant appealed against her dismissal and that appeal was determined in her favour.[115]We do not accept the respondent’s arguments for a number of reasons.[116]As a matter of principle, we do not consider that this line of authorities applies where there is no contractual right of appeal. All the decided cases deal with contractual rights of appeal. Miss Trotter argues that the principle can be extended more widely. However, having considered carefully the case law, we do not agree. It appears to us that the reasoning underpinning the decisions rests on there being contractual rights. We refer, in particular, to paragraphs 26 to 29 of the Patel decision. Paragraph 29 states: “If an appeal is brought pursuant to such a term [a right of appeal under the contract] and is successful, the employer is contractually bound to treat the previous dismissal as having no effect and the employee is bound in the same way. That is inherent in the very concept of an appeal in respect of a disciplinary dismissal.”[117]If there is no contractual right to appeal, it appears to us that, if an employee is allowed, at the employer’s discretion, to appeal and is successful in that appeal the employee and employer cannot be contractually bound to treat the dismissal as having no effect.[118]There was no contractual right of appeal in this case, as is conceded by the respondent. The respondent’s discipline, grievance and appeal procedure is stated to be non-contractual. In any event, the contract of employment states that the procedure does not apply until someone has been employed for 12 months. The claimant had less than 12 months’ service when dismissed.[119]Even if we are wrong in our conclusion that the case law does not apply where there is no contractual right of appeal, we would have concluded that the principles in Patel have no relevance given the facts in this case. Although the claimant wrote to the respondent asking to appeal against her dismissal, we conclude that it was not dealt with as an appeal by Suzanne Greaves. Suzanne Greaves told us that she did not consider she was determining an appeal (see paragraph 69). Miss Trotter argued that it was not necessary for Mrs Greaves to know what she was doing for it to have the effect of being the outcome of an appeal. We are doubtful that the Patel principles could apply if the respondent did not know that they were determining an appeal. In any event, the respondent did not act in accordance with the respondent’s own appeal process. There was no appeal hearing, for example. Suzanne Greaves did not tell the claimant that she had allowed her appeal. If the Patel principles had applied, the claimant would automatically have been reinstated. This did not happen. Instead of determining an appeal, we conclude that the respondent was making an offer of re-employment following a dismissal.[120]For these reasons, we reject the argument of the respondent and conclude that the dismissal is not to be treated as not having occurred for the purposes of the unfair dismissal claim.[121]We have concluded the claimant was dismissed. The next issue is whether the reason or principal reason for dismissal was connected with the claimant’s pregnancy. We have found that Daniel Morris told the claimant that she was dismissed because of absences. Her absences were related to her pregnancy.[122]Daniel Morris says that he did not know, before the meeting on 8 October 2018, that the claimant was pregnant. The claimant has not challenged him on that evidence, so we proceed on the basis that Daniel Morris did not know, before the meeting began, that she was pregnant.[123]It has not been argued on behalf of the respondent that, because Daniel Morris did not know that the claimant was pregnant before he decided initially to dismiss her, that the reason or principal reason for dismissal could not be connected with pregnancy. However, we have considered whether such knowledge was essential. It does not appear to us that knowledge of the reason for absence is required if, as a matter of fact, absence is connected with pregnancy.[124]Even if such knowledge is required, on the facts in this case, once the claimant had told Mr Morris the reasons for her absence and he had an opportunity to retract the dismissal, he did not do so but confirmed that, whatever the reason for her absence, he was dismissing her (see paragraph 48). In the circumstances, we conclude that the reason or principal reason for dismissal was pregnancy-related absence and, therefore, was connected with the claimant’s pregnancy.[125]We conclude that the complaint of unfair dismissal under section 99 of the Employment Rights Act 1996 and the 1999 Regulations is well founded. The dismissal was unfair. s.18 and 39 Equality Act 2010 claim[126]On the facts, we have found that the claimant was dismissed on 8 October 2018.[127]Miss Trotter sought to apply the Patel principles to the Equality Act claim. We conclude that these principles cannot be applied to an Equality Act claim. The case law only relates to unfair dismissal complaints. The case law relates to a technical device by which a dismissal is deemed not to have occurred for the purposes of an unfair dismissal complaint. It does not mean that the act of dismissal complained about never occurred. If an act was an act of discrimination, the Patel principles cannot mean that discrimination is erased. There could be points to raise at the remedy stage relating to the offer of re-employment but this does not affect whether there was an act of discrimination.[128]Even if we were wrong and the Patel principles could apply to erase a dismissal for the purposes of a section 18 Equality Act claim, for the reasons we gave in relation to the section 99 Employment Rights Act unfair dismissal claim, we conclude that the Patel principles would not apply in this case.