Miss K Paczkowska v R-Com Consulting Ltd: 2405428/2016

EMPLOYMENT TRIBUNALS

Case No 2405428/2016

Between

Miss K PaczkowskaClaimant

R-Com Consulting LtdRespondent

Before

Employment Judge Holmes

Not represented for claimant

Date 15 December 2023

JUDGMENT

It is the unanimous judgment of the Tribunal that , the claimant having failed to attend the Tribunal to pursue her claims, her claims are struck out pursuant to Rule 47 of the 2013 Rules of Procedure.

REASONS

Introduction

[1]The Tribunal has convened this morning to hear the claimant's claims of sex and race discrimination, which have been listed for some considerable time, for three days. There has been considerable case management of these claims, and considerable correspondence between the claimant, who is unrepresented, and has been throughout in these claims, and the Tribunal, and the respondents dealing with many matters. The claimant however this morning has not attended or been represented, but by an email timed at 9.39 has written to the Tribunal in these terms "Please note the Claimant will not attend the Hearing due to various reasons (ill health unresolved Case Management Orders, other matters) pending Employment Tribunal responses. Respondent has been copied in the correspondence" That is all the claimant has written, and she has not attended.

[2]The respondents have attended and have been represented by Mr Warnes this morning. His application on behalf of the respondents is that the Tribunal dismiss the claimant's claims. He invites the Tribunal to do so on two potential bases, one is, as it were, on the merits, that the Tribunal should effectively determine the claimant's claims, all of which, he submits, are cases where the burden of proof would be upon the claimant which she must automatically fail to discharge by reason of her absence before the Tribunal . Consequently he seeks a determination of the claims on that basis, or ,alternatively pursuant to Rule 47 of the 2013 Rules which entitles a Tribunal to dismiss a claim if a party fails to attend or be represented at a hearing.

[3]In terms of the former course, the basis upon which Mr Warnes advances that is that this would be at least a determination of the claims in which various allegations are made against a particular individual in the respondent's organisation, who is not , however, a named respondent but against whom allegations of sexual harassment have been made . Mr Warnes' application for a determination, as it were, on the merits is made with the purpose, in part, of vindicating that individual and removing any allegations of sexual harassment made against him. The alternative basis, of course, would not involve any such consideration, but would simply be under Rule 47. The preference is for the former course, but either way the respondent's application is that the claim be dismissed.

[4]In terms of which approach to take, whilst appreciating the motivation and purpose of Mr Warnes' primary application, the Tribunal finds that somewhat unsatisfactory. If the Tribunal were to be invited to consider the matter to some extent on the merits, that would involve a consideration, at least on paper, of the evidence advanced that has been exchanged, and potentially before the Tribunal in written form, and then the determination on the merits on that basis, albeit that Mr Warnes' submissions are that even on the evidence as it stands the claimant would fall at the first hurdle, in terms of the burden of proof being upon her. But any such judgment would be likely to recite the allegations, and indeed the findings then made, even to dismiss them.

[5]In terms of the position of the individual referred to, as observed, he is not a named respondent, and if the Tribunal were to determine the matter as Mr Warnes initially proposes it may be difficult to avoid doing so, because the Tribunal would have to recite at least the allegations, and its findings on that basis. So to that extent the consideration of the claims of the sort that is initially proposed would be difficult for the Tribunal to consider, without it at least considering the evidence, reading it and then making some findings, and indeed giving a judgment in which it explained why the claims were dismissed on the merits.

[6]That rather reinforces the Tribunal's view that a more appropriate approach is to act under Rule 47, which is very clear that if a party fails to attend or be represented at a hearing the Tribunal may dismiss the claim, or proceed with the hearing in the absence of that party, effectively what Mr Warnes asked it to do. Before doing so , the rule provides that it shall consider any information which is available to it after making any enquiries that may be practicable about the reasons for the party’s absence. In relation to the reasons for the party’s absence, that party being the claimant, those reasons are set out in her email of this morning. They are quite clear, she mentions ill health, but does not specify anything in particular, and does not specify that any health condition is what is precluding her attending the Tribunal. No medical evidence is adduced, and she has not sought in this email any postponement, but has simply baldly stated that she will not attend. In terms of “unresolved case management orders” as being one of the reasons for that, it is right that she has extant applications to amend, the most recent of which was dealt with by the Regional Employment Judge by letter of 27th July 2017, in which he directed that all case management issues, including her application to amend dated 6th July 2017, would be considered at the start of the hearing. So in terms of those issues, the claimant was informed that they remained live applications that could be dealt with, and would have been dealt with today.

[7]For whatever reason, the claimant has declined to attend, and this is the only information she has given the Tribunal. The Tribunal does not consider in those circumstances that it needs to make any further enquiries about the reasons for her absence, she has given them to the Tribunal and in those circumstances, particularly in the light of the application by the respondents who have attended, and are prepared to deal with these claims as listed, the Tribunal sees no reason why it should not exercise its powers under Rule 47, and it does so to dismiss the claimant's claims pursuant to that rule.

[1]The Tribunal convened to hear the claimant’s application for reconsideration of its judgment of 2 August 2017 whereby her claim was struck out pursuant to rule 47 by reason of her non attendance on the hearing date. The respondent intimated an application for costs arising therefrom, and the Tribunal has directed that that application also be dealt with in this hearing.

[2]The claimant attended, and an interpreter had been arranged for her. In due course, however, the claimant confirmed that she did not need the services of the interpreter and, if anything, found it more confusing to try to concentrate on two languages being used and was confident that she could conduct the hearing in English. Consequently the interpreter was released.

[3]Whilst the claimant attended, there was no attendance or representation on behalf of the respondent. This was the case at 10.00am, and by 10.15am, approximately, the Tribunal made enquiries of the respondent’s representative as to why there may be no attendance on its behalf. Mr Warnes of Peninsula is the representative whom the Tribunal was expecting, and who appeared for the respondent at the hearing in August 2017. Consequently the Tribunal contacted him and the respondent’s representative’s office, to enquire why it was that the respondent was not represented at the hearing. The information received in reply was to the effect that the respondent’s representative was under the impression that the Tribunal had postponed this hearing. This was said to have occurred by telephone, and there was a suggestion that there was some written confirmation of this postponement. The Tribunal file, however, reveals no such postponement, and the Tribunal clearly did not postpone this hearing. The respondent’s representative, however, is under the impression that it had done so. Quite how this came about was unclear, and doubtless the respondent will in due course provide the Tribunal with any written communication in which a postponement had been indicated, or, if this is not the case and there has been some confusion, any evidence in support of the contention that the respondent’s representative made some error in relation to the listing of the reconsideration hearing.

[4]The Tribunal considered whether the hearing could proceed if, for example, Mr Warnes could attend, say by 12 noon, so that at least the claimant's application for reconsideration could be heard. It transpired, however, that Mr Warnes was in the Birmingham area, and it seemed unlikely by that time that he would be able to attend the Tribunal, with the file which is presently in the representative’s office, and to be able properly to represent the respondent on the reconsideration application. Mr Warnes did offer to participate in a preliminary hearing by telephone to discuss the matter, but given that he would not have the file or access to any communications received in the representative’s office, it seemed rather pointless to conduct that preliminary hearing at this stage and the Tribunal therefore reconvened with the claimant to explain to her the position, and to invite her to make any application to the Tribunal as to how she wished the matter to proceed.

[5]The claimant was understandably concerned that there may be a further postponement, pointing out that it had taken some four months from the original hearing to get this reconsideration hearing listed. Furthermore, the claims that she wishes to make go back over 12 months now and she is most anxious not to have to keep on revisiting these matters. The Employment Judge did point out to her that she could apply for the Tribunal to proceed in the absence of the respondent, but that in those circumstances there was a high degree of probability that they too would seek a reconsideration, and that application would also have to be considered further with ensuing delay. The claimant, very pragmatically in the Tribunal’s view and highly reasonably, concluded that it would be better to have this matter dealt with with both parties present, and , doubtless reluctantly , agreed that the matter should be postponed.

[6]In terms of the length of the postponement, the Tribunal wishes this matter to be relisted as soon as possible, and to that end has obtained the relisted date set out above. Whilst the respondent was not asked for any dates to avoid, it will be appreciated that , given this is likely to be the responsibility of the respondent or its representatives, the proposed postponed date is one which the Tribunal is most keen to retain, and consequently any application to vacate this date, notwithstanding that it has not been given on the basis of any dates to avoid being provided by the respondent, will only be considered favourably in the most extreme of circumstances. It is unclear as to whether the respondents themselves would be required to attend the hearing and unclear as to whether or not Mr Warnes would have required any representative from his client to be present in this hearing. It seems unlikely, however, that the respondents personally need to be present in the next hearing, and consequently if a representative on behalf of the respondent can attend the hearing on 9 January 2018, even if that is not the same representative, this is a date the Tribunal would wish to retain. Consequently the Tribunal will relist the hearing for 9 January 2018, and will only entertain an application made by the respondent to vacate that date in the most exceptional of circumstances.

[7]In the interim the Employment Judge pointed out to the claimant that the circumstances may be such that she would be entitled to seek a preparation time order in relation to her attendance and preparation for the hearing today. Further, in relation to the respondent’s costs application, whilst the claimant has made a witness statement in relation to the reconsideration application that she has made, she has not at present dealt with any financial position that may be relevant to the application for costs. The Employment Judge explained to her that it was entirely a matter for her as to whether she wished the Tribunal to take her financial position into account if an award of costs is made, but that if she did she should provide the respondent and the Tribunal with details of her means so that they can be taken into account in deciding whether, and if so in what sum, to make an award of costs.

[8]Consequently, with apologies to the claimant for a situation that was not of her making, the Tribunal does postpone the reconsideration and costs hearing and they will be relisted as set out above. POSTSCRIPT

[9]Since dictating the above the Employment Judge has had sight of a further file in claim number 2423424/2017, in which the claimant brings claims against D4 Digital Limited. In that claim the claimant seeks to make further claims against what is an associated company of the respondent in these claims. The respondent in that claim has not yet had to serve a response (although one is in fact due today) and consequently no representative is presently on record for it. The Tribunal listed a preliminary hearing in that claim for 11 December 2017 at 10.00am, the intention being that the Tribunal would consider issues arising in this further claim in the light of the claimant's application for reconsideration of her previous claim. This is why the Tribunal took the exceptional step of listing a preliminary hearing on the day that the response was due, rather than after the response had been received.

[10]By a letter sent to the Tribunal by email, on 15 November 2017 (it is unclear if this was copied to the respondent) the claimant sought a postponement of the preliminary hearing, stating as her reason that she had to attend the reconsideration hearing at the same time, and quoting the case reference number in these claims. She therefore applied for a postponement of the preliminary hearing. That application was considered by another Employment Judge, and not Employment Judge Holmes, who had given the original direction to list the preliminary hearing to be heard at the same time as the reconsideration hearing, and on that basis the Tribunal did order that the preliminary hearing fixed for 11 December 2017 should be postponed. The Tribunal did so in a letter dated 16 November 2017, in which reference was made solely to the new claim against D4 Digital Limited.

[11]Consequently the Tribunal postponed the preliminary hearing in the new claim, but did not postpone the reconsideration hearing. To the extent that the letter of 16 November 2017 made reference to any hearing, it did so in the singular, and not the plural, and was sent directly to the respondent (and not its representative in these proceedings) and was entitled solely in relation to the new claim. It appears that the respondent, acting in that claim in person, must have been in communication with the respondent’s representative in the other claim and informed the representative of the postponement of the preliminary hearing in the new claim. That appears to have been taken by the respondent’s representative as a postponement of both the reconsideration hearing and the preliminary hearing. That was clearly an error, and one which could have been avoided had the respondent’s representative, had there been any ambiguity or doubt about the meaning in effect of the Tribunal’s letter of 16 November 2017, made enquiries of the Tribunal as to whether the reconsideration hearing was also postponed, which it clearly was not. This, therefore, explains why the respondent’s representative may have been under the mistaken impression that the reconsideration hearing had been postponed. Clearly it had not, and the Tribunal has been obliged to grant the postponement that has been given today. Any further consequences of this state of affairs will be considered further by the Tribunal at the next hearing.

