Ms S KauserClaimantInaaya Solicitors LtdRespondent
Before
Employment Judge FicklinIn person for claimantMr Williams (instructed by solicitor) for respondentDate 3 June 2024
JUDGMENT
[1]The claimant’s claim to have been unfairly dismissed under s.98 of the Employment Rights Act 1996 is well-founded and succeeds.[2]The claimant’s claim that she was subjected to detriment as a part-time worker under the Part-Time Workers (Protection from Less Favourable Treatment) Regulations 2000 is well-founded and succeeds.[3]The claimant’s claim that she was discriminated against for having a disability under s. 15 of the Equality Act 2010 is well-founded and succeeds.[4]The claimant’s claim that she was indirectly discriminated against for having a disability under s. 19 of the Equality Act 2010 is well-founded and succeeds.[5]The claimant’s claim that the respondent failed to make reasonable adjustments for her disability under s. 20-21 of the Equality Act 2010 is well-founded and succeeds.[6]The claimant’s claim that she was discriminated against for pregnancy or maternity under s. 18 of the Equality Act 2010 is not well-founded and is dismissed. Case no. 2404170/2023[7]The claimant’s claim that she was indirectly discriminated against on grounds of her sex under s. 19 of the Equality Act 2010 is not well-founded and is dismissed.
REASONS
[1]In an oral judgment delivered on 3 June 2024, the Tribunal found the claimant’s following claims well-founded: 1.1. The claimant’s claim to have been unfairly dismissed under s.98 of the Employment Rights Act 1996. 1.2. The claimant’s claim that she was subjected to detriment as a part-time worker under the Part-Time Workers (Protection from Less Favourable Treatment) Regulations 2000. 1.3. The claimant’s claim that she was discriminated against for having a disability under s. 15 of the Equality Act 2010. 1.4. The claimant’s claim that she was indirectly discriminated against for having a disability under s. 19 of the Equality Act 2010. 1.5. The claimant’s claim that the respondent failed to make reasonable adjustments for her disability under s. 20-21 of the Equality Act 2010.[2]The Tribunal found the following claims not well-founded and dismissed: 2.1. The claimant’s claim that she was discriminated against for pregnancy or maternity under s. 18 of the Equality Act 2010. 2.2. The claimant’s claim that she was indirectly discriminated against on grounds of her sex under s. 19 of the Equality Act 2010.[3]The Respondent asked for written reasons. INTRODUCTION - CLAIM AND ISSUES[4]The Respondent, Inaaya Solicitors Limited, is a law firm based in Oldham specializing in personal injury, motorbike accidents, holiday sickness and housing disrepair. The claimant, Ms Saima Kauser, began her employment as a paralegal on 15 September 2016, though her reckonable service is longer than that because she was employed on a TUPE transfer.[5]Early conciliation commenced on 30 January 2023 and ended on 13 March 2023. The claimant presented her claim on 2 April 2023.[6]The claimant brought claims in time of 1. unfair dismissal, 2. that she suffered a determinant on the grounds of pregnancy or maternity, 3. that she was discriminated against on the grounds of her sex, 4. and on grounds of having a disability, and 5. that she was treated less favourably as a part-time worker. The respondent denies all the claims.[7]A case management hearing took place on 14 July 2023 at which the claims and issues were clarified and confirmed, and case management orders made to prepare the case for final hearing listed for 28 May-3 June 2024.[8]The issues for determination were agreed to be: A) Indirect Disability Discrimination – (Equality Act 2010, section 19)a. A “PCP” is a provision, criterion, or practice. Did the Respondent have the following PCP: i. A requirement for employees to work on a full-time basis?b. Did the Respondent apply the PCP to the Claimant?c. Did the Respondent apply the PCP to persons with whom the Claimant does not share the protected characteristic of disability, or would it have done so?d. Did the PCP put persons with whom the Claimant shares the protected characteristic of disability at a particular disadvantage when compared with persons with whom the Claimant does not share the protected characteristic of disability?e. Did the PCP put the Claimant at that disadvantage?f. Was the PCP a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: operational and profitable firm.g. The Tribunal will decide in particular: i. Was the PCP an appropriate and reasonably necessary way to achieve those aims; ii. Could something less discriminatory have been done instead; B) Discrimination arising from disability (Equality Act, s.15) a. Did the Respondent treat the Claimant unfavourably by: i. Assigning the claimant to work on debt work temporarily? ii. Requiring the claimant to work on housing and disrepair cases without training? iii. Requiring the claimant to clock in and out when taking her 15- minute unpaid breaks each hour? iv. By ignoring the claimant on her return to the workplace in 2022? v. By refusing to discuss the claimant’s portfolio of work until January 2023? vi. By dismissing the claimant? b. Did the following things arise in consequence of the Claimant’s disability: i. An inability to work in a full-time role? c. Was the alleged unfavourable treatment because of any of those things? d. Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: operational and profitable firm? e. The Tribunal will decide in particular: i. Was the treatment an appropriate and reasonably necessary way to achieve those aims? ii. Could something less discriminatory have been done instead? iv. Did the Respondent know, or could it reasonably have been expected to know that the Claimant had the disability? From what date? C) Unfair Dismissal: sections 94/98 of the 1996 Act a. Was the claimant dismissed? b. What was the reason or principal reasons for dismissal? The Respondent says the reason was redundancy. The claimant does not accept that a redundancy situation had arisen. The claimant asserts her dismissal was because she worked part-time. In any event, the claimant asserts the respondent did not select her fairly in that other potential candidates for redundancy were not included in any selection pool or assessed. The Claimant asserts that no suitable alternative employment was offered. c. If the reason was redundancy, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? The Tribunal will usually decide, in particular, whether: i. The Respondent adequately warned and consulted the Claimant; ii. The Respondent adopted a reasonable selection decision, including its approach to a selection pool and scoring within that pool; iii. The Respondent took reasonable steps to find the Claimant suitable alternative employment; Dismissal was within the range of reasonable responses; iv. A fair procedure was followed by the Respondent. The Claimant alleges that her appeal and grievance were not conducted independently or fairly. D) Pregnancy and Maternity Discrimination (Equality Act, s.18) a. Did the Respondent treat the Claimant unfavourably by doing the following things: i. Not offering her a promotion in September 2022 ii. Not conducting an appraisal with the Claimant in September 2022 iii. Providing her with temporary work iv. Failing to contact the Claimant about updated training v. Changing her role vi. Denying a pay rise vii. Dismissing her b. Was the unfavourable treatment because the Claimant was exercising or seeking to exercise, or had exercised or sought to exercise, the right to ordinary or additional maternity leave? E) Part Time Worker Detriment: Regulation 5 of the 2000 Regulations a. Did the Respondent do the following things: i. Dismiss the Claimant b. By doing so, did it subject the Claimant to a detriment? c. If so, was it done on the grounds that the Claimant was working on parttime basis? F) Indirect Sex Discrimination: section 19 of the 2010 Act a. Did the Respondent have the following PCP: i. A requirement for employees to work on a full-time basis. b. Did the Respondent apply the PCP to the Claimant? c. Did the Respondent apply the PCP to persons with whom the Claimant does not share the protected characteristic of sex (men) or would it have done so? d. Did the PCP put with whom the Claimant shares the characteristic (women) at a particular disadvantage when compared with persons with whom the Claimant does not share the characteristic (men)? e. Did the PCP put the Claimant at a disadvantage? f. Was the PCP a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: operational and profitable firm. g. The Tribunal will decide in particular: i. Was the PCP an appropriate and reasonably necessary way to achieve those aims? ii. Could something less discriminatory have been done instead?
