Employment Judge SlaterMs S Aly (instructed by counsel) for claimantMr J Searle (instructed by counsel) for respondentDate 9 January 2023
JUDGMENT
[1]The Tribunal does not have jurisdiction to consider the complaint of direct race discrimination in relation to the award of salary.[2]The other complaints of direct race discrimination are not well founded.[3]The complaints of harassment related to race are well founded.[4]The complaint of victimisation is not well founded.[5]Remedy for the complaints of harassment related to race will be determined at a remedy hearing on 15 December 2022.
REASONS
Conclusions
[1]The claimant claimed direct race discrimination, harassment related to race and victimisation.[2]The complaints and issues relating to liability were agreed at the outset of the hearing to be as set out in the Agreed List of Issues appended to these reasons.[3]Ms Aly clarified that the claimant relied on her ethnic origin, identified as AfroCaribbean, for all the complaints, and additionally on her US nationality for the complaint of harassment related to race about the alleged joke about the claimant being deported whilst a visa application was ongoing.[4]During the hearing, Mr Searle conceded, on behalf of the respondent, that the claimant’s grievance of 14 February 2020 was a protected act.
Issues
[5]The Tribunal and the parties agreed at the start of the hearing, that the hearing would be limited to dealing with liability only, with a separate remedy hearing to follow, if required.
Summary
[6]The claimant’s complaints relate to a period of her employment under the management of Craig Warner, which began on 1 August 2019. The claimant is a US national and identifies herself as of Afro-Caribbean ethnic origin and black.[7]The claimant went on sick leave shortly after being told by Mr Warner that she was to be placed on a coaching/performance improvement plan.[8]The complaints relate to the salary the claimant was placed on when she transferred into the respondent organisation from BT to work in Mr Warner’s team, comments alleged to have been made by Mr Warner, being told she was to be placed on a coaching/performance improvement plan, and the respondent not exercising its discretion to pay her full pay, when her sick pay reduced to half pay.
Facts
[9]We heard a lot of evidence about matters which were clearly of genuine concern to the claimant. We have not made findings of fact in relation to all these matters, making findings of fact only in relation to those matters relevant to our decision. If we had decided that events occurred as alleged by the claimant, in relation to matters where there was a dispute but we have not made findings of fact, those further matters would not have assisted us in making our decisions. They are not matters from which we considered inferences of discrimination could be drawn. We do refer specifically to some matters of particular significance to the claimant, where there is a dispute, but indicate if we have not made a finding of fact because it was not necessary to do so. We have not referred to all the matters of concern to the claimant.
Evidence
[10]The claimant is a US citizen, having moved there as a child from Haiti. She identifies herself as of Afro-Caribbean ethnic origin and black.[11]The claimant began employment with BT in a graduate role on its graduate development programme on 19 September 2016. The claimant is highly educated, having two degrees; one from a prestigious university in the US and the other from Manchester University.[12]At the time of interview for the job with the respondent, the claimant’s salary, was £36,320 p.a.. This would have risen to £36,900 after a pay review in June 2019. This was in a band one position. There was no direct equivalent grade in the respondent organisation but it is agreed that the grade D post to which the claimant was recruited, was a promotion.[13]The claimant had applied for a role with the respondent. She was called for an interview with Craig Warner and another manager, Amy Tasker, in June 2019. She was told that the role she had originally applied for no longer existed but was informed of another band D role, for which she was interviewed and offered the job.[14]Band D jobs had a salary range at the time of £34,000-£68,000. This salary range overlapped with the lower band E, which had a salary range of £27,500-£47,500.[15]The claimant requested a salary of £41,200. After consultation with HR and Craig Warner’s manager David Brown, the claimant was offered and accepted a salary of £38,000. Craig Warner wrote to Louise Sutherland in HR (p.110) on 14 June 2019, writing: “having offered the role following our chat on Tuesday, I have been asked by the candidate if there is scope for a pay increase. She is currently on £36,320 and will be moving from a band one role into a D role. She has positioned that she would like to attempt an increase to c£41,200. I’d like to offer an increase, given this is a step up - I think £39,000 would be reasonable which is a 7% increase. “I don’t think £41,200 is right, especially given the step up and being unproven at this level. Given the salaries of the other two people I’ve recruited and where she sits in the framework, I would like to offer some increase. “Can I do this?”