[129]We found that the claimant was dismissed because of absence for pregnancyrelated reasons. We conclude that the claimant was treated unfavourably by being dismissed and this was because of illness suffered by her as a result of pregnancy. We conclude that the complaint of discrimination under section 18 of the Equality Act 2010 is well founded. Breach of contract[130]We conclude that the claimant was dismissed on 8 October 2018. She was dismissed without notice. Under her original contract of employment, as varied in compliance with statutory minimum notice requirements, she was entitled to one week’s notice of termination. However, Daniel Morris told the claimant on 8 October 2018 that he would give her 2 weeks’ notice. We conclude that this was a variation of the contract. The respondent was in breach of contract by dismissing the claimant without notice and the period of notice to which she was entitled was 2 weeks. Holiday pay[131]As noted in our findings of fact, the claimant was paid up to 10 October 2018, although her employment terminated on 8 October 2018. The parties agree that the claimant had accrued 2 days leave by the effective date of termination. By coincidence, this equated to the 2 extra days for which the claimant was paid but had not worked. It is understandable, since this was not explained to the claimant, and no payment of holiday pay was expressly noted on the payslip, that the claimant thought she had not been paid for her holiday entitlement. However, we conclude that, because the claimant had been paid for 2 days for which she had not worked, she had, in practice, been paid in lieu of accrued but untaken holiday. We, therefore, conclude that this complaint of unlawful deduction from wages is not well founded. Refer a friend[132]The claimant seeks the payment of £350 for introducing her friend J to the respondent’s employment. The respondent denies entitlement on the basis that the claimant was not still employed at the time the payments would have become due. They have not argued that J did not remain employed for the required period. The only documentation provided by the respondent about the scheme does not say expressly that the referring employee has to still be in employment at the time the payment would become due. There is no evidence that the claimant was told that this was the case. However, we have accepted the evidence of Suzanne Greaves which is to the effect that payments are only made to referring employees who are still in employment themselves. This would be consistent with the practice in many such bonus schemes. The claimant has not been able to provide evidence that payments were ever made under this scheme to people who had already left the respondent’s employment. The burden of proof is on the claimant to satisfy us that payment was due to her. She has not managed to discharge this burden of proof and satisfy us that she met all the criteria for payment. We, therefore, conclude that this complaint is not well founded. Variation request[133]The claimant seeks a payment of £640, £20 already having been paid to her. The respondent denies that there is any entitlement to any further payment because the claimant did not make calls to the clients after identifying changes in circumstance which could lead to a variation. As we noted above, the evidence in relation to this matter is unsatisfactory. We would have expected the respondent to have produced documentary evidence about the criteria for the scheme and the amount of payments due. We have not heard of any requests for specific disclosure being made by the claimant relating to this complaint which have not been complied with. If the claimant did not make any such request, this is likely to be due to the claimant’s inexperience, being a litigant in person (although it does not excuse any failure by the respondent to comply with the general order as to disclosure).[134]The burden of proof is on the claimant to satisfy us that payment was due to her. We do not consider that possible failures in relation to disclosure on the part of the respondent are sufficient to enable us to conclude that the claimant was entitled to payments which have not been made. We conclude that the claimant has not satisfied us, on a balance of probabilities, that she has met the requirements of the bonus scheme and that particular amounts were due to her which were not paid. We, therefore, conclude that this complaint is not well founded.
Introduction
[1]The respondent is ordered to pay to the claimant compensation of £64,783, including interest, for the acts of discrimination contrary to s.18 and s.39 Equality Act 2010 which the Tribunal found to have occurred, as set out in the Tribunal’s judgment on liability sent to the parties on 14 February 2020.[2]No award of compensation is made for unfair dismissal since compensation for loss of earnings has been included in the compensation for unlawful discrimination.[3]No award of damages is made for breach of contract since compensation for the notice period has been included in the compensation for unlawful discrimination.[1]This was a hearing conducted by video conference (CVP) to which the parties had consented.[2]This was a remedy hearing following from judgment given orally on 7 February 2020, for which the written judgment and reasons were sent to the parties on 14 February 2020.[3]We heard evidence and the respondent’s oral submissions in the course of 21-22 April 2021, but the claimant did not feel well enough to make her submissions orally. The claimant informed the Tribunal over the lunch break on the second day of the hearing that she was having contractions. She said after the lunch break that she wanted to carry on. We, therefore, went on to hear the respondent’s oral submissions, although the judge told the claimant that we could stop at any time. After Mr Boyd had made his oral submissions, the claimant told us that she did not feel well enough to do oral submissions that day but suggested she could do them in writing for the following day. We agreed that the claimant could provide written submissions by 26 April 2021, to which the respondent would have a right to respond by 30 April 2021, although we informed the claimant that, if she did go into labour, she should ask someone to write on her behalf to the Tribunal to ask for an extension of time to provide her submissions. In the event, the claimant provided written submissions and the respondent a written reply to the timetable that had been agreed and the Tribunal reached its decision in chambers on 14 June 2021.
Issues
[4]The Tribunal had to determine remedy for the following complaints: 4.1. Unfair dismissal 4.2. Discrimination in relation to dismissal, contrary to s.18 and s.39 Equality Act 2010. 4.3. Breach of contract for dismissing the claimant without notice. Evidence[5]The claimant, her husband, Georgi Georgiev, and her mother, Hina Premjee, provided written witness statements and gave oral evidence. The claimant also relied on the witness statement that she had produced for the previous hearing which had decided liability. There was no witness evidence for the respondent at the remedy hearing.[6]There was an electronic bundle of documents of 532 pages. During the course of the hearing, the claimant provided us with some additional documents relating to her claims for Employment Support Allowance and Personal Independence Payment. Page references in these reasons are to the electronic numbers of pages in the bundle (which did not correspond completely to the printed numbers, of which there were sometimes several numbers on one page).