HEARING
[9]The hearing took place in person at the Manchester Employment Tribunal.[10]There was a hearing bundle of 737 pages (HB) and separate witness statements. The bundle contained copies of the claim form and particulars of claim, response form and grounds of resistance, Case Management Order, and other documents.[11]We heard evidence from the claimant. For the respondent we heard from Mr Taher Shad, the Managing Director; Mr Mohammad Shafiq, the Business Development Manager; and Mrs Fareena Naz Siddiqi, the HR manager.[12]We heard submissions from Mr Williams and the claimant. We gave oral judgment on 3 June 2024 as above.
FINDINGS OF FACT
[13]Having considered the evidence, we found the following facts on a balance of probabilities. The parties will note that not all the matters that they told us about are recorded below. That is because we have confined our findings of fact to those relevant to the legal issues. Where there were disputes as to factual matters between the parties, we have explained the reasons for the fact finding we reached applying the balance of probabilities.[14]The claimant had been employed previously by Isaac Abraham Solicitors (IAS). IAS became Inaaya Solicitors under a Transfer of Undertakings and Protection of Employment rights transfer (TUPE). The Claimant has preserved continuity of employment from when she began with IAS to her termination date on 29 November 2022. Evidence of her exact start date at IAS was not before us.[15]The respondent accepts that the claimant was disabled in the meaning of the Equality Act 2010 (EA 2010) since December 2019, which encompasses all material times for the purposes of this claim. The claimant’s disability was chronic pain in the right side of her body with manifestation in her lower back, right arm etc.[16]In November 2022 the respondent noted a significant decline in road traffic accident (RTA) work. Members of staff working in the RTA department were told on 14 November 2022 that their roles were at risk of redundancy. The matrix and scoring method were sent on 15 November 2022. Consultation meetings were held with staff including the claimant. An additional meeting took place with the claimant on 25 November 2022 to discuss a job share option. On 29 November 2022 the claimant was told that no other member of staff wished to job share. The claimant was dismissed with the given reason being redundancy. The claimant’s appeal against that decision was rejected. The claimant also raised a grievance that was rejected, as was her appeal against the rejection of the grievance.[17]The respondent’s witnesses effectively make up the management team of Inaaya Solicitors Limited. We found the respondent’s witnesses not to be credible on several evidential points. Not all those points impact on the legal tests we apply, and we have been careful not to allow irrelevant issues to cloud our findings.[18]Examples of this include how the claimant's human resources (HR) records were deleted from the respondent’s HR system. Despite the suggestion during cross examination that the claimant herself may have been able to delete it, it was eventually accepted that the only people who could have deleted the file were Mr Shad, Mr Shafiq, Mrs Siddiqi, or a senior solicitor at the firm. It is not credible that none of the three members of the respondent’s management team knew who had deleted the claimant’s digital HR file. We are also surprised that the respondent's witnesses were apparently not interested in how such a serious data breach happened, when it happened or who was responsible. We do not accept that we were told the truth about that matter.[19]Similarly, Mr Shad said during cross examination that he did not have “unfettered access” to staff emails, and so could not personally search for an email that he allegedly sent on about 22 November 2022 stating that the claimant need not be invited to important training. In the first place, such a claim is surprising, since Ms Shad is the Managing Director and in such a small organisation must be responsible for Data Protection Act compliance, which would clearly require full access. Mr Shad eventually accepted in response to a question that he in fact did have full access to the email system. But in any event, the claimant alleged that the email was from Mr Shad to another employee, so there is no question of accessing anyone else’s email account. We do not accept Mr Shad’s eidence on this point.[20]We do not find the respondent's evidence credible regarding the claimed deletion of the recording of the meeting between the claimant and Mrs Siddiqi on 6 January 2023. We find that Mrs Siddiqi dissembled about why the recording was not available to the claimant, maintaining through most of cross examination that the agreement had only been for a transcript of the recording, not the recording itself.[21]When it was put to her that the transcript itself states that she said she would send the recording, she said that she had become uncomfortable with the tone of the claimant’s correspondence and had concerns about what the claimant might do with the recording of her voice, though it was not clear what that might be. She said that she withdrew her consent to disclosing the recording, which is also what it states in one of the letters sent to the claimant about the grievance process. We find that this makes no sense because there is no difference between disclosing the transcript, which Mrs Siddiqi maintained was accurate, and the recording itself.[22]Mrs Siddiqi and Mr Shad both said that the digital file of the recording was lost when it failed to transfer to a new device in an upgrade to new laptop computers. Mr Shad could not answer when or by what process the new laptops were obtained or what happened to the old ones. It seems to the panel that this is another example of the management team’s implausible lack of knowledge or even curiosity about important, recent matters at a small business.[23]During cross examination, the claimant put to Mr Shad that Mrs Siddiqi was a parttime employee. He accepted that but said that she had been on a part-time, workfrom-home contract when her employment was transferred from IAS to the respondent under TUPE. But that is not consistent with what Mrs Siddiqi said about her work pattern at IAS or in the respondent's previous premises that were occupied until sometime in 2021. We also observe that another employee was on a full-time contract but allowed to work part-time hours with Mr Shad’s approval, for reasons said to be either studies or family. We find that the respondent’s approach to part-time work was not consistent and any distinction between employees or their roles was obscured by the lack of clarity and credibility of the respondent’s witnesses.