Mrs L MacInnes v Telecare Services Association: 2401885/2014
EMPLOYMENT TRIBUNALS
Case No 2401885/2014
Between
Mrs L MacInnesClaimantTelecare Services AssociationRespondent
Before
Employment Judge RossDate 17 May 2017
JUDGMENT
[1]We find that the claimant is entitled to an award for injury to feelings in the sum of £5,000.(Inclusive of interest)[2]We find that the claimant is entitled to an award for psychiatric personal injury: £5,000. (Inclusive of interest)[3]We find that the claimant is entitled to an award for physical personal injury: £3,000. (Inclusive of interest)[4]We find there is no entitlement to an award for aggravated damages[5]We find that the claimant is entitled to a sum for loss of earnings: £983.30. Interest is payable on this sum of £ 91.77[6]We find that the claimant is entitled to a sum for pension contributions for the period April 2011 to 28 February 2014 in the sum of £9,841.99 .Interest is payable on this sum of £918.58.[7]We find there is no entitlement to an award for loss of pension growth and no entitlement to an award for employee contributions.[8]The claimant is entitled to a sum for medical expenses of £116.60. Interest is payable on this sum £10.88.[9]The claimant is entitled to recover the issue fee of £250 and the hearing fee of £950 from the respondent[10]We find there is no entitlement to an uplift based on an alleged breach of the ACAS Code of Practice.
REASONS
We heard from the claimant. We had submissions from Mr McInnes, the claimant’s husband and from Ms Clarke, legal consultant for the respondent. We turn to consider each type of award sought by the claimant. Injury to Feelings[1]The Tribunal reminded ourselves of the guidelines in Prison Service & others v Johnson [1997] ICR 275 EAT: Awards for injury to feelings are designed to compensate the injured party fully but not to punish the guilty party. An award should not be inflated by feelings of indignation at the guilty party’s conduct. Awards should not so low as to diminish respect for the policy of the discrimination legislation. On the other hand awards should not be so excessive that they might be regarded as untouched riches. Awards should be broadly similar to the range of awards in personal injury cases. Tribunals should bear in mind the value in everyday life of the sum they are contemplating. Tribunals should bear in mind the need for public respect for the level of awards made.[2]The Tribunal had regard to the guidelines as set out in Vento v Chief Constable of West Yorkshire Police No. 2 [2003] ICR 318 CA. The Tribunal had regard to the case of Da’Bell v National Society for Prevention of Cruelty to Children [2010] IRLR 19 EAT where the bands were increased, and the Tribunal also applied the uplift in Simmonds v Castle [2012] EWCA Civ 12/88 and finds that the bands are now lower band £660 to £6,600; middle band £6,600 to £19,800; and top band £19,800 to £33,000.[3]The Tribunal remind ourselves that the only allegation which succeeded before the Tribunal was the allegation that the respondent did not backdate employer’s pension contributions to the date the claimant informed the respondent she wanted to join the scheme (April 2011). We found that was an act of direct race discrimination.[4]We have borne in mind our findings in the judgment that the burden of proof shifted and we were not satisfied that the respondent had discharged the burden of proof in satisfying us that the failure to backdate her pension contributions to the date she informed the respondent she wanted to join the scheme in April 2011 was in no sense whatsoever related to race. We were given no clear explanation as to why the employer contributions were backdated only to March 2014 (see paragraph 195). At paragraph 196 we stated: “Therefore the shifting burden of proof causes us to find that in the absence of a non discriminatory explanation the respondent treated the claimant less favourably because of her race in failing to backdate her employer pension contributions to April 2011.”[5]We remind ourselves that having regard to the guidance in Prison Service & others v Johnson, but also to the guidance in relation to the Vento bands, that this was a one-off act of discrimination. We must consider what is fair, reasonable and just in the particular circumstances of what we found was an isolated one-off occurrence. We found the claimant's other allegations of discrimination all failed. We find that the award should be towards the top of the lower band.[6]Although we accept the claimant’s evidence that she was very distressed by the respondent’s conduct in general, she can only recover for injury to feelings in relation to the one allegation which succeeded which in the context of the claimant’s claim of race discrimination which consisted of a total of 15 allegations. These were 8 allegations of direct race discrimination-allegations8.1.1 to 8.1.7. These totalled 8 allegations because the allegation which succeeded was in 2 parts (Allegation8.1.2 ). See paragraphs 146-223 of the liability judgement for our detailed findings. There were also 7 allegations of harassment on grounds of race. These were allegations 8.2(a)-(g). See paragraphs 224-260 of the liability judgement for our detailed findings into these allegations.[7]Taking all this into account we consider the appropriate award for injury to feelings is £5,000. In reaching this figure we have also taken into account the award we have made for psychiatric and physical injury.(See below)[8]We turn to consider an award for personal injury. The claimant has claimed an award for both physical and psychiatric injury. Sherriff v Klyne Tugs (Lowestoft) Ltd 1999 ICR 1170 CA is authority for the proposition that a claimant may claim for personal injury (physical or psychological) as a separate head of loss.[9]Any award is made on tortious principles so it is for the claimant to show that the physical and or psychiatric injury was caused by the one allegation of discrimination where her claim succeeded.[10]Thaine v London School of Economics 2010 ICR 1422 reminds us that were there are other causes for the claimant’s ill health it is appropriate to apportion the award by such percentage as reflects the apportionment of the responsibility of the respondent. Psychiatric/Psychological Personal Injury[11]We had the benefit of a consultant Psychiatrist Report from Dr Nabavi, an expert jointly instructed by the parties. See p266-304. Dr Nabavi concluded that the claimant is suffering from a depressive disorder which had “been precipitated by a direct result of her employment difficulties since 2013” p299. Specifically Dr Nabavi apportioned “ 80% of the claimant’s mental health problems due to her traumatic experiences during her past 3 years at Telecare Services Association” and “ 20% due to her other life events”[12]When asked to identify how far the failure of the respondent to backdate the claimant’s pension contributions to the date the claimant requested to join the scheme (April 20111) caused or aggravated the claimant’s condition (p306) Dr Nabavi produced an amended report stating that her mental health problems were caused or aggravated 60% by the failure to backdate pension contributions to the date the claimant wanted to join the scheme. P 342.[13]Unsurprisingly, given the successful allegation in relation to pension was only a very small part of the respondent’s behaviour complained of by the claimant (see our liability judgment for detailed facts and findings in relation to the 15 allegations of race discrimination) the respondent wanted to ask Dr Nabavi to clarify his reasoning. P354. The claimant’s representative refused this question to be put. P354. Accordingly we do not know how Dr Nabavi reached this figure, which on the face of it seems surprising and at odds with the evidence. Most of the claimant’s concerns during her last 3 years at Telecare were unrelated to pension. The issue of failure to back date the pension to 2011 (rather than backdating to 2014 which was permitted) was a small part of an issue which figured very little in the evidence before the Tribunal. If it was an issue which caused the claimant a great deal of distress we would have expected to hear more about it. In fact the contrary was true. The claimant admitted in evidence that she had not chased the issue of joining up the pension scheme and we found in our judgement there had been inaction on her part. (Paragraph 56.)