[12]For the avoidance of doubt, the Tribunal will also consider the new claim at the conclusion of the reconsideration hearing of the existing claim. To that extent the Tribunal proposes to combine the two claims, and the parties are invited to comment upon that combination within seven days of receipt of this judgment.

[1]The claimant brings her claims under the Equality Act 2010 based on the protected characteristics of race, sex and disability. The disability claim relates to a later incident only and we shall not consider the question of whether or not the claimant is a person with a disability until we have considered the factual allegation.

[2]The claimant gave evidence on her own behalf. The respondent called the evidence of Ms M Halliwell, Mr A Jackson, Ms S Dando, Ms Z Greenhalgh, Mr C Haresnape and Mr U Khan. There were two additional respondent witness statements presented by witnesses who did not attend. The hearing bundle contained in the region of 440 pages.

[3]At the start of the proceedings the claimant produced an opening statement, and, based on decisions taken at earlier preliminary hearings it was agreed that the Tribunal would deal with the allegations set out in that opening statement numbered 1-16 and 19-21 inclusive. The Tribunal did not allow allegations 17 and 18. The allegations that were allowed had been provided for on the basis of previous preliminary hearings.

[4]The claimant also had items 22 and 23 on her opening statement. These were not matters provided for by the previous preliminary hearings and were not allowed to proceed.

[5]At a further hearing on 11 July 2019 fixed by the Tribunal of its own motion it was decided that as a matter of law the respondent did not have vicarious liability for the actions of Susan Dando as she was not an employee or agent of the respondent, and that allegation 21 should be allowed to proceed as an allegation of victimisation under section 27 of the Equality Act 2010 as well as a claim in respect of direct discrimination under section 13.

Findings of Fact

[6]The claimant is a Polish national who has worked in the United Kingdom for some 14 years. She is educated to degree level.

[7]The respondent is an IT solutions, training and consultancy provider operating from Stockport. The claimant was employed as a Sales Support Coordinator from 10 May 2016. Her role required her to raise sales quotations from information supplied to her, and in addition she would have to input sales orders onto the order processing system. The claimant was managed by Ashley Jackson and she and he worked as a team of two people.

[8]The claimant alleges discrimination on the basis of race/sex on 27 April 2016, describing the incident as: “At the interview personal comments made towards my ethnicity, ‘your English is a little broken’ and ‘is your boyfriend also Polish?’.” The claimant was interviewed by the Managing Director, Mr Ajaz Rathore, and the Vendor Manager, Zarina Greenhalgh. According to the claimant the first part of the interview was with Mr Rathore by himself, and he is said to have told the claimant that her English was a little broken and he asked whether she had a Polish boyfriend. In cross examination the claimant said she found it offensive to be asked about speaking in broken English. She did not know if Mr Rathore asked all prospective employees such personal questions.

[9]The claimant alleges that on 11 May 2016 she was called “on the carpet” and treated harshly by the MD. According to the claimant, on the second day of her employment she was called in to Mr Rathore’s office and asked to close the door, and then in a ruthless manner he asked why she had left her laptop on her desk after leaving on the first day, explaining that there was a strict “clean desk” policy whilst admitting to his own OCD in cleanliness. The claimant admitted to not having been told about the policy otherwise her desk would have been left empty. Again, according to the claimant, she was asked why she was late and she said she was not late. She had taken her lunch to the kitchen. She was told she must sit at her desk at 8.30am and then go to the kitchen. In cross examination the claimant said that it was not her problem if someone was OCD. She was looking for her laptop on the second morning.

[10]Mr Rathore was not called to give evidence to the Tribunal in response to the two allegations which concerned him.

[11]This relates to race only. On 24 June 2016 there was post-Brexit questioning in a public open plan office about what was the claimant going to do? Residency/visa and passport?

[12]According to the claimant, on the day after the Referendum she was asked a series of questions by Zarina Greenhalgh and by her line manager in an open plan office where everyone could hear. The questions were: what was she going to do now, had she a British passport, would she need a work visa? The claimant considered this to be very intimidating, humiliating and insensitive as the Referendum result was a shock and a difficult situation for her to deal with on its own without people grilling her about it.

[13]The claimant was cross examined as to Ms Greenhalgh and when it was put to her that Ms Greenhalgh had not “grilled” her the claimant said that she had.

[14]As to Ms Greenhalgh, she remembered asking questions of the claimant although she could not remember precisely what the questions were. According to her she asked the questions out of friendly concern because she wanted to know that the claimant would be alright. This was part of general conversation in the round in the office with the claimant answering her questions and not seeming at all upset by them at the time. Ashely Jackson was also involved in the questioning.

[15]On 28 June 2016, according to the claimant by reason of her race, there was increased scrutiny and fault finding, targeting and finger pointing. She had been approached about an error by email from Ashley Jackson and Mr Rathore told her off about an error she made on one quote, which she based on a recommended retail price and not a list price, and this apparently lost the business money. Although the error was made on 7 June it was only brought up in a serious manner on 28 June which made the claimant feel as though she was being targeted suddenly following the Brexit vote.

[16]Looking at the email from Ashley Jackson sent on 28 June 2016 at 15:55 he told the claimant that he had just been in a meeting with Ajaz Rathore and it appeared that a renewal quote had been done by adding 2% to the recommended retail price not the price at which the goods were bought in, resulting in losing a £5,000 order that month. It went on: “You’ve been absolutely brilliant since you’ve joined and this is just one error out of the hundreds of quotes you’ve already done. I’m not having a go and I’m not annoyed, I’m not anything…Keep up the great work.”

[17]On 12 July 2016 by reason of race the claimant was told not to speak in Polish with a Polish colleague. There were only two Polish people in the organisation and the other one was leaving in three days. It was perfectly fine for them to talk in Polish prior to the Referendum.

[18]According to the claimant, she and her Polish colleague were called to a meeting room by Zarina Greenhalgh to be told off and not to speak Polish anymore in the office because Mr Rathore was angry.

[19]In cross examination the claimant confirmed she was asked not to speak Polish in the office, that it was fine before Brexit but not afterwards. She was not aware if the same comment had been made to those members of staff who spoke Urdu.

[20]Ms Greenhalgh does not deal with this matter in her witness statement but in cross examination she accepted she had asked the claimant not to speak Polish whilst on the shop floor because others felt intimidated. She did this of her own volition. There had been a previous similar incident with two colleagues who spoke Urdu and this made people feel uncomfortable. In the meeting with the claimant and the Polish colleague she said that she had had a previous conversation with the colleagues who spoke Urdu. It was nothing to do with Brexit. This was on the day when she saw the claimant talking Polish and as a senior member of the team she felt it appropriate to raise it with the claimant. She had not previously done anything about it when she had heard the claimant talking in Polish in the car park or in the kitchen, as this was done in private away from everyone else.

[21]In July 2016 according to the claimant Chris Haresnape said, “Brexit won’t happen soon enough and more people will be coming until then because Britain is where they can speak English and work” and “People come here expecting/having icing on the cake”.

[22]According to the claimant she was having a coffee and a cake when Mr Haresnape spoke to her alone, making the comments set out above.

[23]Mr Haresnape denies making any of the comments alleged against him by the claimant, and in cross examination he did not recall making such comments.

[24]On 10 August the claimant alleges discrimination on the basis of race and sex, with the MD, Mr Rathore, calling an unexpected meeting of the whole of the sales team because she and Ashley Jackson, the sales support team, did not do enough. The claimant felt that Mr Rathore directed at her the comment “who else has a problem with sales support?”. The claimant was physically “occluded” from speaking out and thought it was a little unfair.

[25]According to the claimant, underperforming sales managers spoke to Mr Rathore in a malicious manner to blame their lack of performance on the sales support team which, according to the claimant, was far from true as all emails had been dealt with properly and without error. Mr Rathore seemed to have accused the sales support team of not doing enough to support or help the sales managers whilst looking directly at the claimant.

[26]On 11 August the claimant was too upset to take part in office fun and games and she was the only one not taking part in the “office Olympics”. The “fun facts nobody knows about you” concerning the claimant were still used, to everyone’s amusement, even though the claimant had not involved herself in the office Olympics.

[27]According to the claimant, she refused to take part in the office Olympics that she had earlier been happy to take part in, having sent interesting facts about herself to the organiser. She was too upset to play and take part in what she referred to as “fake office fun and games” and she sat alone whilst the games were going on within the office. She asked for breaks within the time set aside for the games and it was agreed she could them, but the games times changed on a daily basis.

[28]On 1 September 2016 there was increased workload under pressure for D4 Digital Limited, a company working in the same offices. The claimant was asked to do a marketing and financial PowerPoint presentation and to draft employees’ commission terms and conditions for D4 Digital in a separate meeting room.

[29]According to the claimant, she was asked by Mr Rathore to create a PowerPoint presentation in an office that she could not leave, and it was for another company in which Mr Rathore had an interest not the respondent company. It was a recruitment company and the claimant has no recruitment experience. This led to enormous anxiety and stress for her.

[30]The first allegation of sexual harassment relates to 2 September 2016, a casual Friday, which involved sexual harassment by the line manager who “stared me down” sitting next to and in front of other male managers (inappropriate gaze).

[31]According to the claimant, it was a casual Friday and the lads on Fridays felt more free to allow banter. At one point Ashley Jackson, who was sitting next to her, “literally stared me down, looking into my eyes and then on my bottom and legs, which I am sure was visible to other man sitting behind. I flushed with embarrassment and anxiety and left to have a glass of water or compose myself to stay until the end of work”.

[32]According to Mr Jackson, he had never looked at the claimant in a sexual way. He had never looked at her bottom nor did he give her a dirty look. He believed he had always maintained a professional relationship with the claimant and as her manager it would have been totally inappropriate to have acted in the manner alleged.

[33]In cross examination he confirmed the content of his witness statement.

[34]On 9 September 2016 there was a further allegation of sexual harassment by the line manager, Ashley Jackson, who in a one-to-one meeting while giving the claimant distressing news of Zarina Greenhalgh leaving in a week stretched and showed his bare biceps whilst looking at the claimant for her reaction.

[35]According to the claimant, Ashley Jackson would be stretching inappropriately while they were alone. He was wearing a short-sleeved t-shirt on a casual Friday showing his biceps and holding them in a position where the biceps were stretched whilst looking at the claimant for her reaction. This was in a meeting where he had given the claimant unsettling and distressing news about Zarina Greenhalgh leaving in two weeks’ time.

[36]According to the claimant in cross examination it was not a natural stretch.

[37]Mr Jackson in his witness statement said he may sometimes stretch at his desk or put his hands on his head when concentrating or thinking, but that is what he does. He had never considered such behaviour to be harassing.

[38]According to Mr Jackson in cross examination he may have stretched as he did normally, but this was nothing to do with the claimant being female and Polish. From his perspective he did nothing that was degrading or humiliating or offensive towards the claimant.

[39]There is no date for this incident, which is said to be unspecified/throughout and to relate to sexual harassment.

[40]According to the claimant, Ashley Jackson said to her that she kept a small USB fan on her desk because he is so hot, and sitting next to him she needed to cool herself down, feeling attracted to him sitting so close to him. This amounted to sexual innuendo. There were never fans distributed as there was air conditioning in the office. The claimant suggests that this is inappropriate ambiguity (plausible deniability), comments and behaviour (eating ice creams, grapes or peeling tan, showing his knees). Sexist gestures by senior staff.