[24]The final issue is that the appeal against the rejection of the claimant’s grievance was purportedly handled by an external party, a solicitor named Iram Sheikh. Mr Shad said in oral evidence that Ms Sheikh had done locum work for the firm in the past, so he knew that she was a solicitor. He claimed that he knew nothing else about her. He did not know where she worked at the time that he asked her to adjudicate on the grievance appeal. He did not know what type of law she practised. Since the claim was issued, Ms Sheikh had become impossible to contact. Mr Shad claimed to have no further knowledge of her. This evidence is not credible. Mr Shad must have seen Ms Sheikh’s CV at some point; he must have confirmed basic facts about her. He must have her contact details and bank details to have paid her. The suggestion that this person has become uncontactable is incredible. We do not accept that we have been told the truth about the respondent’s knowledge of Ms Sheikh.[25]It is clear that in Autumn 2022, the Respondent decided that their standard working pattern would become a four-day week from Monday to Thursday from 9am to 5pm. In this judgment, we mean ‘full-time’ in this context unless we say otherwise. The evidence before us does not show that it was inherent in this change that roles had to be full-time for reasons that will be set out.[26]We have set out our findings in this order because we felt it was the clearest approach to addressing the claims and evidence.[27]The respondent says that the claimant was made redundant because the respondent was pivoting to housing disrepair (HDR) from other types of legal work and the positions had to be full-time. The respondent’s redundancy business plan states that experience and ability with HDR work was effectively the only criteria.[28]The claimant was an experienced paralegal with litigation experience. She had worked on RTA and debt matters for several years. There is no evidence that suggests that she was not able to learn HDR law with an appropriate opportunity.[29]The respondent’s job advertisements with start dates on 1 March 2023 are clearly areas of law and roles in which the claimant was experienced and capable and were not limited to HDR work. Mr Shafiq said in his evidence that RTA work was no longer viable. But the adverts included work for RTA and debt litigators, both of which the claimant had done for years. At least one of the roles is a hybrid role that would allow work from home, but more importantly, one of the adverts would accept a part-time worker.[30]We accept that the advert must have been posted on Indeed, the job advertisement website, at some point between the claimant’s last day ie 29 November 2022, and some time in February 2023. We are also persuaded that the adverts must have been written during or after the respondent embarked on the redundancy programme, because the adverts refer to the four-day work week and HDR cases. We find that the job adverts are a public statement of their true intentions regarding the business.[31]The respondent’s witnesses Mr Shad and Mr Shafiq professed to know nothing about the adverts. They both said that they were not aware who wrote the adverts or how they came to be posted on a public website, and that they did not represent the respondent's hiring intentions. Mr Shafiq said that the adverts could have been posted automatically, or could have been an exercise in CV banking for future consideration. We do not accept this. Mr Shad is the respondent's sole director, and it was clear that Mr Shafiq is the only other member of the management team with input in recruiting. It is not credible that the only two people with the authority and responsibility to recruit for the firm know nothing about these very specific adverts and were incurious about how they came to be posted on a public website.[32]We further note that there was a period during the redundancy consultation that the respondent was open to job share arrangements. Though this option was not taken up, it shows that there is no inherent reason that a fee-earner could not be part-time.[33]The redundancy process began on 14 November 2022 and ended at an indeterminate date, but a date that was certainly later than the date the claimant was dismissed on 29 November 2022. The evidence shows, and the respondent accepts, that another employee had agreed to take redundancy but continued to work. That employee later changed her mind in January 2023. The claimant was made redundant in November 2022. We also note that the other employee was granted employment terms that did not appear in the redundancy exercise. If the redundancy exercise had been genuine, we would expect the same terms to apply to everyone, and so the other employee should have been dismissed at the same time as the claimant.[34]Further, it seems to us that even if there had been a redundancy situation, the claimant’s redundancy was unfair because she could have continued in her role as a part-time worker.[35]The claimant was the only part-time fee-earner and was told that she must become full-time (Mon-Thurs) to avoid redundancy. This was not a genuine criterion because of the potential for job share and because the business almost immediately advertised for a part-time position well within the claimant’s competence. The Respondent did not adopt a reasonable selection decision.[36]The scoring matrices, whether they were used or not, were not credible. The respondent’s witnesses could not tell the Tribunal what source material had been used or what actual time frame was covered, and their evidence was not clear about how the subjective aspects of the matrix were completed. It is not clear to us whether Ms Shad scored the subjective areas directly or gave commentary to Ms Shafiq who scored them.[37]Mr Shafiq and Ms Shad could not give us the dates, but on the basis that the matrix was scored in relation to the claimant’s previous twelve months of employment, including time away for sick leave but not for maternity leave, it seems to us that it runs from about October 2019 to the end of October 2022. The claimant’s last appraisal was in June 2018, in which her work was praised, and she received a pay rise. We were not taken to any evidence of appraisal, assessment, timeliness, billing targets or anything else that showed the basis of the claimant’s matrix scores.[38]Nothing was put to the claimant about her competence. We find that the claimant's matrix scoring was arbitrary. The respondent’s evidence was that the matrices were not used because the claimant did not accept the proposed position, but we find that it is evidence that the process was intended to reach the outcome of dismissing the claimant.[39]The respondent did not take reasonable steps to find the claimant suitable alternative employment as shown by the advertisement of either hybrid or particularly part-time roles directly after her redundancy. All the advertised roles were within the claimant’s experience and capability. Dismissal was not in the range of reasonable responses.