[14]We turned to consider the Judicial College Guidelines (formerly known as the JSB guidelines). We considered the bracket for psychiatric damage. We relied on Dr Nabavi’s report that the claimant had suffered from a major depression (page 338). We note Dr Nabavi found the depression was moderate to severe but predominantly moderate (see page 337).[15]We reminded ourselves that the claimant was absent from work between April 2014 and April 2016. We find that she had returned to work on a phased return in April 2016 and that her employment had ended by reason of redundancy in August 2016. We noted that Dr Nabavi said he was tentative in giving a prognosis. He stated, “I would feel complete improvement not to be achievable in the long-term”, however he stated, “In the absence of any major psychosocial events, I would view such improvements to be measured in the order of two years”. He indicated that the claimant had a close relationship with her family who were supportive, and that “these factors would positively contribute to her mental health and her overall progress”. He also noted that “the ongoing litigation by itself is a stressor factor”. He found that on the balance of probabilities the claimant “will continue remaining vulnerable and at a higher risk of experiencing a deterioration in her mental health in the future”. At page 348 he stated the claimant “is likely to experience further improvement in the severity of her depressive and anxiety symptoms by changing her medication”. He also stated, “In my opinion Ms MacInnes is likely to benefit from adequate psychological interventions such as Cognitive Behavioural Therapy””. He set out other treatment options and stated, “On the balance of probabilities it more likely than not that she will respond to the above approach”.[16]We consider that given that the claimant has suffered from a major depression but that Dr Nabavi tentatively outlines a positive prognosis, although suggests the claimant will not fully recover, that the proper band is £19,360-£50,000. This is the moderately severe bracket and includes a Simmonds v Castle uplift of 10%. We note the guideline states that the majority of awards are in the £24,200- £31,350 bracket.[17]We note that the claimant was able to return to work on a phased return. Unfortunately Dr Nabavi does not deal in detail with the claimant's ability to do this. We note his positive recommendations in relation to treatment and that he notes the close family relationships and support that the claimant has. We consider the appropriate award for a personal injury of this type of a major depression with lifelong consequences, although in an individual who has been able to return to work and was subsequently made redundant, to be £30,000. However, we remind ourselves that any award must be made on tortious principles. Dr Nabavi identified 80% of the claimant's illness to be attributable to work related stressors. When asked how the pension allegation which succeeded attributed he stated 60% of that 80%. The respondent was refused permission by the claimant’s representative to put a question in relation to that apportionment to Dr Nabavi.[18]The Tribunal is therefore in a situation where it is very difficult for us to be clear as to how far and on what basis the claimant's psychological illness was directly attributable to the one allegation which succeeded. The Tribunal reminds itself that the evidence at the liability hearing was primarily in relation to how the claimant was treated by Trevor Single and later by Alison Scurfield. Neither of them made the decision in relation to the backdating of pension contributions which was made by the Board, who were not employees of the respondent. We note the claimant was absent from work from 30 April 2014 and did not find out in until November 2014 that her pension would not be backdated to the date she would have wished but instead to March 2014. By November 2014 she had already been absent from work for a period of many months with a stress related illness. This is consistent with a finding that the claimant’s absence and illness was caused by factors other than the failure to backdate the pension to a specific point.[19]We note the claimant had returned to work in a phased return in April 2016. She was made redundant for unrelated reasons and there is no claim in relation to that dismissal or appeal against it.[20]The Tribunal must consider how to apportion an award for personal injury on tortuous principles.[21]The respondent suggested that given that there were 15 allegations of discrimination then the appropriate way to deal with the causative connection was to divide the amount of the award by 1/15th on the basis that each discriminatory allegation had an equal but separate causative influence. On this basis given we think the appropriate award is 30,000 for the nature of the illness the award would be either £2,000 if we awarded 1/15 of £30,000 or £1,600 if we also relied on the evidence of Dr Nabavi that only 80% of the illness was work related and awarding1/15 of that sum (£24000).[22]The Tribunal considered that approach but found it to be very mechanical.[23]The Tribunal looked at the matter in the round. The Tribunal reminded itself that the claimant can only recover from the loss flowing from the breach. The Tribunal noted that there was no explanation for Dr Nabavi’s finding of 60% of the claimant’s condition was due to the pension allegation and that Dr Nabavi started from a premise where only 80% of the claimant's condition was work related in any event. In the absence of an explanation from Dr Nabavi the Tribunal did not rely on his finding that 60% of the claimants work related symptoms were caused by the discriminatory pension allegation.[24]The Tribunal reminded ourselves that in fixing an award for the claimant's psychological/psychiatric condition and her claim for injury to feelings we had to look at the overall picture. We reminded ourselves that the claimant also suffered from a physical manifestation of her stress related symptoms, including lockjaw, IBS, blurred vision and high blood pressure (see the claimant's statement at paragraphs 76-95). We rely on the evidence of Dr Lewis, who explained that lockjaw was a stress induced condition. We rely on the claimant's evidence that her other conditions were stress induced. We find it is not appropriate to make a separate award for physical manifestations for a stress related condition when we are taking those conditions into account when considering the claimant's claim for injury to feelings and psychological illness. These symptoms are taken into account when we reached the figure of £30,000 for the claimant’s psychological personal injury, before apportionment.[25]We have had regard to the evidence of Dr Nabavi, which we treat with caution in relation to the apportionment of 60%. We have taken into account the very small part that the failure to backdate adequately the claimant’s pension contributions played in the evidence in this case and we have taken into account the fact that the claimant had already been absent from work for a lengthy period of six months by the time she found out that her claim for pension loss was being backdated only to March 2014 and not any earlier. We have taken into account the fact that the claimant herself admitted that she had failed to chase up the issue in relation to pension and it did not form part of her grievance until a late stage which suggests that this was not a major causative factor of her illness. In the circumstances balancing all these factors the Tribunal awards the claimant £5,000 for psychiatric injury. Physical Personal Injury[26]The Tribunal relies on the report of Dr Lewis at pages 383-396. The Tribunal has taken into account that the claimant is suffering from an underlying congenital disease known as Anderson Febry Disease which has resulted in an increasing thickness of her heart muscle (see pages 379-380). The Tribunal notes the claimant also has vasospastic angina which has been aggravated by stress. The Tribunal notes that the claimant had a history of GP hospital attendances in relation to chest pain which predates the grievance hearing in May 2014 and the outcome in relation to the allegation which succeeded before the Tribunal. Accordingly the Tribunal is satisfied that the allegations which succeeded cannot be entirely causative of the claimant's ongoing condition. The Tribunal notes that Dr Lewis finds that the claimant did return to work on a phased return and anticipates that the symptoms of chest pain from which she is suffering are likely to improve in future. He considers Cognitive Behavioural Therapy will need to be continued and will improve although it will not cure the condition. He also envisages when the claimant finds new employment this will distract her from her distress over the recollections of the past years and then there may be “a significant diminution in her symptomology related to her employment with Telecare”.