[41]According to the claimant, throughout his employment Ashley Jackson said to her that she keeps a fan on her desk because he is so hot and she is sitting next to him or that his tan is peeling off, touching his back, or announcing that he was in a hot tub on holiday in Croatia with his Spanish lover. There had been several inappropriate behaviours like showing his knees (taking his trousers up) or biceps. Eating grapes in a seductive manner and looking at the claimant which made her feel really uncomfortable. There was ice cream eating in the office along with other team members which if the claimant did not order an ice cream she was left feeling rather uncomfortable given the sexist banter and the often charged environment.

[42]According to Ashley Jackson concerning the fans, it was a hot day in the office and someone was going around asking if anyone would like a fan, and he said that he would, saying that he was hot. According to him, any reference to him being hot was simply due to the temperature in the room with there being no implication that he found himself to be handsome or attractive. According to Mr Jackson, what he said could not have been misunderstood by a female in any way.

[43]As to showing his knees, Mr Jackson accepts that he did roll up one trouser leg when talking to a colleague. Mr Jackson had undergone an operation for a ruptured anterior cruciate ligament some years previously and with a colleague he discussed the injury, the post-operative physiotherapy and how long it took to heal. When he was asked what his scar looked like he described it, and when the colleague asked him to show the scar he did. This involved showing his knee. This was confirmed in cross examination.

[44]As to eating ice creams, Mr Jackson said that when it was hot the boss would offer to buy anyone who wanted one an ice cream, “If a few of us in the office had ice creams they would eat them together”, but he described the way in which he ate his ice cream and the Tribunal saw nothing suggestive or lascivious in the way he would have eaten his ice cream. The claimant did not suggest that he ate it in anything other than a normal manner.

[45]As to grapes, Mr Jackson told us that he held the bunch above his head and bit individual grapes off the bunch before eating them.

[46]This is again an unspecified date and an allegation of sexual harassment, with the claimant feeling uncomfortable walking around the office (lads culture) or to the meeting room alone with Ashley Jackson out of concern lads may comment inappropriately.

[47]The claimant refers to having brought her own two large glasses to avoid walking the whole distance to the water cooler throughout the office. She felt embarrassed and that she was being watched when walking through the office.

[48]On 11 September 2016 the claimant complains of discrimination and harassment based on sex, where she says that she raised a sexual harassment grievance to the line manager. Senior management were aware of this for 3-4 days. It was not addressed, and this together with the surrounding circumstances caused the claimant to feel ill.

[49]On 11 September the claimant sent a text to her manager, Ashley Jackson, saying: “Sorry it came to that. Just wanted to give u a heads up how I feel. I was trying to send email on LinkedIn but couldn’t. So I just want to let u know that you have two strikes with me towards sexual harassment, the most recent one’s the dirty look you gave me on Fri, was it 2nd or 26th Jul don’t remember, and this Friday on oneto-one giving me shocking news, very unsettling, you decided to stretch and show your ‘guns’ out. Not a professional behaviour and completely out of place. This is at least I can recall not to mention other small things that make me uncomfortable. NOT PART OF YOUR HAREM MATE! I think you do seduce all girls in the office and show them in bad unprofessional light. Not sure what is allowed in Ajaz world but certainly this is not the office culture I like. Working in man dominated environment is difficult as it is for me and any other girl for that matter and there are laws to protect us. So please feel free to do what you feel like seducing woman and trick them to feel as if you are their soulmate making them lust for you. Keep me out of it. But then there is jealousy and sometimes I feel Zarina, Emma or Lauren who you messed their heads with want to bite my head off for just talking to you. I will be aiming to sit elsewhere if possible in near future as far as possible from you. One more encounter of any physical or seductive nature and I am raising formal complaint mate. Have some respect!”

[50]According to Mr Jackson, he was surprised to receive the text message which was sent in the early hours when Saturday night turned into Sunday morning. He forwarded it to Zarina Greenhalgh on the Sunday and they discussed it briefly on Monday morning because he was not sure what he should do. He wanted the opinion of Zarina Greenhalgh on whether she thought the claimant had even written the email because the language was very different from what he would have expected from her. He was in total shock when he got the message. He was convinced it was not from the claimant as he could not even begin to fathom where she had got the impression from. He genuinely could not believe he had received the message and was not sure the claimant was even the sender. He could not understand how these thoughts had entered her head. It was nonsensical.

[51]On Wednesday 14 September 2016 the claimant sent a written grievance to the company explaining that she would like to raise a grievance due to communication breakdown with the sales support manager, Ashley Jackson. The claimant then went on to explain matters. At interview she thought her line manager would be Zarina Greenhalgh but after she had signed her contract she was told that she would be managed by Ashley Jackson, who was aged 26 and who had been with the company for nine months. He had no managerial experience. She tried her best to work with him but there had been several misunderstandings and lack of communication. She raised a number of issues concerning the way in which she was managed and then went on to say she was conscious of his “looks” with reference to the fan, the peeling tan and being in a hot tub with his Spanish lover. She referred to alleged inappropriate behaviour involving showing his knees and/or biceps, stretching inappropriately and looking for her reaction, and saying to her things like “Kat, you will love me for that” while alone, giving her dirty looks on her bottom making her feel uncomfortable when sitting next to him. He was using a seductive voice and overall inappropriate sociability and unprofessional behaviour. She made clear several times she was in a long-term relationship and even texted him that she would be raising a formal complaint if the treatment did not stop, but this did not stop things.

[52]The claimant went on to describe more matters in the office and then said the office was fast paced and pressurised and while she could cope with that she would not be “having some bloke with excessive testosterone level to show me in a bad light and messing me up using all his widths instead of doing his job”. The claimant stated that all of the above had left her extremely anxious, drained/burned out and stressed out, and she would appreciate the company addressing the harassment immediately. She wanted to sit somewhere else and to report to someone else as far as possible from Ashley Jackson.

[53]On 15 September the company’s Training Manager, Ms Halliwell, wrote to the claimant to acknowledge receipt of her email, and said that she would hear her grievance on Friday 16 September.

[54]The claimant gives no evidence of anything occurring between 11 September when she sent her text to Mr Jackson and 14 September when she raised her grievance to the company in an email.

[55]The claimant was not able to attend the grievance meeting as she was off sick with health issues, but she sent a letter explaining matters in more detail. Due to serious health concerns she would prefer not to attend a grievance meeting and she asked for a decision in writing. She was told that the grievance would be investigated and a response would be sent.

[56]Ms Halliwell carried out her investigation with Chris Haresnape and she interviewed Ms Greenhalgh twice, Ms Crump, Ashley Jackson and Ajaz Rathore.

[57]Ms Halliwell wrote to the claimant on 21 September setting out the issues and concerns raised, detailing the persons she had interviewed and then she went on to set out her findings.

[58]As to the allegation that Ashley Jackson had behaved unprofessionally, lacked appreciation of her efforts and behaved in an unsocial manner, she could find no evidence he was unsociable towards the claimant. Mr Rathore’s comments in the sales meeting were directed at the sales team rather than the sales support team, and the comments may have been misinterpreted.

[59]As to unwanted sexual advances by Ashley Jackson, he had denied flirting with the claimant in any way. She was unable to find any evidence to support the allegations, having spoken to two people who sat close to them in the office who were unaware of any untoward behaviour. As to the email sent to Ashley Jackson on 11 September, he was shocked to receive it. Ashley Jackson told the enquiry that the claimant’s manner from the following Monday was to ignore him and unfortunately Ashley Jackson failed to raise the matter with the claimant before she went home sick on the following Wednesday.

[60]As to working in a male dominated environment, other female employees were interviewed and they had no issues and they even disputed that it was a male dominated environment.

[61]As to the company promoting or tolerating an environment of sexual harassment, they had asked female members of staff who said that whilst there may be the odd off comment about women generally there was definitely no general environment where sexual harassment was present.

[62]As to other members of staff attempting to take over the claimant's job, there was an apprentice who had recently started but no plan for her to take over the claimant's job.

[63]As to the claimant doing all the work whilst the manager was using the internet for personal matters harassing other female members of staff, it was explained to the claimant that Mr Jackson had other matters to deal with as well as processing orders so the claimant may have processed more orders than him, but there were no other complaints that he had been spending time on leisure activities and no evidence in support.

[64]It was the conclusion of Ms Halliwell that the claimant's grievance could not be substantiated. The claimant was given the right of appeal against this finding and did so by a letter on 27 September. The claimant felt that the investigation had not been carried out sufficiently thoroughly and she had not been given the benefit of the doubt. She set out her reasons for this and an appeal hearing was scheduled to take place on 3 October before a non-executive director. The claimant waived her right to attend the meeting due to health issues, and it was agreed that the appeal would take place in her absence following by a written response.

[65]The appeal outcome letter was sent to the claimant on 10 October, and the appeal officer went through each of the claimant’s grounds of appeal and having looked at all the issues could find no grounds to overturn the original decision regarding the grievance.

[66]This has an unspecified date and refers to unwanted conduct via emails from Ashley Jackson with comments like “you will love me for that”, “keeping me sweet”, “I will keep you calm” or “I will make things happen for you”.

[67]The claimant in cross examination has confirmed the complaint but has not been able to refer to any specific emails. There were none in the bundle.

[68]According to Ashley Jackson, he did not recall using words to the effect “you will love me for that” or saying that he would keep the claimant sweet, but according to him he uses the word “sweet” quite a lot and so he was sure he would have used that word plenty of times in her presence, albeit without the inference that the claimant took.

[69]On 1 June 2016 there was harassment on the basis of sex and/or race, with a comment by Ashley Jackson at an all male sales team meeting about a Russian woman at an IP Expo meeting in 2016. The comment was “did you get anywhere with her?” As she was Russian after all”.

[70]In her opening statement the claimant refers us to two pages in the bundle involving the interviews undertaken following her grievance. In the interview with Ashley Jackson it says: “Regarding the IP Expo comment, in a sales meeting Duncan asked who was going to the IP Expo in general not just AJ, he then stated that some of his contacts (Russian females) would be there and indicated they were attractive – apparently everyone laughed.”

[71]The claimant confirmed her evidence in cross examination.

[72]In his witness statement Ashley Jackson confirms that he did go to the IP Expo on 18 and 19 May 2016 but did not recall hearing anything said about Russian women. He knew that he did not make the comments alleged by the claimant.

[73]On an unspecified date there was a female employee who was a model, who was being made uncomfortable and the claimant was aware of lads’ comments about her. The company attempted to hire another model.

[74]According to the claimant, she discovered that Lauren Hibbert was a model recently, presumably meaning after she went on sick leave. The claimant does not specifically state that Lauren Hibbert felt uncomfortable. She says that Lauren Hibbert sat in a separate smaller office and avoided coming into the open plan office and would not come to sit next to the claimant in the main office. She sensed male colleagues glancing at Lauren Hibbert when she passed through the office and they made sounds, but the claimant does not indicate what comments or sounds were made.

[75]In a letter sent as part of the claimant's grievance the claimant referred to one of the first sales meetings she attended when Ashley Jackson made a comment about some woman talking to Duncan on IP Expo 2016, “that shouldn’t have been too difficult to ‘get anywhere with her’, as she was Russian after all. Everybody (not me) laughed. Also comment of one of senior managers made to Ashley Jackson (end August) that he can start stalking this girl now who was supposed to start working at R-Com (ex model) giving him her name”.