[40]In the claimant’s final meeting on 29 November 2022 it was suggested that she could take over a part-time administrative role occupied by another employee. During the course of the meeting, Mr Shafique seemed to offer and then withdraw this option. The evidence was that Mr Shad allowed the other employee to work part-time for personal reasons, which may have been legal studies but which the claimant said was for family reasons. In any event, there was no explanation of why another staff member, albeit not a fee-earner, was arbitrarily allowed to work part-time hours. We observe that the respondent had an inconsistent approach to staff permission to work part time. Detriment to Part-Time Workers[41]The claimant was dismissed. That dismissal was a detriment. The respondent’s own case is that the claimant was dismissed because she was a part-time employee. The fact that that reason given may have been a sham or part of a nongenuine redundancy exercise does not change the culpability of that act. The respondent’s arguments that the dismissal was justified fail for the reasons that we have set out. Disability[42]The claimant's medical evidence stated that she was not to work a full-time role and required certain breaks. She was ultimately dismissed because of her inability to work a full-time (Mon-Thurs) role, according to the respondent's case. We find that her inability to work a full-time role relates directly to her disability. The claimant’s dismissal was unfavourable treatment.[43]Dismissal is not a proportionate means of achieving the legitimate aim to maintain service levels and run a profitable firm. A less discriminatory practice could have been instituted through job-share, or asking the claimant to accept the part-time role that was advertised in January or February 2023. We find that this would have balanced the needs of the claimants and respondent.[44]We also find that the requirement for the claimant to clock in and out during her medically prescribed breaks every hour to be unfavourable treatment. We make this finding in the context that the claimant was a longstanding employee, in an open-plan office in front of her colleagues, and the respondent accepted that it had no timekeeping purpose.[45]The only consistent evidence from the respondent's witnesses about the clock card was that it had nothing to do with working hours, but was a matter of health and safety to determine who was in the building. This is belied by the fact that the claimant was required to clock in and out on her breaks irrespective of whether she left the building.[46]We accept the claimant’s evidence that the management team of Mr Shad, Mr Shafiq and Mrs Siddiqi were not required to use the machine. Mrs Siddiqi’s own evidence was that she did not use the machine every time she entered the building. If it solely pertained to the head count in the building for emergency purposes, then there should have been a consistent approach to its use. We find that the requirement that the claimant clocked in and out during her breaks was demeaning as it served no practical purpose. There was no legitimate aim to this practice at all.[47]For completeness, we note that we do not find that assigning the claimant debt work amounts to unfavourable treatment.[48]We also find that the Respondent’s direction to the claimant to put her mobile phone away is not related to the claimant’s disability. Nor does the respondent's failure to discuss the claimant’s portfolio of legal work or other promotion relate to her disability.[49]We turn to the issues arising in the claim that the claimant was indirectly discriminated against. The respondent accepted that the claimant was disabled at the material time. The claimant’s medical evidence shows that her disability required that she work reduced hours with certain breaks. The respondent discriminated against the claimant by requiring her to work full-time. The practice put the claimant at a disadvantage because her medical advice dictated that she should not work full-time.[50]We have considered at length whether the practice was a proportionate means of achieving the respondent’s legitimate aims. But that is belied by the potential for job-share and the advertisement for a part-time role that was clearly within the claimant’s competency. We find that it was not proportionate.[51]The requirement to work full-time hours put the claimant at a substantial disadvantage in the redundancy exercise, in comparison with someone who was not disabled and so able to work full-time. The respondent could have taken reasonable steps to avoid the disadvantage such as advertised for a matching jobshare for the claimant's hours or given her one of the advertised posts.[52]We do not accept that the respondent failed to make any other reasonable adjustments.[53]The claimant had a period of working reduced hours that lasted from January 2021 until 12 April 2021 by agreement with the respondent. At that point the respondent rescinded the part time agreement and required her to return to full time work, which at that point meant Monday through Friday. The claimant was then signed off from work with fit notes until 27 July 2021.[54]A fit note in May 2021 specified the adjustments she needed to work, which included working part-time. She was allowed to return to part-time hours on or about 27 July 2021 under the earlier agreement. This agreement was extant until she started maternity leave on 16 August 2021.[55]When she returned to work in September 2022, her part-time working agreement was in place, and after an unclear but short delay, she was provided an auxiliary aid in the form of an ergonomic keyboard. We find that the previous failure by the respondent to make reasonable adjustments ended as of 27 July 2021, therefore making the time limit for bringing a claim in the Employment Tribunal under this head 26 October 2021. Any claim for the period during which the respondent failed to make reasonable adjustments up to 27 July 2021 is out of time. Sex Discrimination[56]There is no evidence before us that the claimant’s sex was relevant in the issue of requiring full-time work. The evidence does not show that the respondent would not have applied the practice of requiring full-time work to men, to the extent that it was a genuine requirement at all. Whatever the problems of this practice, which we have already outlined, there is no evidence that the claimant's sex had anything to do with it.[57]The claimant argues that the failure to offer her a promotion in September 2022, by which we understand to mean the failure to deal with her portfolio for submission to the Solicitors Regulation Authority (SRA) relating to her qualification as a solicitor, amounts to discrimination based on her pregnancy and maternity status. She also argues that failure to offer her an appraisal, denying her a pay rise, and other issues also amount to discrimination. But the protected period for a maternity discrimination claim runs from the beginning of the pregnancy to the end of the period of additional maternity leave, or the claimant's return to work, whichever comes first. The claimant raised all the issues after her return on 21 September 2022, which is outside the protected period.