Facts
[7]We rely on facts found in our judgment and reasons on liability sent to the parties on 14 February 2020. References indicated by “J[number]”, relate to paragraphs in those reasons on liability. We make the following additional findings of fact.[8]The claimant had some issues with her mental health prior to her employment with the respondent. Her medical information included that she had had a prolonged period off work with depression some years prior to 2012. However, she had not had any lengthy time off work due to mental health issues for quite some years prior to her employment with the respondent.[9]The claimant’s employment with the respondent ended on 8 October 2018.[10]The claimant began looking for work, attending the job centre by 15 October 2018. (p.274).[11]GP notes from 15 October 2018 recorded that the claimant had been dismissed. The GP noted that she was under a lot of stress but had no thoughts of selfharm/suicide. (260). The notes also refer to planning a wedding as a source of stress and to the claimant being worried about family members, other than her mother, finding out she was pregnant. (p.274)[12]From GP records, we find that, on a date after 15 October and before 25 October 2018, the claimant had a miscarriage. (p.272)[13]The claimant, when it was suggested to her that she might be downplaying how upset she was to emphasise the treatment of the respondent, referred to her pregnancy having been a shock and to having had a 5 year plan to work her way up the career ladder, buy a house and then have a baby. She said the miscarriage was upsetting but she was so consumed with everything else she did not feel she grieved.[14]GP notes from 16 November 2018 refer to the claimant having anxiety, but recorded that it was entirely normal to feel anxious and upset post-miscarriage and loss of job.[15]The claimant got engaged just before she was dismissed. She planned her wedding at short notice and she and her husband got married on 22 November 2018. The claimant says she did not find the planning stressful, since the venue arranged everything apart from the claimant buying a dress. We find, based on the GP notes, that it is more likely than not that the claimant found the preparation for the wedding stressful to some extent, but it was not a major factor in the way she was feeling at that time, given that the venue was organising virtually everything. The claimant found the wedding day itself stressful, being around other people.[16]GP notes from 3 December 2018 (p.261) refer to the claimant suffering from depression and her relationship being under strain. There are references to feeling low, poor motivation, poor care of self and that she did not want medication but now felt she needed it.[17]In December 2018, the claimant attempted suicide by means of an overdose of paracetamol. Her husband found her, and she was sick so did not need to have her stomach pumped.[18]At the end of 2018, the claimant was not in a fit state to work or fill in any application forms.[19]The claimant had, about 3-4 years before her dismissal, occasionally acted as a make-up model on an unpaid basis. In the period December 2018 to November 2019, she occasionally provided her services on a voluntary basis and sometimes for payment for the P. Louise Academy. Over 11 months, she attended 17 sessions, sometimes just for half a day. She received 12 payments for this work, totalling £717.[20]The claimant presented her claim on 7 January 2019.[21]On 7 March 2019, the claimant’s GP received a notification of a work capability assessment for the claimant. This stated that she met the criteria for employment and support allowance, having been assessed as having limited or no capability for work. The claimant’s GP was informed that the GP no longer needed to issue an NHS medical certificate for the claimant to claim benefits. (p.347)[22]The claimant only felt well enough to start applying for jobs in September 2019. There are a number of documents suggesting the claimant was looking for work in September and early October 2019.[23]On 7 October 2019, the claimant suffered a second miscarriage.[24]Also in October 2019, the claimant made a second suicide attempt, taking an overdose and being found in the bath. The claimant was unsure whether the suicide attempt was before or after the miscarriage. The claimant’s mother thought this was before the miscarriage. However, the GP notes suggest that the suicide attempt followed the miscarriage. We find, based on the medical notes, that the suicide attempt followed the miscarriage. (p.271).[25]On 28 October 2019, the claimant was offered employment with UK Debt Services, with people she had previously worked with. The claimant informed them that she was suffering from depression. She felt unable to return to full-time work because of this and she began work on a part-time basis, working 25 hours per week, 10 a.m. to 3 p.m., with effect from 4 November 2019. The claimant ceased to receive Employment Support Allowance (ESA) on starting work.[26]The claimant continued to have problems with anxiety, stress and depression during her employment with UK Debt Services. GP notes from 13 November 2019 record that she told the GP that she had been offered work by an old boss after coming out of hospital and felt she could not say no but was struggling with the work, finding it difficult to concentrate, not sleeping very well and having fleeting thoughts of not being here. On the basis of Mr Georgiev’s evidence, we find that a factor in the claimant’s return to work was also their difficult financial situation. Based on the claimant’s evidence, she also felt that going to work would give her something to focus on and help her recovery.[27]On 16 November 2019, the claimant’s GP wrote a letter “to whom it may concern”, in which the GP wrote (p.253): “She [the claimant] has been going through a tough time recently and has been experiencing extreme anxiousness, anxiety and panic attacks. She has been under counselling for that reason, she was also recommended to be put on medication. According to Maya her symptoms have gone worse since she had an incident in her previous job where she was sacked, that put a lot of stress on her and she is not managing well ever since.”