[76]On 29 June the claimant claimed harassment based on race, sex and disability, with reference to an email from Sue Dando to the claimant. The claimant was given leave to add this claim, which arose after the ET1 had been submitted, at a preliminary hearing. According to the Employment Judge’s note it is alleged that the claimant was described in derogatory terms for bringing the first case. The claimant alleges that the email discriminated against her on the grounds of her sex, race and disability. The claimant alleges direct discrimination and harassment. She was off work on sickness absence when the email was sent and remained so. At the same time leave was granted to include item 21.

[77]On Thursday 29 June 2017 at 11:15 Sue Dando@D4 Digital wrote: “Kat, I am absolutely disgusted to learn of your ridiculous accusations against R-Com. I have recruited for R-Com for over five years and set up D4 Digital with Ajaz 2½ years ago as I got to know him on a professional and personal level and found him to be the most genuine, honest businessman I have met and saw the opportunity to set up a recruitment business with him, a fantastic one, as we could make it a more personable, value led business than other recruiters out there. For you to accuse R-Com of being racist is absurd, it’s the most multicultural business I have ever worked with, then for you to add sexual harassment to your obvious quest for money is even more absurd. Ash Jackson is younger than you, more professional than you, and all the females in the office, including myself, don’t have a problem with him and never have. I have heard first-hand off Courtney, the apprentice you use to walk with at lunchtime, that you fancied Ash Jackson and used to tell her so. Your accusations are obviously completely unfounded and I would have happily stand up in court and tell them how ridiculous all of your accusations are. You are clearly taking advantage of the system and happily getting paid for sitting at home making up these ridiculous claims. I am so disappointed you are conducting yourself in this manner. I feel to blame for recruiting you into R-Com in the first place. I asked your previous employers for references and they would only confirm dates of employment, they wouldn’t give any personal details, now I know why.”

[78]The email is signed “Sue” described thereafter as “Sue Dando, Group Sales Director”. The email is sent from D4 Digital and not from R-Com Consulting Limited. The claimant replied to it on 29 June 2017 saying that what Sue Dando had said was not true. Ms Dando shortly thereafter responded to the claimant, accusing her of being delusional.

[79]On 26 April 2016, in the course of recruiting the claimant, Sue Dando, using the same D4 Digital email job title and address, wrote to the claimant to confirm her interview with R-Com Consulting on Wednesday 27 April. She would be interviewed by Ajaz Rathore, Managing Director.

[80]D4 Digital shared the same office space as R-Com Consulting Limited, with Sue Dando working in the same room as the claimant albeit on the other side of it.

[81]According to Ms Dando, she is the Group Sales Director at D4 Digital – a company partially owned by Mr Ajaz Rathore along with R-Com Consulting. She was made aware that the claimant had brought a claim to the Employment Tribunal around 29 June 2017 when she was asked for information for the Tribunal hearing. On becoming aware of the claimant's allegations she was totally shocked and angry, having worked alongside R-Com in the same building in the same office for 2½ years. She had placed various employees with the company and had joined them for nights out etc. She was wound up by what she considered to be baseless allegations and felt the need to email the claimant to outline her disgust.

[82]In cross examination she confirmed she agreed with everything set out in her email.

[83]In questions from the Tribunal it was established that R-Com and D4 Digital were sister companies. Ajaz Rathore had helped her to set up a recruitment company but there was no direct relationship with R-Com. She had been asked to recruit someone. She found the claimant's name on a jobsite. She called her and then shortlisted the claimant and others. The claimant was a very strong candidate.

[84]The final allegation relates to 19 and 27 October 2017 when there was a failure to provide references for the claimant. This allegation had been allowed to proceed at an earlier hearing as direct disability discrimination. This Tribunal decided to allow it to proceed in addition as an allegation of victimisation.

[85]In October 2017 the claimant applied for a post as a sessional support worker with Independent Options and an HR assistant at Independent Options sent an email to Accounts at R-Com and to Grace Lyons at R-Com asking if they would complete the enclosed reference request form.

[86]On 27 October a further email was sent just to Grace Lyons at R-Com, wondering if she was in a position to complete the reference so that the claimant's job application could be progressed.

[87]In the absence of any response to these requests the claimant was sent a letter from Independent Options on 14 November regretting to tell her that they were unable to offer the position of support worker as they had not been able to obtain satisfactory references. They had tried to obtain a reference from the various different employers the claimant provided them with but the reference requests were unsuccessful.

[88]Grace Lyons was one of the people who provided a witness statement but who did not attend for cross examination. She confirmed that a reference request was received in respect of the claimant. Although she did not know the claimant she was aware that the claimant was an employee because she was on the payroll. She told Ms Halliwell that it had been received, but then did nothing further. When the second email came she again told Ms Halliwell but did nothing more.

[89]According to the witness statement of Michelle Halliwell, Grace Lyons did tell her of the reference request on or around 19 October but because the claimant was still an employee and was sending in sick notes saying she was not fit to work the request came as a surprise. She did not want the company to say anything negative about the claimant in a reference and felt that anything that would have been said could have been the wrong thing that would have exacerbated the situation. The thought of providing a factual reference was not something that crossed her mind at all, therefore she decided the company should not reply to it at all. Her thoughts remained the same when the second email came requesting it.

[90]In cross examination she said that she did not refuse to provide a reference, it was “passively refused”.

[91]Ms Halliwell confirmed that she did know the details of the claimant’s grievance and its outcome. She was disgusted and shocked personally about what was in the grievance but on a professional level she did what she needed to do in terms of responding to it and arranging for the appeal. The refusal to give the reference was nothing to do with the grievance. She did not give it as she did not want to say anything that could be misconstrued, not being aware that just a factual reference giving employment dates could be given. She was concerned that if she gave a reference it could have repercussions if she said that the claimant had been employed for 2.5 years when she had in fact been off sick for two years. She did not think she needed to consult with anyone else at the company about the reference request. She did not consider that she was biased when she decided not to give the reference.

[92]Ms Halliwell gave further evidence to the Tribunal on 11 July 2019, following the amendment, culminating in “if there were no outstanding issues I would have provided a full reference”. Submissions

[93]The claimant’s submissions commenced with reference to a House of Commons report on sexual harassment in the workplace ordered to be printed on 18 July 2018 and published on 25 July 2018 by authority of the House of Commons. This report noted that throughout the world of work, in spite of the law, sexual harassment was an everyday common occurrence creating a crushing burden on employees. At paragraph 105: “A toxic organisational culture or poor management practices have the potential to make sexual harassment, along with other types of workplace discrimination, more prevalent.”

[94]The claimant then went on to make reference to the leading cases in discrimination law and then she moved on to the facts culminating in her confirming to the Tribunal that she was happy with things at work, earning sufficient money for her needs and she would not have left had it not been for the matters which were the subject of her claim before the Employment Tribunal.

[95]For the respondent Ms Halsall went through the allegations from a factual perspective without reference to matters of law. The claimant responded to Ms Halsall’s submissions.

The Relevant Law

[96]All of the claimant's claims are brought under the Equality Act 2010 and the relevant sections are set out below.

[97]Section 6 – Disability:(1) A person (P) has a disability if – (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability.

(3) In relation to the protected characteristic of disability – (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.

(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section) – (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.

[98]Section 13 – Direct Discrimination:(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.

(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.

(4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner.

(5) If the protected characteristic is race, less favourable treatment includes segregating B from others.

(6) If the protected characteristic is sex – (a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding; (b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.

(7) Subsection (6)(a) does not apply for the purposes of Part 5 (work).

(8) This section is subject to sections 17(6) and 18(7).

[99]Section 26 – Harassment:(1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) A also harasses B if – (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).

(3) A also harasses B if – (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

(5) The relevant protected characteristics are – age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.

[100]Section 27 – Victimisation:(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act - (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[101]Section 40 – Employees and Applicants: Harassment (1) An employer (A) must not, in relation to employment by A, harass a person (B) – (a) who is an employee of A’s; (b) who has applied to A for employment.

[102]Section 123 – Time Limits(1) [Subject to section 140A] Proceedings on a complaint within section 120 may not be brought after the end of – (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of – (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something – (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[103]Section 136 – Burden of Proof:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision”.

Discussion and Conclusions

[104]This is pleaded as harassment and direct discrimination on the ground of race and/or sex but it was in the claimant’s job interview on 27 April 2016 and so must come under section 40 of the Equality Act 2010 which provides for claims of harassment to be brought by job applicants.

[105]Given that Mr Rathore has not given evidence we must accept the claimant's evidence that the comment was made and that the question was asked. We cannot speculate as to whether Mr Rathore had the purpose of harassing the claimant during the interview but as to the effect we know that the claimant was offered the job and that she accepted it notwithstanding her evidence that she found Mr Rathore’s conduct to be offensive.

[106]The comment and the question, in our judgment, amounted to harassment related to the protected characteristics of race and sex but as the allegation relates to 27 April 2016 and the claim was made on 3 December 2016 the Tribunal will have to consider whether the claim is in time when we have reached our conclusions on the other allegations.

[107]As regards allegation 2, again we had the claimant's evidence not contradicted by any evidence of the Managing Director who was not called. On the claimant's evidence alone we find that any less favourable treatment was because the Managing Director was motivated by his own OCD and not because of the claimant's race or sex. This allegation is dismissed.

[108]With respect to allegation 3, it is pleaded as direct race discrimination. There clearly was some questioning of the claimant following the Brexit Referendum.

[109]There is no comparator pleaded. A hypothetical comparator might be a citizen of a different European Community country such as Bulgaria. In our judgment, on the day after the Referendum in many offices people of all EU nationalities would have been asked how they might be affected by the outcome of the Referendum. The questions asked of the claimant appear to have been asked in a friendly rather than a hostile manner showing concern for the claimant. We do not find that her treatment was less favourable than a hypothetical comparator would have been treated. This allegation is dismissed.

[110]This allegation is pleaded as direct race discrimination and is that the claimant was subjected to increased scrutiny and fault-finding, targeting and finger pointing. The allegation seems to be that the claimant was sent an email by her manager about an error she had made with which coincidentally pointed out to her on 28 June. We are satisfied that the treatment of the claimant was because of the error that had been discovered and not because of her protected characteristic of race. This allegation is dismissed.

[111]This is the allegation that the claimant was told not to speak Polish with a Polish colleague when it was perfectly fine prior to the Referendum. The evidence is that as well as employees speaking Polish the respondent employed people who spoke Urdu, and that the Urdu comparators were treated the same as the claimant and the Polish colleague. The company appears to be content with people who speak the same language talking together in their own language in private but not on the shop floor. We find that the Polish speakers and the speakers of Urdu, the actual comparators, were treated the same, thus in our judgment the claimant was not treated less favourably than the comparators because of her race. This allegation is dismissed.

[112]The allegation here refers to statements allegedly made by Chris Haresnape who denied making them. There was no-one else present. Given the evidence and the lack of anything to corroborate either side’s version of events we cannot be satisfied that the statements were made. This allegation is dismissed.

[113]This allegation relates to comments of the MD concerning a problem with the sales support team. Looking at the evidence we find that the comment was made against the members of the sales support team team and was not a derogatory comment specifically against the claimant. As the comment was against the sales support team, consisting of the claimant and her manager, and not just against the claimant in our judgment it did not amount to less favourable treatment of the claimant because of either race or sex given that the claimant’s sales support team colleague, to whom the comment was also made was a British man. This allegation is dismissed.

[114]The claimant may have been too upset to take part in office fun and games but the claimant has not in our judgment in any way related this upset to her race and/or her sex. She reached a conclusion not to take part having provided information about herself. We have no evidence as to who brought the information out or the context in which it was done. We are unable to find that this involved less favourable treatment of the claimant for reasons related to her race or sex. This allegation is dismissed.

[115]This allegation relates to an increased workload. We conclude that the claimant was asked to do more because the respondent found her to be competent in dealing with such matters. We do not find that a request to do more work, even for the separate company D4 Digital, was because of or in any way related to the claimant’s race or her sex. This allegation is dismissed.