[27]He indicates she is likely to continue to have stress related vasospastic angina and indeed some exercise and cold related angina lifelong. He envisages a 50% improvement in her symptomology with regarding her stress related angina.[28]It is very difficult for the Tribunal to find appropriate guidance as the appropriate band of compensation because there is no separate section in the guidelines dealing with heart conditions such as this. The Tribunal finds that the most appropriate comparative approach is in relation to the guidelines for chronic pain disorders (see pages 465 and 566). The Tribunal finds that the appropriate bracket is the moderate bracket which is £17,600-£32,180. The Tribunal finds that the claimant is at the top end of this bracket at £30,000. The Tribunal is mindful that a chronic pain condition is likely to be more severe than the claimant's condition because by its very nature chronic pain provides persistent symptoms whereas the nature of the vasospastic angina, by the claimant's own description, involves intermittent symptoms of chest pain.[29]The Tribunal turns to apportionment. The Tribunal relies on the apportionment conducted by Dr Lewis. He says 80% of the claimant's symptoms are due to work related stress and of those 12.5% due to the pension allegation, and therefore the correct figure is 10%. We therefore award £3,000 for the physical injury. We award interest at the usual rate. Interest on awards for injury to feelings and personal injury.[30]The Tribunal reminds itself of the provisions in relation to interest Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 SI 1996/2803. We consider that it is not appropriate to make a separate award for interest in relation to the claimant’s claims for personal injury, psychological injury and injury to feelings because we have taken the level of interest into account (8% from the date of the discriminatory act) and factored this into the total award for physical and psychological personal injury and the award for injury to feelings. Aggravated damages[31]We turn to consider the claimant's claim for aggravated damages. We remind ourselves of the guidance in Prison Service & others v Johnson [1997] ICR 275 EAT and Alexander v The Home Office [1988] ICR 685. Aggravated damages can be awarded in a discrimination case where the defendants have behaved in a “highhanded, malicious, insulting or oppressive manner in committing the act of discrimination”. We remind ourselves of the guidance in Commissioner of the Police of the Metropolis v Shaw EAT 0125/11 which identified three broad categories of case: Where the manner in which the wrong was committed was particularly upsetting. This is what the Court of Appeal in Alexander meant when referring to acts done in a high-handed, malicious, insulting or oppressive manner. Where there was a discriminatory motive i.e. the conduct was evidently based on prejudice or animosity or was spiteful, vindictive or intended to wound. Subsequent conduct by the respondent[32]We are not satisfied there are facts which justify a finding of aggravated damages in relation to the successful allegation of race discrimination that the respondent did not backdate the employer’s pension contributions to the date the claimant informed the respondent she wanted to join the scheme in April 2011 . We remind ourselves that the claimant was permitted to backdate her contributions but the discriminatory act was not to permit the claimant to back date contributions to the date she informed the respondent she wanted to join the scheme.(She was permitted to backdate to the date the matter was raised in a grievance in March 2014.) We remind ourselves that we found the burden of proof shifted because of the reasons set out in our judgment at paragraphs 191-194. We remind ourselves that we were not satisfied that there was a clear explanation as to why the claimant was not permitted to backdate her pension to the earlier date. We rely on our findings that the decision was made by the Board, not by one individual. (see paragraph 187). .[33]We remind ourselves that this was an allegation which turned on the burden of proof. We did not find any discriminatory motive. We found that the burden of proof had shifted and the respondent did not advance a clear non discriminatory reason as to why they did nor permit the claimant to backdate to an earlier point in time.[34]We are not satisfied that our findings at paragraph 191 suggest the action of Mr Single was intentional. The document of 20 July 2011 came to light late in the day. The circumstances in which that document came to light were taken into account and caused us to find that it amounted to “something more” which enabled the burden of proof to shift. We are not satisfied that it amounts to high-handed, malicious, insulting or oppressive behaviour to justify an award for aggravated damages.[35]Finally we made no findings of any actions that there was any subsequent action of the respondent which was aggravating. We made no other findings of discriminatory treatment and we make no findings of any aggravating subsequent conduct by the respondent’s representative. Our only concern about the conduct of the respondent was in relation to the disclosure of the document referred to at paragraph 191-3 of our judgment . That concern was taken into account by causing us to find it amounted to “something more” meaning the burden of proof shifted. We remind ourselves that the EAT stated in Zaiwalla and Co v Walia 2002 IRLR 697 that aggravated damages in respect of alleged misconduct of proceedings will be exceptional. We find no aggravating conduct by the respondent and no exceptional circumstances. Accordingly for these reasons we decline to make an award for aggravated damages. Pension Contributions[36]The Tribunal turns to deal with pension loss. The claimant claimed for employee contributions, employer contributions and loss of pension growth.[37]The Tribunal reminds ourselves of the nature of the allegation which has succeeded. The respondent allowed the claimant to join the pension scheme. The respondent backdated the claimant's contributions to the pension scheme to March 2014. The Tribunal found the failure to backdate pension contributions far enough i.e. to April 2011, was an act of discrimination. The Tribunal found that there were generally administrative problems in relation to the pension scheme and other employees were affected by that administrative difficulty.[38]Turning therefore first of all to the issue of pension growth, the claimant is not entitled to be compensated according to tortious principles. That would have put her in the position as if she had not been permitted to join the pension scheme at all rather than putting her in the position to compensate her for the failure to backdate her pension contributions at a particular point in time.[39]Secondly, the information provided by the claimant does not identify any pension growth in relation to the failure to provide backdated pension in relation to a specific time point only.[40]The Tribunal considers the appropriate way to compensate the claimant for the failure of the respondent to backdate her pension contributions in 2015 back to 2011 rather than to March 2014 is by awarding those contributions and interest.[41]Accordingly the Tribunal awards the claimant £9,841.99.