[28]The claimant was receiving counselling through an organisation called Healthy Minds. The claimant could not recall exactly when the counselling began, but thought it may have been a few months after the suicide attempt in December 2019. The claimant joined the Creative Living Centre, which arranged the counselling.[29]The claimant was dismissed by UK Debt Services with effect from 17 February 2020. In a letter dated 21 February 2020, she was informed that the reason for the decision was due to concerns over her suitability for the role in the company. The claimant disputes the reasons given and is claiming, in separate Tribunal proceedings, that the termination of her employment was disability discrimination.[30]The claimant had hoped, if her health permitted, to stay with UK Debt Services for at least 5 years.[31]GP notes from 24 February 2020 refer to the claimant having lost the job with UK Debt Services. It describes that she is feeling a lot of stress from the original case, and, although having expected closure after winning the case, she was feeling stress from deadlines relating to an appeal. There is reference to fleeting suicidal thoughts and an adverse reaction to medication. The notes refer to her having started going to Creative Living and finding this helpful.[32]GP notes from 3 March 2020, show that the claimant was having suicidal thoughts (p.256).[33]There is evidence of the claimant looking for jobs from March 2020.[34]The claimant began to receive universal credit from 17 April 2020. This later changed to new style employment support allowance.[35]GP notes from 22 April 2020 (p.266) record that the claimant was feeling low in mood, energy and motivation. The notes referred to having been dismissed from her last 2 jobs and the claimant having fleeting thoughts that people would be better off without her, although she had no plans to harm herself.[36]The claimant presented a claim against UK Debt Service Limited on 18 May 2020 for disability discrimination (p.506). That case is still to be heard.[37]The claimant has asserted, in her claim against UK Debt Service Limited, that the actions of that company put her mental health in the worst state it had ever been in. However, in evidence to this Tribunal, she said that was not true, it had spiralled before that and continued to get worse. We consider it more likely than not that the claimant, when writing the details of claim against UK Debt Service Limited, genuinely considered that her treatment by UK Debt Service Limited had, at least, made a significant contribution towards her mental health deteriorating to the worst state it had been in.[38]GP notes from 18 June 2020 (p.265) record that she had not reacted well to medication and was struggling to sleep. She lacked motivation to do anything at all. The notes record that the claimant said she was under a lot of pressure and could not cope.[39]Medical notes from 28 July 2020 record ongoing issues with stress (p.264), and problems with anti-depressants. They refer to the claimant having thoughts of being better off not being here but not having any plans to act on the thoughts. They refer to the claimant having support from Creative Living. The notes record that the claimant was finding the stress overwhelming. She lacked motivation to get out of bed. The claimant referred to the cases having taken over her life. She referred to being constantly worried and on edge.[40]We have not seen any relevant GP notes after 28 July 2020.[41]The claimant was been awarded a Personal Independence Payment from 28 September 2020. Part of this is to help with the claimant’s mobility needs. The claimant suffers with joint pains and muscle pains. We accept the claimant’s evidence that that PIP was awarded partly due to suffering from depression and partly because of the physical health issues.[42]Alex Ryder gave evidence at the liability hearing that there was a bonus of £20 each for drafting 60 or more IVA cases per month. Below that, no bonus was payable. We accept his evidence in relation to the bonus arrangements. We also accept the claimant’s evidence that, if an employee was on holiday or sick leave, the target was pro-rated. The claimant received a bonus of £400 in October 2018 because the target was pro-rated because she was on sick leave for part of that month. Alex Ryder and Lucy Waring informed the claimant at a meeting on 13 or 14 September 2018 that she was doing just fine and would have no problems passing her probationary period based on the standard of her proposals and that her work and performance were more than satisfactory (J16).[43]The claimant was, at the time of the remedy hearing, pregnant with twins and close to her due date.[44]The claimant took medication for depression and anxiety at various times until shortly before her current pregnancy, about 8 months prior to the remedy hearing. She was not on medication constantly, because some types made her very ill and she tried a number of different kinds.[45]We had no expert evidence to assist us in relation to the claim for personal injury.[46]From the claimant’s bank statements, it appears she received benefits from the DWP totalling £3831.65 in the period after 8 October 2018 until starting work with UK Debt Services on 4 November 2019.[47]Since 12 April 2021, the claimant has received new style ESA of £114.10 per week and PIP of £152.15 per week. The parties agreed that the Tribunal could use an estimate of ESA at £113 per week prior to 13 April 2021 in the absence of specific information about the amount received.[48]The claimant’s net basic weekly pay with the respondent was £352.74. As noted previously, the claimant had been assured by Alex Ryder and Lucy Waring that her work and performance were more than satisfactory which suggests to us that the claimant would have been expected normally to meet the target to receive some bonus (60 cases per month). The fact that the claimant received a bonus of £400 in October 2018 on a pro rata basis suggests to us that the claimant was performing well enough for the respondent to have expected her to receive a bonus of £1200 for a month when she worked for the full month.[49]The claimant’s net monthly pay with UK Debt Services Ltd was £1654.88, based on information in her December 2019 payslip, giving a net weekly equivalent of £381.90. Submissions[50]Mr Boyd provided written summary submissions and made oral submissions on behalf of the respondent.