[116]This allegation alleges harassment by the manager staring at the claimant with an inappropriate gaze. The allegation is denied. We are not satisfied on the uncorroborated evidence that the claimant’s manager, Ashley Jackson, behaved in this manner. This allegation is dismissed.

[117]This allegation of harassment, related to the protected characteristic of sex, involves Mr Jackson stretching and showing his bare biceps whilst looking to the claimant for a reaction. Whilst Mr Jackson may well have stretched and shown his bare biceps we do not find that when so doing he had the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. If the claimant did have such feelings then taking into account the perception of the claimant and the other circumstances of the case, principally Mr Jackson being dressed in a t-shirt on a dress down Friday and stretching his arms, we would not consider it reasonable for his conduct to have had such an effect on the claimant. This allegation is dismissed.

[118]As to allegation 12, we prefer the evidence of Mr Jackson with regard to the question of being “hot”. We do not find that he ate an ice cream in anything other than a normal manner, and that he did so in company with other colleagues. We do not find that his eating of grapes or any reference to a peeling tan amounted to harassing conduct, and we accept the reason why he showed one of his knees to a colleague.

[119]We find that there was no purpose to harass the claimant in respect of any of these actions and again, in the circumstances described, we would not consider it reasonable for the claimant to have felt harassed by this conduct. We have not had any evidence as to alleged sexist gestures by senior staff. This allegation is dismissed.

[120]This allegation is that that the claimant felt uncomfortable walking around the office or to a meeting room, with concern that lads may comment inappropriately. We are not satisfied that the claimant has provided any evidence as to such comments being made or that in the circumstances it was reasonable for the claimant to feel uncomfortable. This allegation is dismissed.

[121]This allegation is that the claimant raised a sexual harassment grievance to her line manager on 11 September 2016 and it was not addressed for 3-4 days, causing her to fall ill. As a matter of fact, the claimant sent a text to her line manager. We have set it out in full above. In our judgment the claimant’s text was not a grievance. Our finding that the text was not a grievance is consistent with the claimant raising a formal grievance on 14 September to which she got an immediate response and timely arrangements were made to hear the grievance and to deal with it. This allegation is dismissed.

[122]This allegation alleges unwanted conduct via emails from Ashley Jackson. We have not been provided with any emails, thus we are unable to find that this conduct occurred. This allegation is dismissed.

[123]This allegation relates to comments concerning Russian women.

[124]Whilst not being satisfied as to the exact words used, we cannot be satisfied that there was any intention on the part of Mr Jackson to harass the claimant, and looking at the claimant's perception and the other circumstances we do not consider it reasonable for a comment made about an unknown Russian third party to have amounted to harassing the claimant. This allegation is dismissed.

[125]This allegation is of harassment on the basis of sex in relation to another employee and comments being made about her, and her being made to feel uncomfortable. The evidence we have set out above does not support any finding that the fellow employee was made to feel uncomfortable or that any sexist comments were made. This allegation is dismissed.

[126]As the Tribunal has found that the respondent cannot be vicariously liable for the actions of Susan Dando, this allegation must be dismissed.

[127]Given Ms Halliwell’s evidence that if there were no outstanding issues she would have provided a full reference for the claimant, and given that at the time of the reference request the claimant’s outstanding issues included these proceedings she had brought under the Equality Act 2010, we determine that her motivation for not giving the reference was based upon the fact that the claimant had brought her claim to the Employment Tribunal alleging discrimination based on sex.

[128]The evidence given by Ms Halliwell did not go so far as to say that the provision of a reference for the claimant might compromise the way in which the company handled the case brought against it by the claimant.

[129]The respondent submitted that the Tribunal should consider section 27(3) of the Equality Act 2010 which provides that “giving false evidence or information or making a false allegation is not a protected act if the evidence or information is given, or the allegation is made, in bad faith”. Although we have only found for the claimant in respect of one of the preceding allegations, we do not find that there was any question of the claimant giving false evidence or that she acted in bad faith.

[130]We therefore find that the respondent did victimise the claimant when failing to provide the requested references.

[131]Having reached this conclusion in favour of the claimant on victimisation it is not necessary for us to make findings on the question of disability or direct discrimination. Time Limits

[132]We made findings in favour of the claimant in respect of the first allegation which related to 27 April 2016 and the last allegation which related to 19 and 27 October 2017.

[133]Given that the claimant’s claim was presented on 2 December 2016 it was not presented within the period of three months starting with the date to which the first allegation related. This isolated act, occurring during the claimant's recruitment, cannot be regarded as conduct extending over a period as it was a one-off action.

[134]No explanation has been given as to why this claim was not presented in time. There is no basis upon which we can consider it just and equitable to extend the time period therefore the first allegation must be dismissed as being out of time.

Remedy

[135]There will be a remedy hearing on Wednesday 2 October 2019 at 10.00am at Alexandra House, 14-22 Parsonage, Manchester, M3 2JA.

Findings of Fact

[136]On 14 November 2017 Independent Options wrote to the claimant saying that she would not be offered the post of Support Worker. The key paragraph read as follows: “As you are aware the original offer was subject to receiving satisfactory references. I have tried to obtain a reference from the various different employers you provided me with. However, the reference requests were unsuccessful.”

[137]The other employer from whom a reference was sought was the company which employed the claimant before she worked for the respondent. That company provided a factual reference. It was only the respondent that did not provide any reference.

[138]Mrs Halliwell gave evidence about why no reference had been provided. Her witness statement for the hearing before the Sherratt Tribunal said that she was surprised to receive the reference request because the claimant was still employed by the respondent but was sending in sick notes and saying that she was not fit to work. She did not want to say anything negative about the claimant and felt that anything that could have been said would have exacerbated the situation. Her statement said the thought of providing a factual reference did not cross her mind at all.

[139]In her oral evidence to our hearing Mrs Halliwell confirmed that she did not get legal or HR advice. She felt that if she gave a reference she would have to disclose that the claimant had been at work for only four months out of her 18 months of employment.

[140]As to her awareness of whether the claimant was a disabled person at the time, Mrs Halliwell had seen no medical information save some of the fit notes, which had been issued for more than a year and which made reference to low mood.

[141]Mr Henry invited us to conclude that this was not direct disability discrimination. The reason that no reference was provided was set out in paragraph 4 of Mrs Halliwell’s witness statement and was because of the length of time the claimant had been off compared to the length of time she had been in work. The position would have been exactly the same for a non-disabled employee with the same sickness record.

[142]The claimant invited us to conclude that it was direct disability discrimination because the circumstances and length of her absence, and the information available to the respondent, was such that there could have been no doubt that she was a disabled person. In effect the claimant argued that the fact she was on long-term sick leave was the same as being a disabled person and therefore that there was direct discrimination as well as the victimisation found by the Sherratt Tribunal. Discussion and Conclusions

[143]We considered whether the fact the claimant had been a disabled person in October 2017 had had any material influence (conscious or subconscious) on the mental processes of the decision maker, Mrs Halliwell. We bore in mind that the decision maker cannot be influenced by the fact that the claimant was a disabled person if she does not know that she is disabled.

[144]The comparison required by section 13 is governed by section 23 which provides that there must be no material difference between the circumstances of the comparators apart from the protected characteristic. It followed that the hypothetical comparator on whom the claimant relied under section 13 would be a person:• employed by the respondent from May 2016 and who had gone off sick in September 2016;

• who had submitted a grievance when going off sick, in which she made allegations of discrimination and harassment;

• who had submitted an Employment Tribunal claim form in December 2016;

• who had not returned to work and had submitted a series of fit notes which initially referred to stress at work and later referred to low mood and other terms;

• but who was not a disabled person under the Equality Act 2010, perhaps because whilst she could not return to work for the respondent, she had not experienced a substantial adverse effect on her day-to-day activities.

[145]We accepted Mrs Halliwell’s evidence to our hearing that she thought any reference would have to say that the claimant had been off for over 12 months having worked for only four months before going off sick, and that that was bound to be seen in a negative light by the prospective new employer. We found as a fact that Mrs Halliwell would have taken the same approach to a person in the same position who was not disabled under the Equality Act. She would have had exactly the same thought process for this hypothetical comparator and would have reached the same conclusion that any reference she could give would have been too negative.

[146]So even if the burden of proof had shifted to the respondent, the respondent had shown that the fact that the claimant was a disabled person had no material influence on the mental processes of Mrs Halliwell because she did not know at that stage the claimant was covered by the Equality Act and her reason for not providing a reference had nothing to do with the claimant's status as a disabled person. The failure to give a reference did not amount to direct disability discrimination. REMEDY REASONS

Preliminary Matters

[147]Having delivered judgment on liability with oral reasons, the tribunal heard evidence from the claimant and submissions on remedy. There were three preliminary matters we had to resolve during the hearing on 17 November 2023. Charity Job Application

[148]The first issue concerned a job application in 2018 for a role with a charity. An Employment Tribunal complaint against that charity had been resolved by an agreement which included an obligation of confidentiality on the claimant. The claimant objected to the inclusion in the bundle of some material relating to this because it would put her in breach of that agreement. Upon enquiry it became clear that the agreement permitted her to disclose information “as required by law”. The Tribunal was satisfied that the information about the charity role was relevant to the question of the determination of remedy, and we unanimously made this Order: ORDER: The claimant must disclose to the Tribunal and to the respondent the documentation relating to her application for a charity role made in October 2018.

[149]In compliance with that the claimant produced a three-page witness statement, accompanied by relevant documents. We will refer to some of those documents below. Hearing in private

[150]The evidence about remedy was also going to include evidence of a sensitive personal nature about various medical conditions which have affected the claimant. The claimant wanted that part of the hearing to be conducted in private under rule 50. Mr Henry agreed that that would be appropriate, but that in itself did not mean that any such measure was justified. It is the role of the Tribunal to ensure that the common law principle of open justice, and the rights guaranteed by the European Convention on Human Rights in Article 6 (the right to a public hearing) and Article 10 (freedom of expression) are properly protected when balanced against the right under Article 8 to respect for home and private life.

[151]We took evidence on oath from the claimant about the effect on her if personal medical information were to become available to the public as a consequence of that part of the hearing being in public, or of being recorded in detail in this Judgment.

[152]Having heard that evidence we were satisfied that there if details of the medical position became public there would be a real risk to the claimant's recovery from the mental and physical conditions she has experienced since 2016. In our judgment the need to keep those details private outweighed the public interest in this small part of the case being heard in public. This Order was made unanimously: ORDER: Under rule 50 the part of the hearing where the claimant gives oral evidence about her medical position will be conducted in private.

[153]Mrs Halliwell left the hearing room during that part of the hearing, meaning that the only people in attendance apart from the Tribunal were the claimant and Mr Henry. When that part of the oral evidence ended the hearing resumed as a public hearing, and Mrs Halliwell returned. Agreement to provide a reference

[154]In the course of submissions in relation to remedy Mr Henry asked whether the claimant was pursuing any recommendation from the Tribunal as she had ticked that box on her claim form. The claimant said she would like the respondent to provide a factual reference. Helpfully Mr Henry, on instruction from Mrs Halliwell, confirmed that that could be agreed. The Tribunal did not need to exercise its power to make recommendations. Legal Framework for Remedy Discrimination Remedy

[155]The starting point is section 124 of the Equality Act 2010:(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).

(2) The tribunal may — (a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; (b) order the respondent to pay compensation to the complainant; (c) make an appropriate recommendation. ………. (6) The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by a county court or the sheriff under section 119.

