Miss M Wilson v Tiger Curry House Ltd T/a Purple Rooms Hotel: 2404919/2019
EMPLOYMENT TRIBUNALS
Case No 2404919/2019
Between
Miss M WilsonClaimantTiger Curry House Ltd t/a Purple Rooms HotelRespondentDate 6 November 2020
JUDGMENT
The response is struck out.
REASONS
[1]By a letter dated 19 September 2019 the Tribunal gave the respondent an opportunity to make representations or to request a hearing, as to why the response should not be struck out because it has not been actively pursued, in that the respondent failed to attend the Preliminary Hearing on 19 September 2019 without informing the Tribunal that it was not able to do so.[2]The respondent has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The response is, therefore, struck out.[3]The respondent will be entitled to notice of any hearings and decisions of the Tribunal but will only be entitled to participate in any hearing to the extent permitted by the Employment Judge.[1]This judgment on remedy follows a judgment on liability issued under rule 21 of the Employment Tribunals Rules of Procedure 2013 and sent to the parties on 27 August 2020. I found two complaints to be well founded: a complaint of unfavourable treatment because of pregnancy, contrary to sections 18 and 39 Equality Act 2010, and a complaint of unauthorised deduction from wages, by not paying the claimant her full wages after 23 January 2019 up to the time she went on maternity leave and then by not paying the claimant statutory maternity pay. The unauthorised deduction from wages claim relates to the period 23 January 2019 to 1 June 2020 (having allowed an application to amend the claim to include a period up to the date of that application, being 1 June 2020).[2]The claimant has provided further information relevant to remedy, in an email statement and various documents which I have considered.[3]I will deal with remedy for each of the complaints in turn, starting with the unfavourable treatment because of pregnancy. Unfavourable treatment because of pregnancy Further findings of fact[4]The claimant suffered considerable worry about not being able to pay credit card bills, general bills and rent, because of not being given hours to work after 23 January 2019 and, therefore, not being paid and because of not being paid statutory maternity pay, which appears also to be a result of not being given hours to work after 23 January 2019. The claimant and her partner had one child already and another expected, and then born on 26 August 2019. The family relied on the claimant’s income, in addition to that of her partner, to pay their normal financial outgoings. The claimant’s partner’s income of £1300 per month was not enough to cover these outgoings. The claimant resorted to borrowing money from family members to pay bills. The claimant’s sister paid for her food shopping for some weeks and her mother made them hot meals since they could not afford to eat as they normally would have done with two incomes. They could not afford to pay for their gas and electricity for some weeks.[5]The claimant, on the advice of the Citizens’ Advice Bureau, made an application for universal credit which was granted but the claimant subsequently was investigated by DWP because of receiving these benefits when still employed, after HMRC paid the claimant statutory maternity pay when the second respondent declined to do so. The claimant was ordered to repay universal credit, receiving a letter saying they owed £2379.83. The claimant is still paying this off.[6]The claimant had placed a deposit of £72 on her dream pram when she discovered she was pregnant, and before the act of discrimination. When her income stopped, because of the act of discrimination, she was unable to keep up the repayments and suffered the financial loss of the deposit as well as the disappointment of not being able to get the pram she wanted. Instead, she borrowed money from her family to buy a second hand pram.[7]Shortly before the baby was born, the claimant and her family had to move house since the house they were renting was infested with rats. If the claimant had been working and receiving pay, they could have paid the first month’s rent and deposit themselves, but they had to borrow the £1200 required from a family member.[8]The claimant has felt a burden to her partner as he was the only one providing an income to the family.[9]At Christmas, the claimant’s family was put forward by their health visitor to receive money for presents for the children. This adversely affected the claimant’s confidence and self esteem.[10]The claimant has not been able to take her children on days out, because of lack of money.[11]The claimant has not been able to pay off her credit card balance and made an arrangement with her credit card provider in June 2019 to pay off the balance of £508 at the rate of £5 per month, with an interest rate of 0.5%.[12]The claimant has suffered with depression and anxiety due to the situation, being put on anti-depressants and anxiety medication by her GP.