[51]Mr Boyd submitted that the employment with UK Debt Service Limited broke the chain of causation; term save for what the claimant now alleges is discriminatory treatment.[52]In relation to the personal injury claim, Mr Boyd submitted that, in the absence of a medical report, the tribunal did not have the evidence it would need in relation to diagnosis, prognosis and causative link with events at work. The claimant had suffered anxiety and depression before the events. She had a number of significant life challenging events. Mr Boyd suggested that the claimant’s evidence to the tribunal seemed to downplay those events. He submitted that any injury was caused not by the respondent but by the life events.[53]Mr Boyd submitted that, in relation to the period 8 October 2018 to 4 November 2019, the tribunal would need to consider the extent to which life events in the claimant’s life would have occurred in any event and the impact they might have had on the claimant’s job with the respondent. He suggested the claimant would likely have taken time away from work which would have an impact on what she could recover.[54]We note that the respondent’s counter schedule of loss includes loss of basic salary to 7 October 2019 (the date of the second miscarriage) and does not make any deduction for any time that the claimant might have taken off work following the first miscarriage.[55]In relation to aggravated damages, Mr Boyd referred to Rookes v Barnard [1964] UKHL 1 and HM Prison Service v Johnson [1997] IRLR 162. He submitted that it was not the case here that conduct was malicious, insulting or oppressive behaviour or treatment based on prejudice or animosity which was spiteful or vindictive or intended to wound.[56]In relation to the alleged breach of an ACAS code, Mr Boyd submitted that there was no alleged failure against a relevant Code in this case.[57]In a written reply to the claimant’s submissions, Mr Boyd made some points where he submitted that the claimant had, in her submissions, mischaracterised evidence given during the course of the hearing or misrepresented/misunderstood things said by Counsel or attempted to introduce new evidence. He reminded the Tribunal that, where in the submissions, the claimant seeks to introduce new evidence, that evidence should be ignored.[58]The claimant provided written submissions following the hearing. The claimant included some new information in her written submissions which was not given in evidence. The Tribunal has not made any findings of fact on the basis of new evidence in the claimant’s submissions.[59]The claimant made submissions about the facts in the case. We do not seek to summarise these submissions, which can be read in full, if required.
Law
[60]Section 124(6) of the Equality Act 2010 provides that the amount of compensation which may be awarded for a breach of the Equality Act in relation to work is “the amount which could be awarded by a county court…under section 119”. Section 119 provides that the county court has power to grant any remedy which could be granted by the High Court in proceedings in tort and section 119(4) provides: “an award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis)”. The aim of damages in tort is to put the claimant in the position they would have been in, had the act of discrimination not occurred. Compensation (with the possible exception of exemplary damages which may be relevant in rare cases) is to compensate for loss caused by the act of discrimination. There is no limit on compensation for discrimination.[61]A new intervening act may break the chain of causation so that the respondent is not liable for loss occurring after that new act. We were referred to Dench v Flynn & Partners [1998] IRLR 653 CA in relation to breaks in the chain of causation.[62]In relation to compensation for injury to feeling, we have regard to the guidelines in Vento v Chief Constable of West Yorkshire Police (no.2) [2003] IRLR 102. We note, in particular, the guidance that awards are compensatory and not punitive. Vento sets out the bands that we must consider. These were amended by the case of Da’Bell v NSPCC [2010] IRLR 19. The Court of Appeal in Da Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879, held that the 10% uplift provided for in Simmons v Castle [2012] EWCA Civ 1039, should also apply to employment tribunal awards of compensation for injury to feelings and psychiatric injury in England and Wales. The Court of Appeal invited the President of the Employment Tribunals to issue guidance adjusting the Vento figures for inflation and incorporating the Simmons v Castle uplift. The Presidents of the Employment Tribunals in England and Wales and Scotland issued joint guidance, which has been updated on a number of occasions. The guidance provides that, in relation to cases presented after 6 April 2018 (which is the relevant date for this case), the Vento bands are as follows: lower band £900- £8,600 (less serious cases); middle band £8600 - £25,700 (cases that do not merit an award in the upper band); and upper band £25,700 - £42,900 (the most serious cases). In the most exceptional cases, the award can exceed £42,900.[63]The Tribunal has jurisdiction to award compensation for personal injury arising out of unlawful discrimination: Sheriff v Klyne Tugs (Lowestoft) Limited [1999] ICR 1170. The Judicial Studies Board issues Guidelines for Assessment of Damages in Personal Injury Litigation which includes a chapter on Psychiatric and Psychological Damage.[64]The Tribunal may make separate awards for injury to feelings and for personal injury, but the Tribunal must avoid double counting; not compensating for the same injury under two separate heads of damages.[65]A Tribunal may make a separate award of aggravated damages in certain circumstances or may include within an award of compensation for injury to feelings compensation for features which could merit an award of aggravated damages. An award of aggravated damages is to compensate the claimant for hurt feelings, not to punish the respondent. Mr Justice Underhill, then President of the EAT, in Commissioner of Police of the Metropolis v Shaw 2012 ICR 464, EAT, set out circumstances in which an award of aggravated damages might be made. The one which appears to be relied on by the claimant in this case is as follows: where subsequent conduct adds to the injury — for example, where the employer conducts tribunal proceedings in an unnecessarily offensive manner, or ‘rubs salt in the wound’ by plainly showing that it does not take the claimant’s complaint of discrimination seriously. Conclusions Loss of earnings