[42]We remind ourselves of the provisions in relation to interest. Employment Tribunals (Interest on Awards in Discrimination Cases) (Amendment) Regulations 2013 SI 1669/2013 amends Reg 3(2) so that, for claims presented to the tribunal on or after 29 July 2013, the rate of interest payable on a claimant's losses up to judgment increased to 8 per cent.. The Tribunal may award interest from the mid point of the discriminatory act to the remedy hearing date. The discriminatory act was November 2014 and the hearing date for remedy March 2017.This is 28 months so the mid point is 14 months from November 2014 i.e. February 2016.[43]We award 14 months interest at 8% on £9,841.99 = £918.58.[44]The claimant also seeks her own employee contributions. The Tribunal finds that the claimant is not entitled to her own contributions on tortious principles. The Tribunal found that the respondent failed to back the employer contributions. The Tribunal did not make any finding that there was any failure of the employer in relation to the employee contributions. The Tribunal heard evidence that if the employer backdated contributions it was a matter for the employee to backdate their own contributions. Accordingly no award is made under this head. Loss of Earnings[45]The Tribunal turns to the claimant's claim for loss of earnings. The Tribunal reminds ourselves that the claimant was absent from work for two years and that absence from work had already been lengthy by the time the claimant discovered there had been a failure to backdate her pension contributions to earlier than March 2014. She discovered this in November 2014 and had commenced her absence from work in April 2014. The claimant's absence from work was for stress related illness. The Tribunal, when considering the claimant's loss on tortious principles, has the same problems with the medical evidence of Dr Nabavi as outlined above.[46]The Tribunal accepts the calculations of the respondent as being accurate in terms of the loss of earnings suffered by the claimant (see pages 14A and 14B). The total loss by the claimant was £9,833.00. From the medical evidence of both Dr Lewis and Dr Nabavi 80% of the absence was related to work. Of that 80% only a very small proportion was caused by the failure to backdate the pension contribution adequately. If the respondent’s principle of 15 equal causes each contributing 5.33% is adopted, the claimant would only recover £524.43. If the principle set out by Dr Lewis was adopted the sum of £983.30 would be recoverable.[47]The Tribunal considers that Dr Lewis’ approach is the type of approach normally adopted. However, Dr Lewis’ report is in relation to the angina and heart condition. The claimant's absence is variously noted as work related stress or later as anxiety and depression.[48]The Tribunal have looked at the matter in the round and taken all of the factors into account that made up the medical evidence together with our concerns about Dr Nabavi’s report with regard to the figure of 60% being apportioned to the pension allegation. We award the claimant £983.30 for loss of earnings which the Tribunal considers reflects a sum commensurate with an appropriate level of apportionment.[49]The Tribunal considered interest. Employment Tribunals (Interest on Awards in Discrimination Cases) (Amendment) Regulations 2013 SI 1669/2013 amends Reg 3(2) so that, for claims presented to the tribunal on or after 29 July 2013, the rate of interest payable on a claimant's losses up to judgment increased to 8 per cent. The Tribunal may award interest from the mid point of the discriminatory act to the remedy hearing date. The discriminatory act was November 2014 and the hearing date for remedy March 2017.This is 28 months so the mid point is 14 months from November 2014 i.e. February 2016. Interest at 8% for 14 months on £ 91.77.[50]The Tribunal turns to the claimant's claim for future loss of earnings. The Tribunal reminds itself of tortious principles. The claimant was on a phased return to work in August 2016 when she was made redundant. The Tribunal notes there was no appeal against redundancy and no further claim was brought in relation to it amounting to a discriminatory act.[51]The Tribunal finds that the redundancy broke the chain of causation and declines to make any award for future loss of earnings in relation to the allegation which succeeded, namely the failure of the respondent to backdate the pension contribution to April 2011 instead of March 2014. Medical Expenses[52]There is a lack of detail about the lack of medical expenses. The claimant claims £733 in relation to medical insurance and a future loss of £432 for future psychological treatment. The total figure is £1,165. The Tribunal relies on its findings above in accepting the medical evidence of Dr Lewis, treating the apportionment of the claimant's illness by Dr Nabavi with caution in relation to the figure of 60% and also not being satisfied that the contribution of each allegation of discriminatory conduct as an equal factor i.e. 5.33%, is an appropriate way to proceed. The Tribunal considers that Dr Lewis’ approach is more satisfactory i.e. 10% attributable once the fact that some of the illness is unrelated to work is taken into account. The Tribunal therefore awards £116.60 (10% of £1,165).[53]Employment Tribunals (Interest on Awards in Discrimination Cases) (Amendment) Regulations 2013 SI 1669/2013 amends Reg 3(2) so that, for claims presented to the tribunal on or after 29 July 2013, the rate of interest payable on a claimant's losses up to judgment increased to 8 per cent. Strictly speaking the claimant is not entitled to interest on future loss only on past loss. However given the negligible amount of interest involved on this item and the difficulty of further identifying past and future loss the Tribunal awarded interest on the whole figure for loss of earnings.[54]The Tribunal may award interest from the mid point of the discriminatory act to the remedy hearing date. The discriminatory act was November 2014 and the hearing date for remedy March 2017.This is 28 months so the mid point is 14 months from November 2014 i.e. February 2016. Interest at 8% for 14 months on £ 116.60 is £10.88.[55]We turn to the other awards sought by the claimant. We find there are no grounds for an award for failure to follow the ACAS Code of Practice. The relevant allegation which succeeded is in relation to failure to backdate pension to April 2011 when the employer allowed backdating to March 2014.The claimant made no complaint about the failure to backdate her pension contributions or her pension generally until March 2014. When she raised that complaint it was considered at the hearing in May 2014. She had a meeting where the outcome was determined in relation to the contributions in November 2014. We made no findings in our liability judgement that there was failure to follow the ACAS Code of Practice.[56]The claimant is entitled to recover her issue fee and hearing fee. The claimant makes an application for costs which will be dealt with at a separate hearing. Employment Judge Ross Date 17 May 2017[1]The Tribunal found that the claimant succeeded in one part of one allegation of her claims against the respondent (see our Reserved Judgment sent to the parties in June 2016). We found that an allegation that the respondent has failed to provide the claimant with access to the contractual pension scheme succeeded in part. We were satisfied that the failure to admit the claimant to the pension scheme itself was not discriminatory (see paragraphs 180 and 182). However, we found that although the respondent allowed the claimant to access the pension scheme and permitted her to backdate employer’s contributions she was only permitted to backdate contributions to March 2014 rather than to April 2011.We found that failure to permit her to backdate contributions from March 2014 to the start of employment in April 2011 was discriminatory.[2]In a remedy judgment sent to the parties on 17 May 2017 we awarded compensation.[3]The claimant, by email of 21 May 2017, requested a reconsideration of the remedy judgment. At the outset of the hearing the claimant submitted a 44 page submissions document. We also received a three page submissions document from the respondent.