LAW
[58]The Employment Rights Act 1996 materially states: 98 General (1)In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a)the reason (or, if more than one, the principal reason) for the dismissal, and (b)that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2)A reason falls within this subsection if it— (a)relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b)relates to the conduct of the employee, (c)is that the employee was redundant, or ... 139 Redundancy (1)For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a)the fact that his employer has ceased or intends to cease— (i)to carry on the business for the purposes of which the employee was employed by him, or (ii)to carry on that business in the place where the employee was so employed, or (b)the fact that the requirements of that business— (i)for employees to carry out work of a particular kind, or (ii)for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.[59]Where an employer claims that there is a redundancy situation, which means that there is a reduction in the need for employees to do work of a particular kind, then the employer must prove that this was the only, or at least the main reason for dismissal. If the employer cannot prove that, then the dismissal is unfair. Employees with two or more years’ continuous employment have statutory protection against unfair dismissal.[60]If redundancy was the sole or main reason for the dismissal, then the employer must also prove that it acted reasonably in treating redundancy as a sufficient reason to dismiss. The tribunal considers whether the employer gave reasonable consideration to a pool of employees who were selected for redundancy, whether there were reasonable criteria used to select who was in the pool, whether there were reasonable steps taken to consult with the employees about the pool, and whether the employer made a reasonable attempt to find alternative roles for the selected employees. The tribunal can only interfere if the employer’s decision, or its procedure, was so unreasonable that no reasonable employer could have acted that way. Part-Time Workers[61]The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 materially states: Less favourable treatment of part-time workers 5.—(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker— (a)as regards the terms of his contract; or (b)by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. (2) The right conferred by paragraph (1) applies only if— (a)the treatment is on the ground that the worker is a part-time worker, and (b)the treatment is not justified on objective grounds.[62]Claims under the Part-time Workers Regulations require an actual comparator and cannot be determined by reference to a hypothetical comparator. Disability Discrimination[63]Section 15 of the EA 2010 defines discrimination arising from a disability as follows:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[64]The Equality and Human Rights Commission: Equality Act 2010 Code of Practice provides that when considering discrimination arising from disability there is no need to compare a disabled person’s treatment with that of another person. It is only necessary to demonstrate that the unfavourable treatment is because of something arising in consequence of the disability. The EHRC Employment Code indicates that unfavourable treatment should be construed synonymously with ‘disadvantage’ and gave examples including: ‘a person may have been refused a job, denied a work opportunity or dismissed from their employment.’ Unfavourable treatment is not the same as detriment. The test is whether a reasonable worker would consider that the treatment is unfavourable.[65]In the case of Sheikholeslami v University of Edinburgh [2018] IRLR 1090, the EAT held that the approach to this issue requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and(ii) did that something arise in consequence of B's disability? The first issue involves an examination of the putative discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment, then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.[66]The actual disability does not need to be the cause of the unfavourable treatment under s.15 but it needs to be “a significant influence” or “an effective cause of the unfavourable treatment”. It is not enough that but for their disability an employee would not have been in a position where they were treated unfavourably. The unfavourable treatment must be because of the something which arises out of the disability - Robinson v Department of Work and Pensions [2020] EWCA Civ. 859.[67]Section 18 of the EA 2010 provides:(1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity.(2) A person (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.(3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave.(4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.(5) For the purposes of subsection (2), if the treatment of a woman is in implementation of a decision taken in the protected period, the treatment is to be regarded as occurring in that period (even if the implementation is not until after the end of the period).(6) The protected period in relation to a woman’s pregnancy, begins when the pregnancy begins, and ends- (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy; (b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy.(7) Section 13, so far as relating to sex discrimination, does not apply to treatment of a woman in so far as – (a) it is in the protected period in relation to her and is for a reason mentioned in paragraph (a) or (b) of subsection (2), or (b) it is for a reason mentioned in subsection (3) or (4).[68]Case law provides that the motivation of the decision-maker must be considered. Discrimination need not be the only or even the main reason for the less favourable treatment provided it significantly influenced the decision-maker, ie in a more than trivial way. Provided the protected characteristic had a significant influence on the outcome, discrimination is made out, Nagarajan v London Regional Transport [1999] IRLR 572, HL. Indirect Discrimination[69]Section 19 of the EA 2010 states:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. ...[70]A provision, criterion or practice (PCP) cannot be considered in isolation. The adverse disparate impact must also be established. Once a PCP has been established, the claimant must show that the PCP is to the disadvantage of his or her group. Before any assessment of the impact of the PCP can be made, the appropriate pool for comparison must be identified.[71]In the case of Essop v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27 the Supreme Court stated that the purpose behind indirect discrimination legislation is to protect people with a protected characteristic from suffering disadvantage where an apparently neutral PCP is applied. It is about achieving a level playing field and removing hidden barriers.[72]There is no obligation on the employee to explain the reason why the PCP put the group at a disadvantage when compared to others: it is enough simply to show that there is disadvantage. However, the requirement to justify PCP should not be seen as placing an unreasonable burden on employers.[73]In Chief Constable of West Midlands Police v Harold [2015] IRLR 790, the EAT emphasised that justification is an objective evaluation. What has to be justified is the outcome, not the process followed. In Allonby v Accrington and Rossendale College and others [2001] IRLR 364 the Court of Appeal made it clear that: “once an employment tribunal has concluded that the [PCP] has a disparate impact on a protected group it must carry out a critical evaluation of whether the reasons demonstrate a real need to take the action in question. This should include consideration of whether there was another way to achieve the aim in question.”[74]The EAT emphasised in Rajaratnam v Care UK Clinical Services Ltd (UKEAT/0435/14) that it is the rule that needs to be justified and not its application to the individual concerned.[75]The Supreme Court held, in Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15 that to be proportionate, a measure must be an appropriate and necessary means of meeting the legitimate aim. Actions will not be proportionate if less discriminatory means to achieve the result were available.[76]The burden of proving objective justification is on the employer. The employer needs to produce cogent evidence that the justification defence is made out. However, the claimant has to show some evidence of disparate impact before the burden of proof placed on the employer.[77]The EA 2010 materially states: 20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. ... 21 Failure to comply with duty to make reasonable adjustments (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. ...[78]Guidance for a Tribunal’s approach to reasonable adjustments was given in Environment Agency v Rowan [2008] ICR 218: - The PCP must be identified; - The identity of the non-disabled comparators must be identified (where appropriate); - The nature and extent of the substantial disadvantage suffered by the claimant must be identified; - The reasonableness of the adjustment claimed must be analysed.[79]The duty only arises if the employer knows or ought reasonably to know that the employee is disabled and that the PCP put her at a substantial disadvantage. It is for the Tribunal to assess for itself the reasonableness of adjustments. What is a reasonable step for an employer to take will depend on all the circumstances of each individual case.[80]In Royal Bank of Scotland v Ashton 2011 ICR 632, EAT, (confirmed by the Court of Appeal in Owen v Amec Foster Wheeler Energy Ltd and anor 2019 ICR 1593) it was held that when addressing the issue of reasonableness of any proposed adjustment the focus has to be on the practical result of the measures that can be taken. Mr Justice Langstaff stated: “It is not — and it is an error — for the focus to be upon the process of reasoning by which a possible adjustment was considered… [I]t is irrelevant to consider the employer’s thought processes or other processes leading to the making or failure to make a reasonable adjustment.”[81]The test of reasonableness in s.20 of the EA 2010 is an objective one. It is the Employment Tribunal’s view of what is reasonable that matters (Smith v Churchills Stairlifts plc 2006 ICR 524, CA). The exercise for the Tribunal is to determine objectively the extent to which any objected to adjustment would cause disruption, not whether the employer reasonably believed that such disruption would occur. The proposed adjustment must be considered from both sides.[82]A Tribunal may be required to substitute its own view for that of the employer, rather than focusing on the reasonableness of the process by which the employer reached the decision not to make a proposed adjustment.