[16]Louise Sutherland replied that they needed to be fair and consistent to others in their team too. She wrote “let me have a look at salaries on Mon and I will come back to you with a view.”[17]Craig Warner replied with thanks, writing: “definitely wanted to be fair across the piece - my only previous DR’s were in India so my view on UK salaries is poor!”[18]Craig Warner chased on this on 18 June. Later that morning, Louise Sutherland replied, asking for the claimant’s name to check salary and writing: “I am thinking £38k would be reasonable but don’t want to give to pay rises i.e. June pay review + promotion pay review (and at same time not negatively impact on what she has received 1 June).”[19]Craig Warner replied with the claimant’s name. Louise Sutherland then wrote, later that afternoon: “I have looked into her salary and compared to others I would suggest you speak to David first as it’s important we have consistency.”[20]Craig Warner then wrote to David Brown, Craig Warner’s manager. He asked for David Brown’s view on the salary offer for Fignola Alexandre. He wrote that he had asked Louise and the steer was to consider the offer in line with David’s wider team. He asked for David Brown’s view, writing: “ - pre-annual review salary £36,320 as a Band 1; “- requested increase to £41,200. Believe this is too high but if you don’t ask…; “- My view is that £38,000 is a good offer and reflects achieving a promotion. “- Post annual review, Fignola’s salary has increased to £36,900, so £38,000 would be a further 3% increase.”[21]Craig Warner’s email to David Brown forwarded the chain of emails between him and Louise Sutherland, which included the information that this was a grade D role. Aside from this, we would have expected David Brown, as Craig Warner’s manager, to be aware of the grade of role to which Craig Warner was recruiting, particularly given that he was recruiting for his only direct reports.[22]David Brown replied: “£38,000. Takes in line with other Es at starting. If she is good she has plenty of earning potential ahead of her…”[23]David Brown’s reply is incorrect in referring to the claimant’s role as that of a band E, rather than a band D. David Brown’s explanation in evidence was that this was a typographical error. We consider it more likely than not that this explanation is correct, given the information in the email trail that the role was a band D and the reference to a promotion from band 1, in the email from Craig Warner to which David Brown is responding. Also, as previously noted, we would have expected David Brown to be aware of the grade of role to which Craig Warner was recruiting, this being part of David Brown’s immediate team.[24]We accept that the claimant formed an understanding, based, she says, on conversations with Bernice Iyanda and Stephen Tait, that a 10% rise in salary was common on promotion and a 5% rise on a lateral move. On a subsequent lateral move her salary increased from £38,000-£39,900, a 5% increase. Bernice Iyanda and Stephen Tait did not give evidence to the Tribunal about salaries, although they gave evidence on other matters, so we are unable to make any findings as to their understanding about likely pay increases on promotion and what their understanding was based on. We accept the evidence of Theresa Hyde that she had a promotion without any pay rise at one stage and the evidence of Craig Warner that he made a lateral move in 2019 with no pay rise. We find, based on Craig Warner’s evidence, that he had an employee on band E in his team who was promoted to band D and got no pay rise, where this person had been with BT for 18 years and was on a salary of £40,500. In the claimant’s submissions, Ms Aly referred to this person as white. Our notes of evidence do not record Craig Warner identifying the ethnicity of this person. We accept the evidence of David Brown that his experience was that they were recruiting heavily into D roles at the time so he understood that Louise Sutherland would, because of this, know about comparable salaries. Theresa Hyde suggested in evidence that it was standard to put people at the bottom of the band subject to their salary not being less than their previous salary. However, the claimant’s pay increase on moving into band D shows that this was not always the practice. We had no evidence of salaries and ethnicity of comparable employees to the claimant. The claimant has not satisfied us that there was a custom and practice of employees receiving a 10% pay rise on promotion and a 5% rise on a lateral move.