[156]The amount of compensation in cases of discrimination should be calculated in the same way as damages in tort: Ministry of Defence v Cannock & Others

[1994] ICR 918

. A Tribunal should determine what loss, financial and non-financial, has been caused by the discrimination in question. The EAT stated ‘as best as money can do it, the applicant must be put into the position she would have been in but for the unlawful conduct'. The tribunal must ascertain the position that the claimant would have been in had the discrimination not occurred.

[157]In relation to an award of compensation for injury to feelings, the onus is on the claimant to establish the nature and extent of the injury to feelings. The amount of the award under this head should be made taking into account the degree of hurt, distress and humiliation caused to the complainant by the discrimination. In Armitage Marsden & HM Prison Service v Johnson

(1997) ICR 275

a number of principles were identified which can be summarised as follows:-162.1 Awards for injury to feelings are compensatory not punitive.

162.2 Awards should not be too low, as that would diminish respect for the policy of anti-discrimination legislation (see Alexander v The Home Office

[1998] IRLR 190

CA). Nor should they be so excessive as to be viewed as “untaxed riches”.

162.3 Awards should be broadly similar to the whole range of awards in personal injury cases.

162.4 Tribunals should remind themselves of the value in every day life of the sum they have in mind.

162.5 Tribunals should bear in mind the need for public respect for the level of awards made.

[158]In Vento v Chief Constable of West Yorkshire Police

[2003] IRLR 102

the Court of Appeal gave guidance as follows in paragraphs 65-68:65. Employment Tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury. i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

66. There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.

67. The decision whether or not to award aggravated damages and, if so, in what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled.

68. Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage. In particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage. The extent of overlap will depend on the facts of each particular case.”

[159]Subsequently in Da’bell v NSPCC [2010] IRLR in September 2009 the EAT said that in line with inflation the Vento bands should be increased so that the lowest band extended to £6,000 and the middle band to £18,000.

[160]The Court of Appeal confirmed in De Souza v Vinci Construction (UK) Ltd

[2017] EWCA Civ 879

that the 10% uplift in personal injury awards required by Simmons v Castle

[2012] EWCA Civ 1288

should apply to awards for injury to feelings and injury to health in discrimination complaints.

[161]On 5 September 2017, following a consultation exercise, the President of the Employment Tribunals in England and Wales published Presidential Guidance on the Vento bands which indicated that: “in respect of claims presented on or after 11 September 2017, and taking account of Simmons v Castle and De Souza v Vinci Construction (UK) Ltd, the Vento bands shall be as follows: a lower band of £800 to £8,400 (less serious cases); a middle band of £8,400 to £25,200 (cases that do not merit an award in the upper band); and an upper band of £25,200 to £42,000 (the most serious cases), with the most exceptional cases capable of exceeding £42,000.”

[162]This claim was presented in the year beginning in April 2016 in relation to the interview comments, and (by amendment) in the following year for the Dando email and the reference issue. We took the Vento bands as being as in the Presidential Guidance of September 2017 for the latter, and slightly lower for the former, but of course what matters is not the precise boundaries of each band but the sum the Tribunal considers appropriate as compensation having regard to the effect on the claimant of the discrimination. In reaching the figures below we took account of the effect of inflation and the Simmons v Castle uplift.

[163]The power to award compensation for injury to health, as distinct from injury to feelings, was confirmed by the Court of Appeal in Sheriff v Klyne Tugs (Lowestoft) Ltd

[1999] IRLR 481

. It is for the claimant to prove that the unlawful treatment made her health worse. The Judicial College produces guidelines for assessing compensation for psychiatric injury.

[164]Aggravated damages were considered by the EAT in Commissioner of Police of the Metropolis v Shaw

[2012] ICR 464

. The principles were set out in paragraphs 19-24 of that decision. If it is appropriate to award such damages, the amount should be compensation for the extent to which the injury to feelings of the claimant has been aggravated by the manner of the discrimination, the motive, or any subsequent conduct. Double compensation must be avoided so the EAT recommended that Tribunals should make an overall award for injury to feelings which incorporates a sum as aggravated damages.

[165]Finally, interest on discrimination awards is governed by the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. Where an award is made the Tribunal must consider awarding interest but has a discretion whether to make any award. For injury to feelings awards interest is in principle calculated over the period between the discriminatory act and the award (Regulation 6(1)(a)); for financial loss compensation the period is between the midpoint date and the award (Regulation 6(1)(b)). However, a different approach to the relevant periods can be used in order to avoid serious injustice (Regulation 6(3)). For cases where the claim form was presented on or after that date it is the rate prescribed by the Judgments Act 1838 (currently 8% per annum).

[166]Where there has been an unreasonable failure to comply with the ACAS Code of Practice on Discipline and Grievance Procedures, the Tribunal has power under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 to increase or reduce compensation by up to 25%. Findings of Fact on Remedy

[167]Having heard further oral evidence from the claimant, and having considered relevant pages in the bundle of documents together with those of her statements that addressed remedy, the Tribunal made the following additional findings of fact relevant to remedy. Interview Comments April 2016

[168]The comments made by Mr Rathore in interview did concern the claimant, but she did not do anything about them at the time. She continued with her application for employment, started the job on 10 May 2016, and did not mention them to anyone, either informally or in her written grievance of 14 September 2016. There was no record of the claimant having mentioned this to her GP when she began seeing her GP from 20 September 2016 (page 962). The matter was raised for the first time in the claim form on 3 December 2016.

[169]The claimant was ill by that stage. She had one day off work with stress on 8 July 2016, and went off sick on a self-certified basis on 14 September before putting in her grievance just after 5.00pm that day. She was unable to see her GP until 20 September when she was certified unfit for work because of stress at work for a period of one month. The GP entry at page 962 referred to her having been “happily settled” in her new job but recently starting problems with her line manager. At that consultation the claimant was prescribed citalopram, an antidepressant, and propranolol for anxiety. As indicated above, that prescription was renewed in the months that followed. In April 2017 the citalopram was replaced by sertraline, but the claimant stopped taking antidepressants in October 2017. She did so because they made her feel worse, partly because of “brain fog”. Dando Email June 2017

[170]The claimant was still on anti-depressants when she received the email sent by Ms Dando on 29 June 2017. By that stage the claimant had been off work for approximately nine months. She had begun therapy in early 2017, having first been referred for therapy in the NHS at some point after September 2016.

[171]The claimant gave evidence in her witness statement for the original hearing about how the email made her feel. We accepted her evidence that it was very hurtful, intimidating and offensive, coming as it did four weeks before the proposed final hearing in her case. We also accepted that the claimant regarded the Dando email as the “last straw” in the sense that it caused her to think that she had to look for work outside the respondent.

[172]Apart from the injury to her feelings, however, there was no medical evidence of an impact on her health. She saw her GP on 6 July 2017 (page 961) but the GP entry simply recorded that a new fit note was issued for low mood. There was a reference in the history to some chest pains and other matters, but nothing mentioned about the email itself. The comments from the doctor that day also indicated that the claimant was going to attend A & E for further tests, and that she should call 999 if there were any worsening symptoms, but those comments appeared to relate to physical problems (presumably the chest pains) rather than any mental health issues. Reference Issue October 2017

[173]Looking for work elsewhere resulted in an offer of employment from Independent Options. It was a part-time role as a Community Support Worker for 25 hours per week paid at £8.21 per hour. The claimant was offered the role subject to references, and it was only the absence of a reference from the respondent which resulted in that job offer being withdrawn by letter of 14 November 2017.

[174]We found as a fact that learning that she was not getting the job because of the absence of a reference came as a great blow to the claimant. In her witness statement for the final hearing in September 2018 she described enormous distress. This job was her way out of the respondent, and of great importance to her because once in employment she would be able to get a good reference from her new employer and find other better paid work in future. The claimant had put a significant amount of effort into getting the job, which she was able to do following therapy sessions, work coaching and medical treatment. The recruitment process had included a 27 page application form, two interviews and several telephone conversations, and had been stressful for her. The news that the job offer was withdrawn caused her humiliation because she had told family and friends about the new job but now had to tell them that she had not got it. She also had to appeal against the withdrawal of her benefits at the time which exacerbated the feelings she had when the job was withdrawn. We found that her feelings were seriously injured by the failure to provide a reference.

[175]The claimant also said that this caused a severe nervous breakdown and a relapse into depression. The claimant did go to A & E on 13 December 2017 in respect of a heart condition and chest pain symptoms, as recorded at page 959 but otherwise that was not reflected in the medical records available to us.

[176]We found as a fact that the claimant was not re-prescribed any medication following the loss of the Independent Options job, and nor was there any reference in her medical notes to a nervous breakdown at that time. She continued with the therapy through the NHS and later on a privately funded basis. Charity Role October/November 2018

[177]The claimant continued from late 2017 in receipt of Employment Support Allowance, and had to undertake volunteering roles, some of them full-time, in an effort to try and build up organisations who would give her a reference. Her volunteering experiences were not entirely satisfactory. The pressure for her to find paid work resulted in her applying for a charity role as a part-time Polish Project Administration Worker. The closing date was at the end of October 2018.

[178]The information provided (which was attached to the claimant's witness statement about this) gave a start date of 15 November 2018 on a six month fixed term contract working 16 hours a week at £8.75 per hour. However, it transpired that the role was not as billed. The claimant only realised this when she was sent by email a “freelance contractor agreement” which referred not to pay or salary, but to fees and expenses as per the schedule, which was blank. It was apparent to her that the role was quite different from what she had been led to believe. The claimant experienced what she described as a “nervous breakdown” and as a consequence the opportunity to do that work was denied to her. Ongoing Effects

[179]The claimant's experiences whilst working for the respondent during 2016 contributed to a situation where she suffers from a number of serious and longlasting health issues. She does not think she will be able to return to full-time work ever again. She is now arranging to return to Poland. She has continued to experience significant health problems. These are in relation to a variety of matters, including a serious physical issue which arose in early 2019 and led to an operation in January. A second operation was meant to follow but has been delayed because of the pandemic and post Covid complications. The claimant is still waiting for it and is still getting therapy and taking propranolol. Claimant's Submissions on Remedy

[180]The claimant relied on her two Schedules of Loss and the contents of her written witness statements and skeleton argument. In her oral submissions she emphasised how hard she tried to get back to work, and invited us to conclude that if she had got back into work with Independent Options she would not have needed the therapy and the medication to continue until today. She would have been able to keep her car rather than having to sell it. She was having to leave the United Kingdom to return to Poland because she could not sustain herself on part-time work alone.

[181]The Tribunal asked the claimant how it was to deal with the question of identifying the effect of these three incidents compared to the eighteen which were unsuccessful and her overall experience with the respondent. In reply the claimant said that the propranolol and the therapy had both started in September 2016 and were continuing to this day, and were attributable to the respondent’s actions. She also submitted that the recovery she was making through therapy was set back by the Dando email and then by the failure to give a reference. The Dando email had been the “last straw”.

[182]The claimant invited us to conclude that the GP entries were not a complete record of what she told the GP, and often were compiled during very brief ten minute consultations in any event. She would only mention the most important things rather than everything which was affecting her.

[183]In relation to aggravated damages the claimant reiterated the contents of her Schedule of Loss which set out in detail why she considered that the way the respondent had conducted the case had aggravated the injury to feelings. It included a postponement for which a genuine reason was not given, issues about the termination of her employment in 2018/2019, and the attitude of the respondent’s representative towards her personally.

[184]The claimant submitted that the fact she did not take up the charity role in 2018 was entirely reasonable and should not be viewed as any end point for compensation.

[185]The claimant stood by the amounts set out in her Schedule of Loss for injury to feelings and injury to health. She said that the award for injury to feelings for all three matters taken together should be £18,000.