CONCLUSIONS
[83]We refer to our findings made above.[84]The claimant was unfairly dismissed within the meaning of s. 98 of the Employment Rights Act 1996. In this context that means we determine whether the claimant was dismissed mainly because the respondent intended to cease to carry on the business or work of a particular kind that the claimant did. We find that there was no genuine redundancy situation. We find that the reason for the claimant’s dismissal was not because of redundancy, but because she was part-time. Even if there had been a redundancy situation, the respondent did not act reasonably in treating that as a sufficient reason to dismiss the claimant. Her redundancy was unfair because she could have continued in her role as a part-time worker. Dismissal was not in the range of reasonable responses. Her claim is wellfounded. Part-Time Work[85]Regarding detriment to part-time workers under Regulation 5 of the Part-Time Workers (Protection from Less Favourable Treatment) Regulations 2000, we find her claim to be well-founded. The legal test under Regulation 5 is whether the claimant has been subjected to a detriment as a result of being a part-time worker, and the treatment is not justified on objective grounds. The claimant was subjected to the detriment of dismissal and with reference to our findings, there was no objective justification for this. Disability Discrimination[86]We find that the respondent discriminated against the claimant because of her disability under s. 15 of the EA 2010. The claimant’s dismissal was unfavourable treatment. The claimant's medical evidence stated that she was not to work a fulltime role. We find that her inability to work a full-time role relates directly to her disability.[87]Dismissing the claimant was not a proportionate means of achieving the legitimate aim to maintain service levels and run a profitable firm. A less discriminatory practice could have been instituted that this would have balanced the needs of the claimants and respondent. Her claim is well-founded on that basis.[88]We also find that the requirement for the claimant to clock in and out during her medically-prescribed breaks every hour to be unfavourable treatment. There is no legitimate aim to this practice. Indirect Disability Discrimination[89]The claimant was indirectly discriminated against on the grounds of her disability under s.19 of the EA 2010. Her medical evidence shows that her disability required that she work reduced hours with certain breaks. The respondent discriminated against her by requiring her to work full-time. The practice put the claimant at a disadvantage because her medical advice dictated that she should not work fulltime.[90]Requiring her to work full-time was not a proportionate means of achieving the respondent's legitimate aims, because the respondent was advertising for parttime roles that she could have done. The claimant’s claim is well-founded.[91]The claimant claims that the respondent failed to make reasonable adjustments under s. 20-21 of the EA 2010. We find that the requirement to work full-time hours amounts to a criterion that put the claimant at a substantial disadvantage in the redundancy exercise which is a relevant matter, in comparison with someone who was not disabled and so able to work full-time. The respondent could have taken reasonable steps to avoid the disadvantage such as advertised for a matching jobshare for the claimant's hours or given her one of the advertised posts. Sex Discrimination[92]The claimant claims that the respondent discriminated against her indirectly based on her sex under s. 19 of the EA 2010 by imposing a practice of requiring full-time working hours which led to her dismissal. The test is whether the respondent applied or would apply that practice of requiring full-time work to men, and if it would then whether it puts women at a disadvantage that is not proportionate to the legitimate aim, which remains an operational and profitable firm. There is no evidence before us that the claimant’s sex was relevant in this issue. The evidence does not show that the respondent would not have applied the practice of requiring full-time (Mon-Thurs) work to men, to the extent that it was a genuine requirement at all. We find that this is not well-founded and is dismissed.[93]We do not have jurisdiction to deal with claims under s. 18 of the EA 2010 for pregnancy and maternity discrimination outside the protected period. Her claim under pregnancy and maternity discrimination is not well-founded and is dismissed.
REMEDY
[94]The Tribunal ordered that remedy would be determined by the same Tribunal in a one-day hearing on 3 September 2024, if not agreed. REMEDY JUDGMENT
REMEDY
[1]The claimant’s remedy for unfair dismissal is the sum of £10,320.28, made up of the following: 1.1. A basic award of £1269.45, minus redundancy pay of £797.71, leaving £474.74 in gross pay for the basic award. 1.2. A compensatory award of 43 weeks’ pay of £7798.05, £30 expenses, and £500 for loss of statutory protection, coming to £8328.05. 1.2.1. 10% uplift on the compensatory award for the respondent’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, bringing the total to £9,160.86. 1.3. Interest of £684.68.[2]The claimant’s remedy for discrimination, detriment, failure to make reasonable adjustments and less-favourable treatment for being disabled and a part-time worker is the sum of £28,446.44, made up of the following: 2.1. £22,500 for hurt, distress and humiliation. 2.1.1. 10% uplift for the respondent’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, bringing the total to £24,750. 2.2. Interest of £3,696.44.[3]The claimant's remedy for the respondent’s failure to provide written particulars of employment under s. 38 of the Employment Act 2002 is two weeks’ salary, £362.70.[4]This comes to £39,129.42. Grossing up £9,129.42 at 20% makes £11,411.78.[5]The total award that the respondent must pay the claimant is £41,411.78. RECONSIDERATION JUDGMENT On the Tribunal’s own volition, the judgment on remedy is reconsidered as below. There is no need for a further hearing or to hear from the parties.