The Law
[4]The Tribunal reminded itself of rule 70 schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The test for reconsideration under the 2013 rules is whether such a reconsideration is in the interests of justice.[5]We remind ourselves of the case law in Outasight VB Limited v Brown [2014] UKEAT 0253.14. This case confirms that the previous cases dealing with review under the earlier Tribunal rules remain applicable. The 2013 rules do not change the position. Accordingly the “interests of justice” must be seen from both sides (Redding v EMI Leisure Ltd EAT 262/81). It is not an opportunity for a “second bite of the cherry”.[6]Where a party argues that new evidence has become available, it must be shown not to have been reasonably known or foreseen at the time of the original hearing.[7]We turn to the grounds relied upon by the claimant. New Evidence[8]The claimant relied on a letter which states it was typed on 27 March 2017 to Dr S M Winter (which appears to be incomplete); a letter to Dr Winter typed on 22 September 2017 and a letter from Department for Work and Pensions concerning industrial injuries disablement benefit dated 5 June 2017.[9]The Tribunal notes that the remedy hearing was heard on 29 March 2017 (the liability hearing was in April and May 2016 over ten days).[10]The Tribunal is not satisfied that the letter typed on 27 March 2017 could not have been produced at the original remedy hearing.[11]The Tribunal is not satisfied that either the letter dated 27 September 2017 or the industrial injuries letter of 5 June 2017 is relevant for reasons explained below.[12]The last document produced by the claimant’s representative was a further calculation of pension loss and a pension calculation document from Friends Provident which was sent into the Tribunal after the remedy hearing had concluded on the last occasion. The Tribunal is not satisfied that this information could not have been produced in time for the remedy hearing. There is a period of almost a year between the liability hearing and remedy hearing. In addition the Tribunal is not satisfied that the information is relevant for the reasons given below in this judgment. Apportionment of Compensation[13]The claimant is critical of the way the Tribunal has awarded compensation to the claimant for psychological injury, physical injury, loss of earnings and for medical expenses.[14]When awarding compensation the Tribunal, under section 124 of the Equality Act 2010 may –(a) make a declaration as to the rights of the complainant and the respondent;(b) order the respondent to pay compensation to the complainant.[15]The principles used are those relevant to calculate the amount of compensation corresponding to damages that could be ordered by a County Court in England and Wales for a claim in tort.[16]The Tribunal relies on its findings in the remedy judgment that it exercised its discretion appropriately when awarding compensation to the claimant and apportioning it. The Tribunal had regard to the particular circumstances of this case, the medical evidence and the fact that the claimant only succeeded in one part of one allegation in her claim of discrimination against the respondent. The claimant seeks to argue that the claimant should recover in full for her present illness and that she has continued to deteriorate and so should be awarded further compensation.[17]The Tribunal relies on its findings at the remedy hearing that only a small part of the claimant's illness can be attributed to the part of one allegation of discrimination which was upheld, namely the failure to backdate pensions contributions sufficiently.[18]Furthermore, the new evidence supplied by the claimant does not state that the ongoing problems suffered by the claimant are attributable to the failure of the respondent to backdate the claimant's pension contributions for a period before March 2014. The claimant relies on Dickins v O2 PLC [2008] EWCA Civ 1144 to suggest that it is inappropriate to apportion damages. The Tribunal is not satisfied that this case is authority for that proposition. The Tribunal relies on Thane v London School of Economics [2010] ICR 422 EAT as quoted in the remedy judgment, which is authority to reflect the fact that where there were a number of concurrent causes of the claimant's psychiatric ill health apportionment of the award was appropriate. The Tribunal also relies on BAE Systems Operations Limited v Konczak [2017] EWCA Civ 1188 at the Court of Appeal which held that an Employment Tribunal had erred by failing to consider whether the claimant’s psychiatric illness had other divisible causes, namely conduct, that was not found to constitute unlawful discrimination, and if so whether the compensation fell to be apportioned on this basis.[19]The claimant also relies on HM Prison Service v Salmon 2001 IRLR to argue that the claimant should recover damages on a 100% basis .[20]The Tribunal did not find that the action of the respondent in failing to backdate the pension contribution made a material contribution to the claimant's suffering. In this case, having considered the medical evidence we found that only a small part of the claimant's illness was directly attributable to the one allegation of discrimination we found. Level of Award[21]The claimant raised concerns about the level of the injury to feelings award. We find that this is an attempt to re-litigate the remedy hearing. The Tribunal relies on its findings in the remedy judgment. Date of Discriminatory Act[22]The claimant raised a concern that she did not understand why the date of the discriminatory act was November 2014. The date of the discriminatory act is clearly identified in the liability judgment. It was the date when the respondent permitted the claimant to join the pension scheme and backdate her contributions to March 2014 rather than the start of her employment.[23]There is a fundamental misunderstanding on the part of the claimant when she suggests that the tort arose from 1 April 2011, which is the date the claimant commenced the relevant role. The Tribunal did not find that the respondent discriminated against her by failing to allow her to join the pension scheme on 1 April 2011. Factual findings[24]In other places throughout the submissions document the claimant attempts to re-litigate either the remedy hearing or the liability hearing. The claimant alleges that there were incorrect factual findings. It is not appropriate for the Tribunal to revisit those in the absence of any new evidence which was not available to the original hearing. There has already been a reconsideration of the liability judgment. Incorrect JSB Guidelines[25]The Tribunal does not understand the suggestion that the claimant should apply the judicial studies board level of compensation for Northern Ireland. This claim is litigated in the legal system in England and Wales and accordingly we have relied on the appropriate precedents and guidance for England and Wales.[26]The Tribunal found in its liability judgment that there was a delay between the claimant commencing employment and joining the pension scheme. We found that was not a discriminatory act (see paragraphs 177-182). We concluded: “We find the allegation of failing to access to the contractual scheme in the sense of the delay in permitting the claimant to access the scheme fails.” Accordingly the claimant cannot recover compensation for that. Incorrect award for pension[27]Where the claimant succeeded was that she was permitted to join the scheme in November 2014 but her contributions were backdated only to March 2014 rather than to the start of her employment (April 2011).