[186]Finally, the claimant submitted that there was a breach of the ACAS Code by the respondent because her allegations of race discrimination in the grievance had not been properly answered and she opposed any reduction in compensation because by the time of the Dando email and the failure to provide a reference the Tribunal proceedings were well under way and it was reasonable not to pursue a grievance about such matters but simply to incorporate them into the case. Respondent’s Submissions on Remedy

[187]Mr Henry made oral rather than written submissions. He emphasised that there were no entries in the medical records available to the Tribunal about these three matters, which meant that no award for injury to health was appropriate. He said that could also be taken into account in assessing the appropriate award for injury to feelings.

[188]There had been no effort to pursue the interview harassment matter until the ET1 was presented, and it had not even been referred to in the grievance. The Dando email was undoubtedly upsetting but was not mentioned in the GP consultation about a week later on page 961. The same was true of the reference issue: there were no medical entries. The withdrawal of the job offer by Independent Options occurred just after the claimant had come off antidepressants and she did not go back on them.

[189]This might be a case, he submitted, where the Tribunal made separate awards of injury to feelings and he suggested £2,000, £4,000 and £2,000 respectively for the interview, the Dando email and the reference issue. Alternatively, an award for all three which was at the bottom of the middle band under Vento would be appropriate.

[190]On injury to health he submitted in addition that there were plenty of health issues unrelated to these three incidents, in particular some which resulted from personal factors.

[191]As for aggravated damages, he submitted that the claimant had not made out that the way the proceedings were conducted had aggravated the injury to her feelings. This was effectively no more than litigation.

[192]On financial loss he accepted that the failure to provide a reference caused the Independent Options job offer to be withdrawn, but he suggested that any loss from that should he restricted. Firstly, credit would have to be given (as the claimant acknowledged) for ESA income in that period, and secondly it should be regarded as ending at the point where the claimant did not pursue the charity role. It would be wrong for the respondent to be liable for any loss after that period.

[193]Failing that, the claimant had herself provided evidence that she had an important health issue in early 2019 which would have ended her income from Independent Options in any event. He suggested that an award of one year would be appropriate.

[194]On the ACAS Code Mr Henry submitted that no increase in compensation was appropriate because the grievance procedure had been followed, but the compensation should be reduced by 10% because the claimant had not lodged a grievance about any of these three incidents.

[195]In relation to interest he invited us to conclude that applying the normal rule would amount to serious injustice to the respondent because the length of time would result in significant awards of interest of 50% or more in relation to the injury to feelings awards. He therefore invited the Tribunal to take a different view as to the period over which interest should be awarded. Discussion and Conclusions on Remedy Interview Comments

[196]The first matter the Tribunal considered in deliberations in chambers on 30 November 2023 was the appropriate award for injury to feelings and injury to health in relation to the comments made at the job interview on 27 April 2016. The claimant submitted that the award for injury to feelings for all three matters taken together should be £18,000, whereas Mr Henry submitted that the award for this matter in isolation should be £2,000.

[197]We noted that there was no evidence of any significant impact on the claimant of this comment. She did not mention it to anyone until she presented her Tribunal complaint in December 2016. She accepted the job offer, and indeed the first part of her employment was successful and settled. When she saw her General Practitioner about a week after going off sick on 20 September 2016 the GP recorded that problems had started “recently”. It was clear to us that an award in the lowest of the Vento bands was appropriate.

[198]We noted, however, that it was a comment made by the person in a position of power over the claimant, being the proprietor of the respondent and the person who had the right to decide whether she was offered the job or not. In those circumstances it was understandable that the claimant might not mention her concerns, being keen to find employment and make a success of it. We found that this was why there was no mention made of the comment at the time, not because it had had no impact.

[199]Putting those matters together we were satisfied that a comment made at the job interview of this kind, which amounted to harassment contrary to the Equality Act, did cause injury to feelings sufficient to warrant an award of £2,000.

[200]There was no evidence, however, that this caused any injury to the claimant’s health at that time. The claimant was off sick for one day in July 2016 before her long-term sickness commenced at the time she filed her grievance about other matters in September 2016. The claimant had not proved that the interview comments caused any injury to her health and no award was made. Dando Email

[201]The second matter we considered was the appropriate award in respect of the Dando email of 29 June 2017.

[202]That email was written in hurtful and intimidatory terms. The heading of the email and the content would plainly have a significant impact on the feelings of the recipient. We noted as well that at this stage the claimant was in a vulnerable position. She had been off work and on antidepressants for nine months, and she was about four weeks away from her Employment Tribunal hearing. We found as a fact that receipt of an email in those terms from a senior manager in the group of companies had a significant effect on her feelings.

[203]Mr Henry submitted that the appropriate award for this item would be £4,000. We disagreed with Mr Henry and concluded that an award of £6,000 was appropriate given the terms of the email, its timing and the claimant’s vulnerable position at the time she received it. For reasons set out in paragraphs 222 – 223 below, we increased this by a further £1,000 by way of aggravated damages.

[204]We considered carefully whether any award for injury to health was appropriate as well. We noted that there was no reference to this in the GP visit on 6 July 2017, although we recognised the claimant's explanation that the GP visits were essentially not detailed discussions of the current position but intended to get an extension to the fit note. However, there was nothing in the medical records to suggest any link between the receipt of this email and the chest pains which were mentioned in the history and comments section. Further, the timing of the visit appeared to be dictated by the fact that the fit note issued on 8 May was expiring the following day, and we inferred that this was not a visit to the GP triggered by receipt of the Dando email. Indeed, we noted that in May the fit note had been issued for two months but at the visit on 6 July the fit note was issued only for a further month, which was not consistent with any deterioration in health; if anything, it suggested the opposite.

[205]We therefore concluded that the claimant had failed to prove that this email had any detrimental impact on her health, as opposed to on her feelings, and therefore no separate award was made. Reference Issue

[206]The third matter we considered was the appropriate award for injury to feelings and injury to health in relation to the failure to give a reference, which amounted to victimisation.

[207]The claimant had decided that she had to find another job following the Dando email, and this was particularly important to her. Firstly, it was a way out of her employment with the respondent which had caused her such distress and had affected her health for over a year. Secondly, it would enable her to get a new reference from the Independent Options role which would make her much better placed to find full-time employment at a higher rate of pay in the future. It was therefore very important to the claimant that she got this role, and we were satisfied that receipt of the letter withdrawing the role because of the absence of a reference came as a huge blow to her feelings. We took into account that she was still a vulnerable person at that stage because of her long-term health absence and the fact she was suing her employer in the Employment Tribunal, and we were satisfied that in all the circumstances it was appropriate for an award to be made in the middle Vento band.

[208]We also considered whether an award for injury to health would be appropriate. We noted the oral evidence the claimant gave about the effect on her, which she described as a severe nervous breakdown and a relapse into depression, but her assertion on those points was not supported by medical evidence about causation. The visit to A & E about a month later was attributed to the heart condition (page 959), and the claimant was not re-prescribed the antidepressant medication which she had ceased taking in October 2017. We concluded therefore that it was not appropriate for us to make any separate award for injury to health, but rather to make an award for injury to feelings which took account of the fact that the claimant's feelings were more injured than they would have been had she been a person in good health at the time.

[209]Putting those matters together we rejected Mr Henry’s submission that an award of £2,000 was appropriate for this matter and decided that an award of £9,000 was the appropriate figure for injury to feelings. Financial Losses

[210]The claimant in her Schedule of Loss on the three remitted grounds claimed financial loss compensation running from 14 September 2016 when she first went off sick and submitted her grievance, but we unanimously decided that no financial loss compensation of that kind was appropriate. The events which caused the claimant to become ill and to go off sick in September 2016 did not include the comments made at the interview in April 2016, but rather the later events which the Sherratt Tribunal found not to be discriminatory. The interview comments did not affect the claimant's health in any way: she was able to start the job about three weeks later and make a success of it in the early days. As for the Dando email, we were satisfied that even if it had never been sent the claimant would have remained on sick leave continuously throughout the rest of 2017 and 2018, as she had already been off sick for nine months by the end of June 2017. No award in respect of financial loss was appropriate for those two matters.

[211]However, we did assess compensation for financial losses resulting from the failure to give a reference. We found as a fact that it was only the respondent that was asked for a reference and therefore the failure to give a reference was the sole cause of the claimant not having the job offer confirmed. We did not see the reference request form which was attached to the email from Independent Options of 19 October 2017 at page OB411, but we noted that the email itself asked the respondent to indicate in what capacity and for how long they had known the claimant. If Mrs Halliwell had acted in a way that did not amount to victimisation, a short factual reference confirming the claimant’s job role and start date of employment would have been provided, and that this would have resulted in the job offer being confirmed.

[212]At that stage the claimant was on sick leave and not in receipt of any pay and we found that if the reference had been provided promptly the claimant would have been able to have taken up the role with Independent Options on 1 November 2017.

[213]The claimant claimed loss in respect of the value of the employer’s national insurance contributions which Independent Options would have made, but we were satisfied that there was no loss there because the amount of employer contributions made is not material to whether the national insurance contributions record is complete for any relevant period. The claimant remained in employment and in receipt of ESA and therefore our understanding was that she would have received credits for that period. In addition, we made no separate award for loss of holiday entitlement from Independent Options because that would have been paid annual leave covered by lost wages. Our calculations were based on the net loss of earnings only.

[214]We considered how long the income from that job would have continued. Mr Henry did not seek to pursue any argument that the claimant would not have been able to carry on in that job and make a success of it. He did not invite us to limit the period of loss by reference to any “withdrawal factor” of that kind. We were satisfied that the claimant had the skills and capabilities to make a success of this role.

[215]However, Mr Henry did submit that the period of loss should end in midNovember 2018 when the claimant decided not to pursue the charity role. In effect he invited us to conclude that the claimant had failed to mitigate her losses by not taking up that opportunity. We rejected that argument. It was clear that the claimant was very disconcerted by the fact that the charity role turned out to be a freelance self-employed role rather than the employed role with a fixed hourly rate which she had been led to believe. The freelance contractor agreement itself provided at clause 3.1 (page 9 of the attachments to the claimant's witness statement about this) that the services specified in the schedule (which was blank) would only be required at such times as the charity and the claimant would agree from time to time. It was effectively a “zero hours contract”. Given the claimant's state of health, and given her evidence about the effect on her of the reality of this opportunity that we set out above, we were satisfied that the claimant acted reasonably in not taking this up. We rejected the argument that her period of loss should end in mid-November 2018.

[216]However, it is a matter of record that the claimant experienced serious health problems of a physical nature in early 2019 and underwent an operation in January of that year. We concluded that this would have left her unable to continue in her role with Independent Options, had that role not been withdrawn in the absence of a reference, either because that role would then have ended or because she would have been on long-term sick leave. Although we have not seen the terms and conditions attaching to that role, bearing in mind the nature of the organisation and of the role, we cannot conclude that there would have been entitlement to ongoing occupational sick pay beyond statutory sick pay, from which the Employment Support Allowance (“ESA”) actually received would have to be deducted. We therefore concluded that the period of loss for which we should compensate the claimant relating to earnings from the lost Independent Options role should end on 31 January 2019.

[217]That role came with a rate of pay of £8.21 per hour for 25 hours per week. Those figures came from the job advert which appeared at page 9 of the claimant's Schedule of Loss for the victimisation claim. That job advert also indicated that the person appointed would be able to become part of the weekend away service where the worker would be paid £377.92 for each weekend spent accompanying young adults to a variety of UK destinations. The claimant said in her Schedule of Loss that she would have worked one in five weekends on this basis, and this was not challenged by Mr Henry.

[218]We calculated the loss sustained by the claimant through not getting this role in the period between 1 November 2017 to 31 January 2019. The period as a whole was 65 weeks, and working 25 hours per week at £8.21 per hour would mean a weekly loss of £205.25 gross. Over the period this equated to £13,341.25. To that we added 13 working weekends at £377.92 each, making a further £4,912.96. That meant that the gross income the claimant lost in the period was £18,254.21.