REMEDY
[1]The claimant’s remedy for unfair dismissal is the sum of £9,160.86, made up of the following: 1.1. A basic award of £1269.45, minus redundancy pay of £797.71, leaving £474.74 in gross pay for the basic award. 1.2. A compensatory award of 43 weeks’ pay of £7798.05, £30 expenses, and £500 for loss of statutory protection, coming to £8328.05. 1.2.1. 10% uplift on the compensatory award for the respondent’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, bringing the total to £9,160.86.[2]The claimant’s remedy for discrimination, detriment, failure to make reasonable adjustments and less-favourable treatment for being disabled and a part-time worker is the sum of £28,446.44, made up of the following: 2.1. £22,500 for hurt, distress and humiliation. 2.1.1. 10% uplift for the respondent’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, bringing the total to £24,750. 2.2. Interest of £3,696.44.[3]The claimant's remedy for the respondent’s failure to provide written particulars of employment under s. 38 of the Employment Act 2002 is two weeks’ salary, ie £362.70.[4]This comes to £37,970. Grossing up £7,970 at 20% makes £9,564.[5]The total award that the respondent must pay the claimant is £39,564.[6]In a judgment signed on 22 October 2024 the Tribunal made the following judgment on remedy following the claimant’s successful claims: 6.1. The claimant’s remedy for unfair dismissal is the sum of £10,320.28, made up of the following: 6.1.1. A basic award of £1269.45, minus redundancy pay of £797.71, leaving £474.74 in gross pay for the basic award. 6.1.2. A compensatory award of 43 weeks’ pay of £7798.05, £30 expenses, and £500 for loss of statutory protection, coming to £8328.05. 6.1.2.1. 10% uplift on the compensatory award for the respondent’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, bringing the total to £9,160.86. 6.1.3. Interest of £684.68. 6.2. The claimant’s remedy for discrimination, detriment, failure to make reasonable adjustments and less-favourable treatment for being disabled and a part-time worker is the sum of £28,446.44, made up of the following: 6.2.1. £22,500 for hurt, distress and humiliation. 6.2.1.1. 10% uplift for the respondent’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, bringing the total to £24,750. 6.2.2. Interest of £3,696.44. 6.3. The claimant's remedy for the respondent’s failure to provide written particulars of employment under s. 38 of the Employment Act 2002 is two weeks’ salary, £362.70. 6.4. This comes to £39,129.42. Grossing up £9,129.42 at 20% makes £11,411.78. 6.5. Total £41,411.78.[7]The Respondent asked for written reasons. During preparation of the reasons it became apparent that there were errors in the remedy calculation. The Tribunal reconsiders the remedy judgment of its own volition as set out below. There is no need for a hearing.[8]The reconsidered judgment of the Tribunal corrects the interest calculation and corrects the value of the appropriate Vento bands based on the claimant’s date of claim, 3 April 2023. The quantum of the claimant’s award for hurt, distress and humiliation to which the Vento band applies has not changed. Claim and Issues[9]The Respondent, Inaaya Solicitors Limited, is a law firm based in Oldham specialising in personal injury, motorbike accidents, holiday sickness and housing disrepair. The claimant, Ms Saima Kauser, began her employment as a paralegal on 15 September 2016, though her reckonable service is longer than that because she was employed on a TUPE transfer. For remedy, the Tribunal calculated her employment from her start date at the previous iteration of the firm, which was in August 2015, so her reckonable employment was seven years.[10]Early conciliation commenced on 30 January 2023 and ended on 13 March 2023. The claimant presented her claim on 2 April 2023.[11]The claimant brought claims in time of 1. unfair dismissal, 2. that she suffered a determinant on the grounds of pregnancy or maternity, 3. that she was discriminated against on the grounds of her sex, 4. and on grounds of having a disability, and 5. that she was treated less favourably as a part-time worker. The respondent denied all the claims.[12]The liability hearing took place in person at the Manchester Employment Tribunal on 28-31 May and 3 June 2024. We found for the claimant.
LAW
[13]Rule 70 of the Employment Tribunal Procedure Rules as they stood at the date of hearing stated: “A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again."[14]Rule 68 of the Employment Tribunal Procedure Rules in force since 6 January 2025 is materially identical for these purposes.[15]Compensation for unfair dismissal is dealt with in sections 118 to 126 inclusive of the Employment Rights Act 1996. The compensatory award is dealt with in section 123. Under section 123(1): "the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer"[16]The remedy for complaints of discrimination at work is set out in section 124 of the Equality Act 2010. Under section 124(2)(b), where a tribunal finds that there has been a contravention of a relevant provision it may order the respondent to pay compensation to the claimant. The compensation which may be ordered corresponds to the damages that could be ordered by a county court in England and Wales for a claim in tort (section 124(6) and section 119(2)). There is no upper limit on the amount of compensation that can be awarded.[17]The aim of compensation is that ‘as best as money can do it, the [claimant] must be put into the position she would have been in but for the unlawful conduct’ (Ministry of Defence v Cannock and ors 1994 ICR 918, EAT). In other words, the aim is that the claimant should be put in the position she would have been in if the discrimination had not occurred. The assessment of past loss requires a comparison between the factual (what has happened) and the counter-factual (what would have happened without the discrimination, or the ‘but for’ scenario). The assessment of future loss requires a comparison of what may happen in the future, and what would have happened in the future if there had been not discrimination.[18]When assessing what would have happened in the past on a contingency, or what may happen in the future, the tribunal must not apply a ‘balance of probabilities’ approach. Instead, the tribunal must make an assessment of relevant chances and then factor that assessment into the calculation of loss. The calculation may involve a percentage increase or decrease, or choosing a point in time taking account the various chances. However, ‘application of this principle does not require an Employment Tribunal to factor in every imaginable possibility, however remote. Common sense comes into play. The Employment Tribunal is expected to make an assessment of realistic chances’ (Chief Constable of Northumbria Police v Erichsen UKEAT/0027/15/BA, paragraphs 18 to 22).[19]To decide what position the claimant would have been in if the discrimination had not occurred, the tribunal must look at what loss or injury has been caused by the discrimination. In cases where the loss or injury suffered has more than one cause, this needs very careful consideration. In BAE Systems Ltd v Konczak [2017] 893 the Court of Appeal explained the principles which apply in cases where discrimination is one of two or more causes of an injury, or where the claimant has a pre-existing disorder or vulnerability: “As a matter of principle, and supporting the fundamental approach that compensation should never become windfall, where an injury is divisible, even if on a rough and ready approach to the division, recompense must be limited to the consequences of identified injury attributable to the tort in question. I further support the proposition that it will often be appropriate to look closely, particularly in a case where psychiatric injury proves indivisible, to establish whether the preexisting state may not nevertheless demonstrate a high degree of vulnerability to, and the probability of, future injury: if not today, then tomorrow.”