[28]The Tribunal therefore allowed the claimant her loss by calculating the loss of her contributions for the period April 2011 to March 2014 and allowing interest upon them. That was the sum the Tribunal ordered as compensation.[29]The claimant raised an issue about the amount awarded for failure to backdate pension contributions. The claimant raised an issue about growth to the fund.[30]There is a potential loss as to the pension fund at retirement if there was evidence to show a loss in growth of the fund due to the difference in time the backdated contributions were paid into the fund for the period April 2011-March 2014. There is no dispute the claimant was permitted to join the pension scheme and was permitted to backdate her contributions to March 2014.We found no discrimination in relation to that. Neither was there an allegation of discrimination in relation to late payment of the backdated contributions March to Nov 2014. Accordingly any loss in the growth of the fund could only be in comparison of the timing of payment into the fund of the Apr 11-March 14 contributions and the timing of payment into the fund of the March 14-November contributions.[31]If the timing of the payment of the earlier contributions(April 11-March 2014) ordered following the the remedy judgement(instead of at the time of the March-Nov 14 backdated contributions) made a difference to the growth of the fund at retirement age, in theory that is recoverable.[32]However, these figures have never been provided. Instead the claimant has produced calculations from Friends Life which show the difference in value if the claimant had joined the pension scheme on 1 April 2011. This is not appropriate.[33]There is no finding anywhere in the liability judgment that the respondent discriminated against the claimant by failing to allow her to join the pension scheme on 1 April 2011. Indeed we expressly found that the allegation of failing to allow access to the contractual scheme failed.[34]The Tribunal reminds itself that the basis on which it has awarded loss of pension is very much in accordance with the pensions principles guidance for Employment Tribunals. This was a defined contributions scheme. The Tribunal ordered the contributions for Apr 20111 to March 2014 to be paid and awarded interest on those. The Tribunal finds no basis to reconsider that award. Aggravated damages[35]The claimant disagrees with the lack of an award for aggravated damages. The claimant’s submission is an attempt to re-litigate the remedy judgment. There is no ground for reconsideration. The claimant makes other allegations about false statements made by witnesses. We find that this is an attempt to re-litigate the liability and/or remedy hearing.[36]The claimant also makes allegations about Ms Clarke, the respondent’s representative. We have already dealt with Ms Clarke’s professional and courteous behaviour throughout this case in the decision in relation to costs and the allegations made by the claimant have no place in a reconsideration of a remedy judgment.[37]Likewise, the claimant's concerns about the respondent’s alleged failure to comply with court orders and to meet timelines are not relevant to a reconsideration on remedy. Lack of apology[38]The claimant complains about a lack of apology. There is no obligation on the respondent to apologise and we did not order them to do so. We found that the claimant succeeded only in one part of one allegation, where we found the burden of proof had shifted and the respondent could not discharge it because it did not have an explanation for the treatment as to why the claimant was not permitted to backdate her contributions to the start of her employment instead of only to March 2014. Again the claimant is trying to re-litigate the remedy hearing. Loss of earning calculation[39]The claimant says that the figures used by the Employment Tribunal in the remedy judgment for loss of earnings are not understood. The Tribunal accepted the figures of the respondent for the following reasons.[40]Both parties agreed that the claimant was absent from work from April 2014 to 30 October 2014 and received pay. Accordingly she had no loss of earnings (see page 14A remedy bundle). The claimant was absent from work from 1 November 2014 to 30 April 2015, a period of 26 weeks. Using a weekly figure of £653 based on the agreed net earnings figure of £33,948 per year, £2,829 per month and £653 per week, the loss to the claimant was 26 weeks x £653 = £16,978 but the claimant had received half pay of £8,489 making a loss of £8,489.[41]For the final period 1 May 2015 until 13 April 2016 (a period of 48 weeks) the claimant suffered a loss of £653 x 48. We find that the claimant returned to work on 13 April 2016 because she told us at the outset of the remedy hearing that she returned to work a week before the last hearing, and that took place in March and April 2017. Therefore the total loss to the claimant was £8,489 plus £31,344 which totals £39,833. It is not disputed that the claimant received a payment from Unum Insurance in settlement of any claims that she had against them for full pay of salary during period of incapacity. The claimant must give credit for this sum. So the loss to the claimant was £9,833. We then went on to apportion that figure in accordance with the principles set out in our remedy judgment.[42]The only potential error the Tribunal can see in this calculation was that there was no dispute the claimant, when in employment, did earn a bonus and while she was absent from work on sick leave she did not earn a bonus. However, at the remedy hearing we heard no detailed evidence on bonus and neither did we hear detailed evidence on bonus at the liability hearing (see paragraph 212):[43]“We heard no detailed evidence as to how the bonus was calculated or how corporate KPIs impacted on the bonus”. In these circumstances the Tribunal is not satisfied there are any grounds to revisit the calculation for loss of earnings.[44]Finally, the claimant appears to be under the misapprehension that calculations for loss in a discrimination case should be based on gross earnings. This is incorrect. Loss of earnings in a discrimination case are based on tortious principles and therefore the Tribunal uses the net sum received by the claimant in the loss of earnings calculation as that is the amount that she would have received. Redundancy and further loss.[45]The claimant disputes that the redundancy broke the chain of causation. Tortious principles state that if there has been a break in the chain of causation then that means the loss is no longer flowing from the discriminatory act. The claimant was made redundant. There is no suggestion from the evidence before the Tribunal that the redundancy was in any way related to the failure to backdate the pension contributions to the start of the claimant's employment. Accordingly, any losses the claimant has as a result of her redundancy are not recoverable.[46]In conclusion, the claimant has not presented any grounds which cause us to reconsider our remedy judgment and the application fails.