[25]Whilst we did not hear any witness evidence at this hearing about the salary of Bernice Iyanda, we note that, in the grievance appeal process, Craig Warner wrote (p.630), that he had no visibility of the salary of any other Ds, with the exception of his other direct report, Bernice Iyanda. He referred to her having a significantly higher salary than the claimant, being on different contract terms and much longer tenure in the business. He wrote that he suspected the high salary was the outlier, rather than the claimant’s.[26]The claimant did not raise a complaint about her level of pay until the appeal against the grievance outcome when she asked that it be amended to a band D salary rather than that of a level E (p.459). The claimant did not expressly link the level of pay to her race in her appeal letter. It appears that the salary issue emerged as a result of the claimant obtaining copies of the email exchanges about her salary in response to a Data Subject Access request, in which David Brown made the reference to band Es. The claimant linked the decision on pay to her race in her claim to the Tribunal, presented on 11 June 2020.[27]The claimant began her new role as an industry engagement specialist on 1 August 2019. She reported directly to Craig Warner. She was recruited by Craig Warner at the same time as he recruited Bernice Iyanda and Jill Ruddock. Bernice Iyanda is black and Jill Ruddock is white. After a short period, Jill Ruddock was transferred by David Brown to another role as he thought her skill set would be better used in another team.[28]On 7 October 2019, Craig Warner was reporting to David Brown that both the claimant and Bernice Iyanda were firmly in “good work”, given the time they had been in role (p.105). His comments about the claimant included that she had turned out some very good work. He wrote that he thought she had big potential within the business ops team and they should look to develop her. There was mention of some areas where the suggestion was that some development was needed e.g. refocusing her approach from monitoring to “are we ready” and facing a challenge, being naturally quiet, of having a presence in a large team.[29]The claimant required a visa to work in the UK. She was on a visa which was due to expire on 28 December 2019. An application for an extension of this visa had to be made before that date for her to be allowed to continue to remain in work in the UK. The visa renewal process started around October 2019. Understandably, the claimant found this a stressful process and had concerns about whether, if the application had not been made by December, there was a risk that relevant people would be preoccupied with other matters. There was an issue about BT’s licence with the building which was in some way related to the visa application and needed to be resolved before the application could be made.[30]On 14 November 2019, another manager, Lindsay Ferguson, was critical of the claimant in front of colleagues for raising the same question as on two previous occasions. Although Craig Warner had supported the claimant on a previous occasion, he did not do so on this further occasion. When the claimant raised his lack of support with him at a later meeting, Craig Warner said words to the effect that the claimant deserved it.[31]We have seen emails that show that, from 22 November 2019, Craig Warner was chasing progress on the claimant’s visa application with those responsible for making the application. He escalated concerns about the visa application, at the claimant’s request, to more senior managers on 5 December 2019.[32]On a date which the claimant placed in late October or early November and Bernice Iyanda placed as in December, the claimant alleges that Craig Warner made a joke about the claimant being deported. The claimant could not recall whether anyone else was present on the call when the joke was made. Bernice Iyanda recalled this occurring in a conversation between her, the claimant and Craig Warner. Craig Warner has consistently denied making such a joke, throughout the respondent’s internal processes and in these employment Tribunal proceedings.[33]The claimant and Bernice Iyanda have been consistent in the essentials of the allegation, throughout the internal processes and at this Tribunal. It was suggested by the respondent in submissions that Bernice Iyanda had an axe to grind against the respondent, having brought her own Tribunal claim against the respondent, complaining about conduct by Craig Warner. That claim settled. We reject the suggestion that Bernice Iyanda gave evidence in these Tribunal proceedings in support of the claimant because of a personal vendetta against Mr Warner and/or the respondent. Bernice Iyanda continues to be employed by the respondent, having long service with BT and the respondent. She had only known the claimant through working with her for around six months. Although she and the claimant have remained in touch, having certain experiences in common, we find that theirs is not a close friendship and Bernice Iyanda found it difficult to come to the Tribunal and give evidence against her employer.