[20]In complaints of discrimination, awards may include compensation for financial loss and non-pecuniary losses such as injury to feelings or psychiatric injury. In Prison Service and others v Johnson [1997] ICR 275 EAT, the EAT set out the following principles that the ET should consider in making an award for injury to feelings: “(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham M.R., be seen as the way to “untaxed riches.” (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (v) Finally, tribunals should bear in mind Sir Thomas Bingham's reference to the need for public respect for the level of awards made.”[21]In Vento v Chief Constable of West Yorkshire Police (No. 2) [2002] EWCA Civ 1871 the Court of Appeal identified three broad bands of compensation for injury to feelings awards. Presidential Guidance on injury to feelings issued annually sets out updated Vento bands including the 10% ‘Simmons v Castle’ uplift. The guidance for claims presented before 6 April 2023, as the claimant’s was, is as follows: lower band £990 to £9,900 (less serious cases); middle band £9,900 to £29,600 (cases that do not merit an award in the upper band); and upper band £29,600 to £49,300 (the most serious cases), with the most exceptional cases capable of exceeding £49,300. REMEDY REASONS AND RECONSIDERATION[22]There were remedy hearings on 3 September and 11 October 2024. The Tribunal made the findings on remedy as above. I was asked for reasons for the remedy judgment. Where appropriate I reconsider the remedy judgment. Unfair Dismissal[23]For unfair dismissal we award the claimant a week’s pay per full year of employment. Her employment runs from August 2015 because the claimant joined the respondent on a TUPE transfer from Isaac Abraham Solicitors, until November 2022, so seven years. Seven weeks times her gross pay of £181.35 comes to £1269.45. From this we subtract the redundancy pay she received on dismissal which was £797.71, leaving her £474.74 in gross pay for the basic award.[24]Under the compensatory award for unfair dismissal, we accept that the claimant should be compensated for 43 weeks between her dismissal on 29 November 2022 and the start of her new employment on 25 September 2023.[25]We have looked carefully at the evidence in the remedy hearing bundle about the claimant's efforts to find work. We find that the claimant was very diligent in her search for work, having secured interviews within days of her unfair dismissal. There is extensive evidence of her consistent efforts through her period of unemployment to find work both in and out of the legal field. The claimant had certain parameters that meant she needed to work part-time and we accept that this limited the type of jobs she could reasonably apply for. The claimant has shown that she did everything she could do in that period to find appropriate work.[26]We award the claimant 43 weeks of net pay, which because her pay fell below the tax threshold, is the same as gross pay, ie £181.35 per week. This comes to £7798.05.[27]The claimant has claimed £30 in expenses and we find this reasonable. We also award the claimant £500 in loss of statutory protection. This brings the compensatory award to £8328.05. (£7798.05 + £30 + £500 = £8328.05)[28]We also find that there has been an unreasonable failure by the respondent to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures (‘the Acas Code’). Notwithstanding the sham nature of the redundancy exercise, the respondent did not adequately allow for the claimant to be accompanied in meetings, did not keep adequate records of meetings or keep them at all, had no procedure or remedy for her grievances about treatment around hours and training, and failed to provide any legitimate kind of appeal process. We find that the compensatory award should be increased by 10% to reflect these partial failings to comply with the ACAS Code. This increases the award to £9,160.86. (£8328.05 + .1(£8328.05) = £9160.86)[29]The claimant has claimed future losses in income, primarily resulting from what she considers to be the likelihood that she would have qualified as a solicitor at some point. She claims that the discrimination and unfair dismissal and the respondent’s hands has significantly delayed that qualification. We find that the evidence does not show that the claimant has lost the chance to qualify as a solicitor for these reasons. There are multiple routes to qualification as a solicitor now and it seems to us that the claimant and Mr Shad were talking about different routes in their evidence. But whichever route was pursued, is not clear to us that the respondent had any intention of materially supporting the claimant’s efforts to qualify as a solicitor. The evidence does not show that the respondent’s failings as a employer directly impeded the claimant’s route to qualification as a solicitor. We take into account that after the 43 weeks of intensive searching to find an appropriate job, the claimant found a position in the legal field on a higher salary. We do not find any grounds for an award under future loss of earnings.[30]In the judgment, the Tribunal awarded interest of £684.68. The Tribunal reconsiders this award of its own volition and recognises that interest is not awarded for compensatory unfair dismissal. The judgment is amended above. Award for Hurt, Distress and Humiliation[31]For the effect of the discrimination the respondent inflicted on the claimant, we turn to the Vento bands to determine compensation. The parties agree that the case falls in the middle band.[32]The upper band is reserved for the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. The lower band is appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. We agree with the parties that this case does not fall into either the upper or lower band.[33]While the panel agreed that it would not be correct to describe the respondent’s actions toward the claimant as a ‘campaign’, there were multiple occurrences of direct and indirect discrimination and a failure to make reasonable adjustments. In the judgment we found that the claimant’s submission of £22,500 is appropriate for the degree of hurt, distress and humiliation the respondent caused her by the respondent’s discrimination.[34]In the oral judgment we referred to the middle Vento Band being £11,700 to £35,200. The guidance for claims presented before 6 April 2023, as the claimant’s was, is that the middle band was £9,900 to £29,600. Recognition of this has no bearing on the award of £22,500, which in all the circumstances remains appropriate.[35]For the reasons we gave above, the 10% uplift for failure to follow the ACAS code also applies to this award. This brings the award to £24,750.[36]Interest at 8% applies to the award for injury to feelings (£24,750) from the date of discrimination to the date of calculation, which was 11 October 2024. The claimant has used the date of dismissal (29 November 2022) as the date of discrimination in her submissions, and we do not go behind this. There were 682 days between her dismissal and 11 October 2024, at £5.42 daily, for a total of £3,696.44. ((682/365) x .08 x £24,750). Added to the uplifted award for hurt, distress and humiliation to the claimant, the award comes to £28,446.44. Written Particulars of Employment[37]We also accept that the claimant was not provided at any stage an updated written particulars of her employment. Under s. 38 of the Employment Act 2002, we must make an award unless we find that there are exceptional circumstances that would make the award unjust and inequitable. We find there are no exceptional circumstances, and we find that it is just and equitable to award two weeks salary. At £181.35, this comes to £362.70.
CONCLUSION
[38]For the reasons set out above the judgment signed 22 October 2024 is reconsidered of the Tribunal’s own volition. The reasons also encompass the Tribunal’s reasoning for the awards made.