Conclusions
[66]We have decided to award loss of earnings under the heading of compensation for discrimination, rather than unfair dismissal.[67]As noted previously, the aim of damages for discrimination is to put the claimant as far as possible in the position she would have been in, had the act of discrimination not occurred.[68]We have concluded that the employment with UK Debt Services was a new intervening act, which means that loss of earnings after the termination of that employment does not flow from the respondent’s act of discrimination. The claimant viewed the job with UK Debt Services as a long term prospect. She knew the people she was to work for and felt confident in the role. She described herself in the claim form for the claim against UK Debt Services as happy and content in the role and that she was regaining her confidence. She felt she was performing well and receiving good feedback. This was not a potentially unsuitable role, taken as a short term measure. On the information available to us, it does not appear that the termination of that employment was related to the actions of the respondent. It was not predictable that the employment would end as and when it did.[69]The respondent accepted, in its counter schedule of loss, that the claimant was entitled to loss of earnings up to 7 October 2019, the date of the second miscarriage. We see no particular reason why the claimant should not be compensated for loss of earnings in the period from 7 October 2019 until she started her employment with UK Debt Services on 4 November 2019. The respondent did not, in its counter schedule of loss, suggest that any deduction should be made for the period immediately following the first miscarriage so we do not see why loss of earnings should be stopped at the time of the second miscarriage. The respondent has not given any evidence that the claimant would not have received any pay in a period of absence when she was recovering from a miscarriage. We have no evidence to suggest that she would have taken nearly a month off work after the second miscarriage. We conclude, therefore, that the claimant should be compensated for her full loss of earnings in the inclusive period 9 October 2018 (the day after the effective date of termination) until 3 November 2019 (the day before she started employment with UK Debt Services) less benefits and earnings in this period.[70]The claimant’s basic pay with the respondent was £352.74 net per week, and bonus was at the rate of £1200 gross per month. We found that the claimant was performing well enough to expect to receive a bonus of £1200 for a month when she worked for the full month. There may have been months when the claimant would have been absent for part of the month, due to holiday or sickness absence, and would, therefore, have received bonus on a pro rata basis. There may have been the occasional month when the claimant would not have reached her target and, therefore, received no bonus. However, there may have been months when the claimant would have exceeded the target of 60 cases and received more bonus than £1200. Taking all of this into account, we conclude that awarding an amount equivalent to the net equivalent of a gross bonus of £1200 per month for each week of loss will arrive at a fair estimate of the claimant’s loss of bonus. The net equivalent of £1200 per month is estimated to be that amount less 25% i.e. £900 per month, giving a net weekly figure for bonus of £207.70.[71]Given our conclusion that the claimant would have received bonus, the claimant’s total net weekly earnings with the respondent, including bonus, were greater than her earnings with UK Debt Services. The difference is £352.74 + £207.70 (£560.44) less £381.90 i.e. £178.54 per week. The claimant, therefore, had a continuing loss of earnings once she began work with UK Debt Services. We conclude that the claimant would have been likely, had her employment not ended when it did, to have been able to increase her earnings with UK Debt Services, by earning commission and/or increasing her hours of work, so that, after 6 months, she was on equivalent earnings to those with the respondent. We, therefore, award 6 months difference in earnings as part of the award for loss of earnings.[72]Interest is awarded on the compensation for loss of earnings at the rate of 8% from the midpoint between the act of discrimination – 8 October 2018 – and the calculation date, which is 14 June 2021.[73]The calculation of loss of earnings and interest is included in the schedule at the end of these reasons. Uplift for failure to follow ACAS Code of Practice[74]The claimant has not identified what Code of Practice she considers to have been breached and in what way this has been breached. The claimant did not submit an internal grievance, so there is no failure to follow the grievance parts of the ACAS Code of Practice on Discipline and Grievance. There is no Code of Practice which was applicable to the claimant’s dismissal, which was not for a disciplinary offence. We do not, therefore, consider that we have power to make an increase in compensation under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992. Personal injury claim[75]We have had no expert medical evidence to assist us in determining whether the claimant has suffered psychiatric damage as a result of the acts of discrimination and, if so, the extent of this damage and the relevant category under the Judicial College Guidelines. Whilst it is not always essential for a Tribunal to have expert medical evidence to make an assessment of damages for personal injury, we consider that, in this case, where there are other factors at play which may have contributed to any psychiatric damage, the miscarriages and the termination of the claimant’s employment by UK Debt Services, we consider that expert medical evidence would be required to enable us to assess the extent of the harm caused by the acts of discrimination, as opposed to other factors. The GP notes and the letter from Healthy Minds do not provide us with sufficient information to be able to make this assessment.