The Law
[1]By letter to the Tribunal dated 16 April 2017 the claimant's representative (her husband) made an application for costs.[2]At the Costs Hearing he clarified that given he had not been paid by his wife to represent her, he was bringing an application for a Preparation Time Order. He also clarified that he was bringing the application on the basis that the respondent had acted vexatiously or unreasonably within the meaning of Rule 76(1)(a) of the Employment Tribunals Rules of Procedure 2013. He confirmed that he did not make an application for a Wasted Costs Order pursuant to Rule 80 against Ms K Clarke, the respondent’s representative during the conduct of the proceedings.[3]Mr MacInnes provided a detailed submission for us to read. We had a witness statement for Ms K Clarke who attended and gave evidence and answered questions from the claimant. We also had a submissions document from the respondent's representative.[4]The Tribunal reminded itself that Rule 76(1) imposes a two stage test. Firstly, the Tribunal must ask itself whether a party’s conduct falls within Rule 76(1)(a) namely in this case whether the party or party’s representative has acted vexatiously or otherwise unreasonably in either the bringing of the proceedings or the way the proceedings have been conducted .Secondly, if the answer to the first question is yes we must go on to ask whether it is appropriate to exercise our discretion in awarding preparation time order.[5]The Tribunal turned to consider the grounds relied upon by Mr McInnes. Firstly Mr McInnes relied on a "failure to investigate the claim". The Tribunal is not satisfied that there was any finding in our liability judgment that the respondent failed to investigate the claim. The Tribunal reminds itself that this was a case where there were fifteen allegations of discrimination against the respondent. The claimant succeeded in part in one of those allegations. See our liability judgment. The Tribunal is not satisfied that the matters referred to by Mr MacInnes in his submission are relevant to a suggestion that there was vexatious or unreasonable conduct of the respondent or its representative in responding to the claim or the way they conducted the proceedings. The Tribunal notes that a number of matters raised by the claimant at this stage, as elsewhere in his submission document appeared to be an attempt to re-litigate the Liability Hearing at this stage which is inappropriate.[6]We turned to the second ground, failure to disclose evidence. The Tribunal has made no finding that there was an intentional failure to disclose evidence by the respondent. The Tribunal relies on paragraphs 191 to 196 of our Liability Judgment in relation to the disclosure of document at p254 (liability bundle.). The Tribunal remembers that this was a case where the liability bundle was extensive, amounting to some 1,000 pages. The Tribunal did have concerns about document at page 254 and those are expressed in our Liability Judgment. As a result of our concerns we found the burden of proof shifted to the respondent.[7]However we are not satisfied that the concern in relation to document 254 amounts to an intentional failure to disclose evidence. We remind ourselves that the respondent was represented by a claims management organisation. We remind ourselves that the duty to disclose documents is to conduct a reasonable search of documents which are or may be relevant to the case. Where a respondent is represented it is for their representative to inform the respondent of that obligation. The very nature of the exercise means there is discretion inherent in it. The Tribunal reminds itself that, as in this case, documents are sometimes disclosed in Employment Tribunal proceedings having come to light during a subject access request. How a subject access request is dealt with is governed by different regulations under the Data Protection Act and is not a matter for this Tribunal. However the very fact that the two processes are subject to different rules means that documents which are not produced or found during a trawl for discovery under the Employment Tribunal rules are sometimes produced following a subject access request. The fact that this occurs is not evidence of a respondent "reluctant to meet obligations to disclose evidence" as suggested by the respondent. It simply shows there are 2 different processes.[8]The Tribunal did not express concerns about disclosure of any other documents in the liability judgement. The Tribunal finds that the other documents referred to by the claimant's representative in his submissions are an attempt to re-litigate the liability aspect of the claim. Refusal to engage in mediation[9]The very nature of mediation means that it is voluntarily and both parties must be willing to commit to it. It is not possible to force a party to mediate a settlement. It is a fundamental misunderstanding of the judicial mediation process to suggest that a refusal to engage in mediation is unreasonable conduct or vexatious conduct. Judicial Mediation is simply a form of dispute settlement which the Tribunal offers the parties. If both parties are interested the Tribunal will mediate between them, it is not unreasonable for a party to prefer not to mediate a dispute.[10]Given that the claimant succeeded in only one part of one of her allegations it is in any event very difficult for the claimant to argue that the respondent acted unreasonably or vexatiously in failing to negotiate a settlement. Unnecessary delay and harassment[11]There is no dispute that there was a delay in this case coming to hearing. It had an unusual history. The claimant presented her claim to the Employment Tribunal on 21 July 2014. The case was subject to a Case Management Hearing before Employment Judge Porter on 3 September 2014 where the claimant withdrew her equal pay and sex discrimination claim and clarified some of her other claims. The case was listed for hearing on 20 to 23 April 2015.[12]The hearing in April 2015 was before Employment Judge Holmes, Mrs Ensell and Mrs Denton. The Tribunal relies on the judgment and reasons sent to the parties by Employment Judge Holmes on 29 April 2015 where the claimant's claims were adjourned to 11 June 2015 for one day and thereafter to 26 October 2015, having gone part heard. The Tribunal relies on Judge Holmes note that at the lunch adjournment on day three the claimant became unwell. She had a history of coronary episodes and paramedic assistance was called. The Tribunal relies on Judge Holmes note that the Tribunal took the decision, having heard from Ms Clarke and Mr Budgeon (who then represented the claimant) to adjourn the case part heard so the claimant could conclude her evidence when she was well enough to do so and the Tribunal therefore listed the case on 11 June to allow the claimant time to recover and to be fit enough to resume giving evidence. Thereafter the time estimate for the remainder of the case was four to five days and it was fixed to resume on 26 October 2015 which was the earliest date the Tribunal could accommodate it.[13]The Tribunal find it is not unusual that once a case has been fully prepared for hearing to find that the number of witnesses and the length of their witness statements together with the extent of the documents produced mean that estimated length of hearing is longer than predicted at the preliminary case management stage.[14]The Tribunal finds that unfortunately Judge Holmes was taken ill in June 2015 and so the case could not proceed on that date.[15]The hearing in October 2015 was postponed at the request of the claimant's representative because of her ill heath. She wished to postpone until after she had met with her Cardiologist in November 2015. The respondent was reluctant to postpone the case. The case came before Employment Judge Holmes (see his note) sent to the parties on 21 October 2015.He considered the history and noted that one of the lay members had now left the region so it was not possible to relist the case before the original panel. With reluctance he took the decision to re-list the case before a new panel on the first available convenient dates, 18 April to 27 April 2016. The relisted hearing took place on those dates.