[219]From that we had to deduct the gross amounts the claimant had received by way of ESA. The figures in her Schedule of Loss were not challenged by Mr Henry.

[220]The period of loss with which we were concerned covered two different tax years and we calculated the net losses separately.• In the tax year 2017-2018 we were concerned with a period of 21.5 weeks from 1 November 2017 to the end of March 2018. On a pro-rata basis the figure for 65 weeks of gross income of £18,254.21 reduced to £6,037.93 (21.5 weeks of the 65). We did not make any deduction for tax and national insurance because that was below the personal allowance. For the period the claimant received 21.5 weeks of ESA at £73.10 per week, making a total of £1,571.65. This left a net loss in that first tax year of £6,037.93 - £1,571.65 = £4,466.28.

• In the new tax year from April 2018 to 31 January 2019 (43.5 weeks) the claimant would have received gross payments from Independent Options of £12,216.28 (43.5 weeks of the 65). That only just exceeded the personal allowance for that tax year, and we were satisfied that the appropriate figure to use in net terms would be £11,688 once tax and national insurance were taken into account. Between 1 April 2018 and 31 January 2019 she received ESA of £109.65 for 43.5 weeks totalling £4,769.78. This left a net loss in that second tax year of £12,216.28 - £4,769.78 = £6,918.22.

[221]Adding these two net losses together made £11,384.50, which we awarded as compensation for financial losses resulting from the failure to give the claimant a reference in October 2017. Aggravated Damages

[222]We then considered the question of aggravated damages. We took into account the case law which shows that it is wise to include any compensation for the aggravation of injury to feelings as part of the overall injury to feelings award. The claimant's case on aggravated damages was set out on pages 1-5 of the schedule prepared for the victimisation complaint alone, but the claim was reiterated in the schedule for our hearing. The amount identified in the first schedule was £13,300 as aggravated damages.

[223]Much of what the claimant relied upon, however, was part of the litigation in these proceedings generally. We had to take into account that the claimant was unsuccessful on 18 out of her 21 allegations. The litigation was bound to be stressful for her, as a disabled litigant in person, and much of what she raised as aggravating features were just part of an adversarial litigation process. However, we were satisfied that there was some aggravation to the injury to her feelings resulting from the Dando email by the approach the respondent took to bad faith in relation to whether the claim form was a protected act. The claimant had been accused of making false accusations in the Dando email itself, and made clear in her case on aggravated damages that she was also greatly upset at the hearing before the Sherratt in July 2019 that the claim form had been lodged in bad faith as well. That argument was rejected by the Sherratt Tribunal. In those circumstances we concluded that it was appropriate to increase the award for injury to feelings for the Dando email by £1,000 to reflect these specific aggravating features, but we otherwise rejected the complaint seeking aggravated damages on a more general basis. That meant that the award for injury to feelings for the Dando email, including the aggravating features, was increased to £7,000. ACAS Code Adjustments

[224]The next matter we considered was whether to award the claimant any increase in compensation because of an unreasonable failure by the respondent to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures. The immediate difficulty was that the claimant did not lodge a grievance about any of the three matters for which we were awarding remedy. On that basis alone we concluded no uplift was appropriate. However, we would not have awarded any uplift in any event on the basis for which the claimant contended. In procedural terms the grievance procedure was followed. The claimant’s grievance of 14 September 2016 was acknowledged promptly, a meeting arranged which she was unable to attend, and an outcome provided. Her appeal was considered by a more senior person, a non-executive director, and again the claimant was unable to attend the meeting before the appeal outcome. The claimant's case was based upon the proposition that her allegations of race discrimination had not been properly addressed in the grievance, but none of those allegations of race discrimination were upheld by the Sherratt Tribunal in any event. No uplift was awarded.

[225]The respondent argued that there should be a reduction in compensation of 10% because the claimant had unreasonably failed to pursue a grievance in relation to the three matters with which we were concerned at the remedy stage.

[226]In relation to the harassment comments at interview, we were satisfied that the claimant had not unreasonably failed to comply with the ACAS Code of Practice. It was reasonable of her not to lodge a grievance at the time, because she was starting employment and wanted to make a success of it, and it was also reasonable, we concluded, for her to make no mention of this in her grievance of 14 September 2016 because that was a grievance about her line manager made to Mr Rathore, and raising a grievance about Mr Rathore would have been counterproductive. She wanted Mr Rathore to intervene and put matters right so that she could return to work.

[227]As for the Dando email and the failure to give a reference, we were satisfied that the claimant did not act unreasonably in not pursuing grievances about these matters. Matters had gone well beyond that by then. She had been off sick for nine months, was still on antidepressants, and realised upon receipt of the Dando email that her time with the company would be coming to an end. In deciding to pursue these matters by way of amendment to her claim (or lodging an alternative new claim against D4Digital in the former case), rather than pursuing a grievance internally first, the claimant acted reasonably. No reduction in compensation was appropriate. Interest

[228]We next considered whether to award interest. We were satisfied that this was a case where it was appropriate to award interest, and Mr Henry did not argue otherwise. However, he invited us to conclude that applying the relevant regulations mechanically would lead to serious injustice to the respondent because of the length of time which had passed since the discriminatory actions and the fact that the interest awarded would approach or even exceed half of the substantive sum.

[229]We considered that submission carefully. This was an exceptional case in that in principle we would be awarding interest for events as long ago as April 2016, and at the latest November 2017. However, it could not be said that that delay was attributable to the claimant alone. The delay before the case came to a final hearing in 2018, and the fact that the Sherratt Tribunal was not able to reconvene and issue its written decision until August 2019, was not something for which the claimant bore responsibility. Her appeal was partly successful, albeit on a minority of points.

[230]Importantly, we noted that the respondent continued to contest whether any compensation should be awarded at all for the interview comment (relying on time limits) and for the Dando email (relying on the withdrawal of its concession about vicarious liability), and that it had chosen not to make any interim payment in relation to the reference even once the decision of the Sherratt Tribunal that this amounted to victimisation was available in August 2019. The Tribunal had specifically referred to the possibility of making an interim payment to stop interest accruing in a letter to the respondent in December 2020, but no payment had been made.

[231]Finally, we noted that the respondent has had the benefit of retaining the sums awarded for the whole of this period.

[232]Putting those matters together we decided that applying the principles set out in the regulations would not lead to serious injustice.

[233]The interview comment was made in late April 2016 and the date on which the Tribunal reached this judgment in chambers was 30 November 2023. We decided to award interest for a period of 7.5 years at the rate of 8% per annum on £2,000, which made interest of £1,200.

[234]For the Dando email, the email was sent on 29 June 2017 and we treated that as a period of 6.33 years to this judgment. At 8% per annum on £7,000 that was a total figure for interest of £3,544.80.

[235]For the failure to give a reference in October 2017 we had to consider interest on both awards. For injury to feelings we took that as a period of six years which at 8% per annum on £9,000 made a total figure for interest of £4,320. For the award in respect of financial loss which began on 1 November 2017 the regulations required us to award interest from the mid-point date between the date that loss arises and the date of our judgment. That equated to a period of three years rather than six years. At interest of 8% per annum for three years on £11,384.50 the total awarded was £2,732.28. Grossing up For Tax

[236]Neither side raised this and we decided that it was not appropriate to gross up any of the figures awarded. As the awards relate to compensation for losses which are not lost earnings from the respondent, nor resulting from the termination of employment, it is our understanding that they will not be subject to tax as they fall outside section 401 of the Income Tax (Earnings and Pensions) Act 2003. Preparation Time Order

[237]The final matter we considered was the claimant's application for a preparation time order. Such an order can be made under rule 76 where the other party has acted unreasonably in the conduct of the proceedings. It requires the other party to pay something in respect of time spent preparing for hearings by a litigant without legal representation.

[238]This was mentioned in passing in the Schedule of Loss prepared for the victimisation remedy, and it appeared as one line after a lengthy passage about aggravated damages and injury to feelings. It appeared in the section of that schedule where the claimant calculated the financial losses through not getting the Independent Options job. It seemed to us that in that schedule the claimant was actually seeking compensation for the time she spent preparing for the job interview, which as indicated in paragraph 174 above was extensive. However, that point had been factored into deciding the appropriate award for injury to her feelings.

[239]When asked about this in her oral submissions the claimant said she did want preparation time under the Rules of Procedure for time spent preparing for a hearing which was wasted because of unreasonable conduct by the respondent, but she did not identify what unreasonable conduct there had been, or indeed which hearing and how much time had been wasted.

[240]We concluded that this application reflected her general dissatisfaction with the litigation process, and we did not have any specifics of the time spent and why she maintained that there had been unreasonable conduct of the case in relation to any specific hours spent preparing for hearings. In those circumstances we concluded that no preparation time order was appropriate. RECONSIDERATION JUDGMENT The claimant's application dated 17 January 2024 for reconsideration of the Judgment sent to the parties on 21 December 2023 is refused.

introduction

[1]I have undertaken preliminary consideration of the claimant's application for reconsideration of the Liability and Reserved Remedy Judgment sent to the parties, with Reasons, on 21 December 2023. References in these Reasons to paragraph numbers from those Reasons are bold numbers in square brackets.

Law

[2]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).

[3]Rule 72(1) empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.

[4]I had regard to the overriding objective under rule 2 of dealing with a case fairly and justly, and to comments made by the Employment Appeal Tribunal to the effect that an application for reconsideration is not a “second bite at the cherry”: Liddington v 2Gether NHS Foundation Trust

EAT/0002/16

and Ebury Partners UK Limited v David

[2023] EAT 40

. Enforcement

[5]The claimant's email of 17 January 2024 begins by pointing out that the respondent has not made payment pursuant to the Judgment. Under paragraph 12 of the Reserved Remedy Judgment time for payment was extended to 28 days after 21 December 2023. It was therefore due after the claimant's email.

[6]In any event, issues about the enforcement of Tribunal awards are not a matter for the Employment Tribunal. They are enforced through the civil courts. Claimant’s Application

[7]Three points are then made in support of the application for reconsideration. I have considered each in turn. Protected Disclosures

[8]The first point is that the Tribunal should have allowed and upheld complaints of detriment due to protected disclosures.

[9]We set out in [15]-[19] the basis on which the Tribunal refused to allow the claimant permission to amend her claim so as to introduce such a complaint. A decision to the same effect had already been made by Employment Judge Leach.

[10]There is no prospect of the Tribunal changing its view on this point, which technically is an application for the order to be varied so as to allow such complaints to be determined, rather than for the judgment to be reconsidered. Injury to Health

[11]The second point was that the Tribunal should reconsider the fact that it chose not to make any award for injury to health.

[12]We set out at [204] and [210] why no such award was made. There was no medical evidence to support such an award for any of the three matters on which the claim succeeded.

[13]We do not underestimate the impact on the claimant of her period working for the respondent and the litigation which ensued, but the Tribunal can only award compensation for successful legal complaints, and then only if it is supported by medical evidence. There is no reasonable prospect of the Tribunal changing its decision on this point. Human Rights

[14]The third point raised was about “human rights concerns”, but the application does not specify what judgment the claimant considers the Tribunal should have made.

[15]Employment Tribunals do not have any freestanding jurisdiction over human rights issues in these cases, but the Human Rights Act 1998 and any relevant Convention rights are taken into account in dealing with a case and making the determination after hearing all the evidence and submissions.

[16]There is no reasonable prospect of the Tribunal changing its decision on this point.

Outcome

[17]For those reasons the application for reconsideration is refused. The claimant will need to pursue an appeal to the Employment Appeal Tribunal if she considers that the Tribunal judgment was wrong in law.