[76]We have, therefore, concluded that we should not make a separate award of damages for personal injury in this case. We will, however, take account of many of the matters which would be relevant to a personal injury award, in arriving at an appropriate figure for compensation for injury to feelings. Compensation for injury to feelings[77]The claimant had an existing vulnerability to anxiety and depression. However, she had not had a lengthy period of time off work due to this, prior to her dismissal by the respondent. The claimant may have reacted more strongly to the acts of discrimination than some other people may have done, but the respondent is required to compensate the claimant for the full extent of the injury suffered as a result of discrimination.[78]The claimant had a series of very difficult life events to cope with. She suffered a number of miscarriages, the first of which was only a few weeks after the acts of discrimination. After starting new employment with UK Debt Services, that employment was ended in circumstances which she considers amount to disability discrimination.[79]The claimant suffered from anxiety and depression following her dismissal by the respondent. However, despite that, she managed to attend the Job Centre and start looking for work within a week of leaving the respondent. She also managed to arrange her wedding, albeit by handing over the planning to the venue’s wedding planner. She suffered a miscarriage between 15 and 25 October, but went ahead with the wedding on 22 November 2018. The claimant tried to commit suicide in December 2018. She has suffered continuing problems with depression since then and suffered a further miscarriage in October 2019 and made another attempt on her life. She has been dismissed from a second job in circumstances which have led her to bring disability discrimination claims against that employer.[80]It has been particularly difficult, in this case, to identify the hurt suffered by the claimant as a result of the acts of discrimination, because of the other difficult life events which are likely to have contributed to the way she has felt over a lengthy period of time. As at the date of the remedy hearing, the claimant was receiving PIP including an element relating to depression.[81]We conclude that the combination of the claimant’s dismissal by the respondent and the first miscarriage led to the claimant feeling so bad that she attempted suicide. Without the acts of discrimination, we consider it unlikely that the claimant would have suffered so severely. She acknowledged that she was upset by the miscarriage, as we would expect would be the case. However, miscarriage is very common in the early stages of pregnancy and, had it not been for the effects of the discrimination, we consider it likely that the claimant would not have reached the depths of depression which she did. The further miscarriage and loss of the job with UK Debt Service Ltd make it difficult to know whether the claimant would have suffered ongoing depression relating to the acts of discrimination committed by the respondent had it not been for these further difficult life events.[82]Doing the best we can, we conclude that the injury to feelings suffered by the claimant as a result of the acts of discrimination falls within the upper half of the middle Vento band. We conclude that £20,000 is an appropriate award.[83]We conclude that interest should be awarded on the compensation for injury to feelings at 8% from the date of the act of discrimination, 8 October 2018, until the calculation date, 14 June 2021. The calculation of interest is set out in the schedule. Aggravated damages[84]We could award compensation for injury to feelings if we were satisfied that the respondent’s subsequent conduct added to the injury — for example, if they conducted tribunal proceedings in an unnecessarily offensive manner, or ‘rubbed salt in the wound’ by plainly showing that they did not take the claimant’s complaint of discrimination seriously. There are other circumstances in which aggravated damages may be awarded but the claimant did not rely on those other type of circumstances.[85]The claimant made a number of arguments in her schedule of loss as to why an award should be made for aggravated damages. We deal with these in turn.[86]At paragraph 21, the claimant wrote that the respondent dismissed her solely due to her pregnancy-related sickness and thereafter continue to deny and not take responsibility for their actions. We do not consider that this amounts to the type of conduct for which aggravated damages would be appropriate.[87]At paragraph 22, the claimant wrote that she believed the respondent had attempted to intimidate her throughout the process and had attempted to wear her down with persistent emails. She felt she was personally attacked and her credibility had been tarnished throughout the industry. We have not had evidence that emails from the respondent were outside the nature of emails that could reasonably be expected in preparation for tribunal proceedings. In relation to attacks on the claimant’s credibility, we dealt in our judgement on liability with the comments Ms Trotter had made on behalf of the respondent relating to the claimant’s credibility (J93-96). For the reasons we gave there, we found that the attacks on the claimant’s credibility were entirely unwarranted. However, we do not consider that the nature of the attacks on her credibility were of such a nature that they amount to conducting the tribunal proceedings in an unnecessarily offensive manner making an award of aggravated damages appropriate.[88]In paragraph 23, the claimant wrote that she felt that the respondent had continued to make things as difficult as possible for her by constantly providing documents late causing additional stress and forcing her to spend extra time chasing documents. She also referred to the respondent failing to comply with case management orders. Whilst it is regrettable, if it was the case, that the respondent provided documents late and did not comply with case management orders on time, the case was ready for hearing. We do not consider that late compliance with orders is behaviour of such nature which would allow us to make an award of aggravated damages.