[17]The claim succeeded in one part of one allegation and a Remedy Hearing took place on 29 March, 28 April and 7 May 2017 (in Chambers). The delay between the Liability and the Remedy Hearing was due to firstly to the fact that a reconsideration of the liability judgment took place on 1 November 2016 and it was agreed that remedy hearing should not proceed until that had been heard in case it resulted in a new liability hearing. At the conclusion of the unsuccessful reconsideration hearing the case was listed for a remedy hearing which took place on 29 March 2017.[18]Accordingly the Tribunal is not satisfied that the delay in this multi day case was caused by the respondent. The reasons for the delay are listed above. Furthermore, the Tribunal notes that the reason for the case going part heard on the first occasion and not proceeding in October 2015 was a combination of the ill health of the claimant and insufficient time for the case to conclude in the listed period.(At the time the claimant became ill, the respondent’s witnesses had not been reached.) The case did not proceed on the date in June 2015 due to the ill health of the Judge.[19]Mr MacInnes appears to suggest in his submission that the respondent made an application to delay the case which "resulted in Mrs McInnes having a heart attack, losing consciousness and being kept in hospital for eight days".[20]The Tribunal finds that Mr McInnes submissions are incorrect. The respondent did not apply to delay the case. What occurred was appropriate case management by the Tribunal once it became clear the original time estimate was not accurate (for understandable reasons) and once the claimant became ill. The Tribunal notes with concern Mr MacInnes's behaviour towards Ms K Clarke, as recorded by Judge Holmes at that first hearing. His conduct was highly inappropriate. By contrast the Tribunal notes Judge Holmes records "Ms Clarke's conduct before the Tribunal and in her cross examination has been perfectly reasonable, good mannered, professional and polite and has in no way provoked the reaction that Mr MacInnes has visited upon her".[21]The Tribunal returns to its liability and remedy judgment. The Tribunal finds there was no unnecessary delay by the respondent and no harassment by the respondent or their representative in relation to the conduct of these proceedings. Indeed, the allegation of inappropriate behaviour accepted and documented by Judge Holmes is the behaviour of Mr MacInnes towards Ms Clarke. Incorrect statements by the respondent and their representative[22]Paragraphs 24 to 33 of the claimant's submissions document set out what the claimant says are inconsistencies in the evidence of the respondent's witnesses and/or the pleadings. The Tribunal finds that these are matters for the liability hearing. Where the Tribunal had concerns about inconsistencies in evidence, it addressed those in the liability judgment. It is not satisfied that there was any conduct in the judgment which can be relied upon by the claimant. Although the Tribunal did have concern about Mr Single's evidence such that it found that the burden of proof shifted, once the burden moved to the respondent, liability did not arise because the Tribunal found a non discriminatory explanation for the conduct.[23]The Tribunal is not satisfied that this shows vexatious or unreasonable conduct in the defending of the proceedings or the way the proceedings have been conducted.[24]The claimant relies on a heading marking "evasion". This paragraph appears to relate to a submission relevant to the liability hearing. There was no specific allegation that a delay in the grievance process was discriminatory at the original hearing. The Tribunal finds this is not relevant to this hearing. Delay[25]The Tribunal has already dealt with delay (see above). The Tribunal repeats that it is not satisfied that the respondent was responsible for the delay. Respondent's breach of Tribunal orders[26]The Tribunal notes that this was a complex case with fifteen allegations and a total of seven witnesses (the claimant and six witnesses for the respondent). There was an extensive bundle for both the liability and remedy hearing.[27]We find it is not unusual for there to be a variation of orders made by the Tribunal, furthermore both parties have a duty to co-operate. There is no dispute in this case that there was extensive discovery and some documents because of the subject data access request were produced late.[28]The Tribunal makes no comment about an allegation about the preparation of the original bundle being poor as suggested by previous Judge. From time to time the Tribunal has to work with a bundle which is not well prepared. This Tribunal has not seen the original bundle before Judge Holmes. In any event the case was restarted before this Tribunal and by the time the case was before the present panel the bundle was suitable.[29]The Tribunal is not satisfied there is anything in this case to suggest that the conduct of the respondent in relation to the bundle amounted to unreasonable or vexatious conduct. Inadequate preparation of bundles[30]The Tribunal relies on this comment above. Misleading statements[31]It is extremely serious to suggest that a professional representative knowingly misled the Tribunal. The Tribunal relies on the evidence of Ms Clarke in her statement. The Tribunal found Ms Clarke throughout to be calm, conscientious and mindful of the overriding objective. The Tribunal accepts her evidence that she dealt with this case conscientiously and properly. The Tribunal finds Ms Clarke is correct when she says there were fifteen allegations. They are summarised at paragraph 143 of the Liability Judgment namely8.1 to 8.7 (seven allegations of direct discrimination but allegation8.2 is in 2 parts so a total of 8 allegations) and 7 allegations of harassment. (Allegations 3A to G)[32]As stated above, allegation 8.1.2 is in two parts, the first part related to "the respondent has failed to provide the claimant with a car allowance (see page 24 of the Reserved Judgment), paragraphs 161 to 173. The second part of allegation 8.1.2 is in relation to the contractual pension scheme "the respondent has failed to provide the claimant with access to the contractual pension scheme". Accordingly because 8.1.2 is in two parts there are fifteen allegations. (In fact even on allegation 8.1.2. in relation to pension the claimant succeeded only in part because the only finding against the respondent was in relation to failing to backdate her pension contributions sufficiently only. The allegation that the respondent failed to allow her to join the scheme failed).[33]The confusion may have arisen because although the body of the judgment makes it clear that all 7 allegations of harassment fail(see paragraphs 224 to 257 of the judgment) as well as 7 of the allegations of direct discrimination, the Tribunal has not explicitly stated that at page one.[34]The Tribunal finds there is no positive evidence whatsoever advanced to demonstrate that Ms Clarke attempted to mislead the Tribunal and the Tribunal finds she did not and that she acted properly throughout.[35]At the outset of the hearing the claimant did not suggest that he wished to pursue a Preparation Time Order on the basis there was "no reasonable prospect of success". However he has included an entry in his submission document to suggest that he does.[36]This is an extraordinary suggestion. The claimant failed all but part of one of her claims. The Tribunal is not satisfied that the respondent had no reasonable prospect of success in pursuing its response.[37]Accordingly the Tribunal finds none of the grounds have been made out and the respondent did not act unreasonably or vexatiously in either responding to the proceedings or the way the proceedings have been conducted.[38]However in case the Tribunal is wrong about that the Tribunal has gone on to consider a second limb of the test, namely whether we should exercise our discretion. The Tribunal reminds ourselves that costs are the exception rather than the rule in the Employment Tribunal. Costs do not follow the event.[39]This was a case which was complex. It involved fifteen allegations of discrimination. The Tribunal heard detailed evidence over many days. The claimant did not succeed apart from in part of one allegation.[40]There is no suggestion that the behaviour of Ms Clarke has been anything other than courteous and professional throughout.[41]The Tribunal declines to exercise its discretion to award a preparation time order.