The Law
[13]Section 124(6) of the Equality Act 2010 provides that the amount of compensation which may be awarded for a breach of the Equality Act in relation to work is “the amount which could be awarded by a county court…under section 119”. Section 119 provides that the county court has power to grant any remedy which could be granted by the High Court in proceedings in tort and section 119(4) provides: “an award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis)”. The aim of damages in tort is to put the claimant in the position they would have been in, had the act of discrimination not occurred. Compensation (with the possible exception of exemplary damages which may be relevant in rare cases) is to compensate for loss caused by the act of discrimination. There is no limit on compensation for discrimination.[14]In relation to compensation for injury to feeling, I have regard to the guidelines in Vento v Chief Constable of West Yorkshire Police (no.2) [2003] IRLR 102. I note, in particular, the guidance that awards are compensatory and not punitive. Vento sets out the bands that we must consider.[15]Presidential Guidance, issued by the President of the Employment Tribunals in England and Wales and the President of the Employment Tribunals in Scotland, on 5 September 2017 and later addendums set out bands revised to take account of subsequent developments.[16]In accordance with the Presidential Guidance applicable to when this claim was presented (23 April 2019), the top band is normally £26,300 to £44,000. This is to be said for the most serious cases such as where there is a lengthy campaign of discriminatory harassment. The middle band is £8,800 to £26,300, described as used for serious cases which do not merit an award in the highest band. The lower band is between £900 to £8,800. This is for less serious cases such as where the act of discrimination is an isolated or one-off occurrence.[17]Interest may be awarded on awards made in discrimination cases in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The interest rate for claims presented on or after 29 July 2013 is 8%. Conclusions on remedy for unfavourable treatment because of pregnancy[18]The claimant suffered injury to feelings and financial loss because of the act of discrimination. The financial loss suffered is the same as the amount of wages unlawfully deducted and consequential loss, which I deal with below. I do not, therefore, make any award of compensation for financial loss suffered because of the act of discrimination.[19]The claimant has clearly suffered injury to feelings because of the act of discrimination. She has suffered worry, anxiety and depression, particularly because of the financial difficulties she has endured, as outlined in my further findings of fact. She suffered this injury over a sustained period from January 2019 up to presentation of this claim and beyond. She is still suffering from the financial consequences of the respondents’ failure to provide her with hours of work. The respondents’ actions left her in a very difficult situation, without income and not knowing whether or not she was still employed. She was without income for a substantial period before the start of maternity leave and only received her maternity pay after a delay, from HMRC, rather than receiving it from her employer in a timely fashion. The complications of her situation caused her to make a claim for universal credit which she has had to repay.[20]I conclude that this is a serious case of injury to feelings, falling within the middle Vento band. I consider that the appropriate level of compensation to be in the lower half of the middle band and conclude that £12,000 is an appropriate level of compensation for injury to feelings.[21]Interest should be awarded on this in the normal way from the date of the act of discrimination until the calculation date (6 November 2020). The act of discrimination of not giving the claimant hours to work started on 24 January 2019 but carried on over a period until the claimant went on maternity leave on 19 August 2019. I, therefore, consider it appropriate to take the date to start interest at the mid point of those two dates i.e. 8 May 2019. 8 May 2019 to 6 November 2020 is 549 days.[22]The calculation of interest is as follows: 8/100 x 549/365 x £12,000 = £1,443.95. Unauthorised deduction from wages Further findings of fact[23]The claimant was contracted to work 32 hours a week on hourly pay of £8.03, making her gross weekly pay £256.96.[24]Her maternity leave began on 19 August 2019.[25]During maternity leave, she should have been paid statutory maternity pay for the first 6 weeks at the rate of 90% of her weekly earnings i.e. £231.26 per week. After the first 6 weeks, she should have been paid for a further 33 weeks at the rate of £148.68 per week. The paid period of statutory maternity leave ended on 6 April 2020.[26]The claimant was entitled to take up to 52 weeks maternity leave, although any leave after the first 39 weeks would be unpaid.[27]The claimant’s complaint of unauthorised deduction from wages for which this judgment is providing a remedy goes up to 1 June 2020. There is no evidence that the claimant had sought to return to work from maternity leave before 1 June 2020. I find, therefore, that the claimant was on unpaid maternity leave in the period 7 April 2020 to 1 June 2020. Calculation of wages unlawfully deducted[28]The wages unlawfully deducted in respect of the period prior to maternity leave are as follows: 24 January 2019 to 18 August 2019 (29.57 weeks) – 29.57 x £256.96 = £7598.30[29]It appears, from the claimant’s statement, that HMRC has paid the claimant her statutory maternity pay, after the second respondent refused to pay it. The claimant will not be entitled to receive her statutory maternity pay twice. I have, therefore, ordered the second respondent to pay to the claimant only the wages unlawfully deducted prior to the start of her maternity leave. It will be a matter for HMRC to seek to recover from the second respondent the amount of statutory maternity pay paid to the claimant by HMRC but which should have been paid by the second respondent. Consequential financial loss[30]Section 24(2) of the Employment Rights Act 1996 provides that, where a Tribunal makes a declaration that there has been an unauthorised deduction from wages, the Tribunal may order the employer to pay to the worker such amount as the Tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by the worker which is attributable to the unauthorised deduction from wages.[31]The claimant suffered considerable financial hardship because of the failure to pay wages, detailed in the further findings of fact relating to unfavourable treatment because of pregnancy. For the most part, borrowings were from family members and the claimant has not given evidence that any interest was charged on these borrowings. In relation to amounts borrowed from family, therefore, there is no financial loss attributable to the unauthorised deductions from wages.[32]The claimant was unable to make her normal payments on her credit card when she was not paid. A letter from her credit card provider shows that the claimant contacted them about her financial situation and an arrangement was offered on 3 June 2019 to pay off the debt at £5 per month and to reduce the interest rate payable to 0.5% for the duration of the plan. I note from the account summary on a statement dated 3 June 2019, that the balance was then £508.18. It appears to me more likely than not that the claimant has incurred financial charges relating to her credit card that she would not have incurred if she had been paid her wages and then statutory maternity pay. The claimant has not calculated how much this is and I am unable to do so with any accuracy from the information provided. However, I consider that a reasonable estimate would be 0.5% of £508 for one year, being the amount of interest being charged on the debt under the payment plan. This is £2.54.[33]The claimant lost a deposit of £72 on a pram. I conclude that this was financial loss sustained by the claimant which is attributable to the unauthorised deduction from wages.[34]I, therefore, conclude that there was consequential financial loss of £74.54 and order the second respondent to pay this amount.