[89]In paragraph 24, the claimant refers to the respondent stating that she was afraid about informing her parents that she was pregnant and claimed that this was due to religious beliefs. The claimant said she had never made that comment and felt that Mr Morris came to that conclusion based on the colour of her skin and that she found this extremely upsetting. We dealt with this matter at paragraph 35 of our judgement on liability. The respondent had made this assertion in its response. However, the respondent gave no evidence to this effect, Mr Morris saying in answer to questions, that he did not know if religious belief had been discussed. We consider it regrettable that the respondent made such an assertion in their response which was not then backed up by evidence. However, we do not consider that this is sufficient to merit an award of aggravated damages.[90]In paragraph 25, the claimant referred to inconsistency in the respondent’s responses and to the respondent failing to apologise or take responsibility for what they put her through. We do not consider that this conduct is sufficient to merit an award of aggravated damages.[91]In paragraph 26, the claimant asserted that the respondent had attempted to provide false documents in the hearing. The claimant has not explained what she was referring to. We have had no evidence on the basis of which we could conclude that the respondent had attempted to provide false documents. We cannot, therefore, make an award of aggravated damages on this basis.[92]In paragraph 27, the claimant asserted that she had been informed by her employer at UK Debt Services that Mr Morris had attempted to contact him during the week of the hearing and she felt this was a way to intimidate her. The claimant did not give evidence to this effect. Even if Mr Morris did attempt to contact her employer, that contact, by itself, would not be sufficient basis to make an award of aggravated damages.[93]The claimant alleges, at page 6 of her submissions, that the respondent was untruthful to the Tribunal in claiming that she had refused to comply with a case management order about providing relevant GP and counselling records. The evidence in the bundle does not support this allegation. The respondent wrote to the Tribunal on 28 May 2020 (p.29) asserting that the claimant had not complied fully with her disclosure obligations and making a request for specific disclosure. They did not assert that the claimant had refused to comply with a case management order. In answer to a letter from the Tribunal dated 28 July 2020 (p.33), the claimant did not assert that she had already supplied the information sought by way of specific disclosure (p.34), other than in relation to counselling records.[94]In relation to the matters raised by the claimant, we are not satisfied that the respondent conducted tribunal proceedings in an unnecessarily offensive manner, or that it ‘rubbed salt in the wound’ by plainly showing that it did not take the claimant’s complaint of discrimination seriously. We do not consider, therefore, that it would be appropriate to make an award of aggravated damages. Unfair dismissal[95]The claimant had not completed at least a year of service, so no basic award is payable. She claimed only loss of earnings for a compensatory award. Since we have awarded loss of earnings as part of compensation for discrimination, we make no award of compensation for unfair dismissal. Breach of contract[96]It was agreed that the claimant would be entitled to damages for failure to give her two weeks’ notice of termination. However, there is an overlap with compensation for loss of earnings awarded for discrimination. Since we have awarded the claimant compensation for a period including what should have been her notice period, as part of the discrimination compensation, we make no award of damages for breach of contract. Grossing up[97]The total award of compensation for discrimination is more than £30,000 and will, therefore, be subject to tax on the amount in excess of £30,000. We must, therefore, gross up the award to take account of likely taxation, with the aim that the claimant, after tax is paid, will be left with the amount we have calculated as being appropriate compensation. The grossing up calculation is set out in the schedule.[98]We understand from information on the gov.uk website that new style ESA and PIP benefits are not affected by changes in the claimant’s income or savings so we do the calculation on the understanding that the claimant will continue to receive these benefits once she has received payment of the compensation award from the respondent. We also understand from the gov.uk website that new style ESA is taxable income but PIP benefits are not taxable income. We assume, for the purposes of our calculation, that the claimant will not have any taxable income in the tax year 2021/2022 other than new style ESA and the taxable element of the Tribunal’s award. SCHEDULE Compensation Calculation Loss of earnings 9 October 2018 to 3 November 2019 inclusive (56 weeks) 56 x £560.44 (basic pay plus bonus) = £31,384.64 Less: Benefits £3831.65 Modelling income £717.00£4548.65£26,835.994 November 2019 to 3 May 2020 inclusive (26 weeks) 26 x £178.54 = £4,638.40 Total loss of earnings £31,384.64 + £4,638.40 = £31,474 (rounding down pence) Interest on loss of earnings Interest at 8% p.a. on £31,474.39 from mid point between 8 October 2018 and 14 June 2021 (10 February 2020 – 490 days) 490/365 x 8/100 x £31,474.39 = £3380 (rounding down pence) Injury to feelings £20,000 Interest on injury to feelings Interest at 8% p.a. on £20,000 from 8 October 2018 until 14 June 2021 (981 days) 981/365 x 8/100 x £20,000 = £4,300 (rounding down pence). Total award before grossing up Loss of earnings £31,474 Interest on loss of earnings £3,380 Injury to feelings £20,000 Interest on injury to feelings £4,300£59,154 Grossing up award 1st £30,000 is tax free, balance of £29,154 is subject to tax. Award will be taxable in tax year received – 6 April 2021 to 5 April 2022 Personal allowance in 21/22 tax year is £12,570 Claimant’s other taxable income in 21/22 is New Style ESA – 52 x £114.10 = £5933 (rounding down pence) Balance of personal allowance, after ESA, is £12,570 less £5933 = £6637 Estimate that claimant will be liable to tax on £29,154 less £6637 = £22,517. Applicable tax rate is 20%. Gross up £22,517 at applicable rate: 100/80 x £22,517 = £28,146 Grossed up total award is: Tax free element £30,000 Balance of personal allowance £6637 Grossed up taxable element £28,146 Total award (excluding interest) £64,783