[34]We consider it entirely possible that Craig Warner genuinely does not remember making the alleged comment because there was no obvious reaction when he made the comment and what he may have regarded as a light-hearted comment would not have had any great significance for him. We do not find that Craig Warner has deliberately lied about this in the internal process or these Tribunal proceedings. We accept that Craig Warner was supportive in relation to the claimant’s visa application, but do not consider this precludes the possibility of him making a “joke” about the claimant being deported.[35]We do not consider that the lack of obvious reaction at the time from the claimant and Bernice Iyanda undermines the credibility of their evidence. It is not uncommon for people who are discriminated against not to react at the time, or often at all, despite feeling hurt and upset, particularly where the discrimination is from someone in a senior position to them. The claimant first raised this in her grievance dated 14 February 2020 (p.130). We do not consider that the disparity in dates between the claimant and Bernice Iyanda undermines the credibility of their evidence about the essentials of the comment made. We accept the evidence of Bernice Iyanda that she was present on a call where Craig Warner made the alleged comment. We prefer the evidence of Bernice Iyanda and the claimant in finding that Craig Warner did make a comment as alleged, “joking” about the possibility of the claimant no longer being in the country when something needed to be done in the New Year. We do not find any evidence to suggest that he intended to cause hurt at the time. We consider that Bernice Iyanda, in describing him saying it joking, when interviewed in the grievance proceedings, was likely to be correct in her perception of his intention.[36]We accept the claimant’s evidence that she was shocked and felt humiliated when Craig Warner made the comment, although she said nothing at the time. We find that the claimant was finding the visa application process very stressful at the time the comment was made. The “haha” in the claimant’s message to Craig Warner when she later wrote that her visa had been approved (p.202), does not suggest to us that the claimant found the visa process a laughing matter. It is not clear to us that “haha” was intended as a laughing reaction but, even if it was, the situation once the visa was granted was very different for the claimant than when she was anxiously awaiting the submission of her application and decision on this.[37]The visa application was submitted on time and the claimant’s visa was duly granted.[38]The claimant was to do a presentation on 12 December 2019 in the absence of Craig Warner. She sent him a copy of this and they had a conversation about it on 10 December. The claimant was on leave on 11 December. We find that the claimant was expecting, after the conversation, only for Craig Warner to insert a service slide into the presentation. However, Craig Warner sent her edits and notes which she was not expecting on the afternoon of the 11 December.[39]The claimant did the presentation on 12 December 2019. David Brown, who was in the audience for the presentation, gave negative feedback about the claimant’s performance to Craig Warner. His criticism, set out in his witness statement, is partly about the structure, into which Craig Warner had an input. His criticism is partly about the claimant not appearing to understand the product and not being able to talk about it in a meaningful way.[40]We find that Craig Warner received some negative feedback about the claimant from other managers at various times. This included negative feedback from Matthew Dent and from Jo Koroma. Matthew Dent fed back that he had left calls delivered by the claimant feeling confused with the conversation that had taken place, not knowing if statements being made were questions or points on progress or update and that he was often unclear on what the claimant was doing. On a couple of calls, Jo Koroma felt that the claimant did not really understand what she was being asked to do and, rather than share the call, was asking questions instead of finding solutions giving people actions or picking up the actions from last time (p.853).[41]On 10 January 2020, the claimant and Craig Warner had a conversation during which the claimant alleges that Craig Warner told her that her confidence was at a band E rather than a band D level. It is agreed that there was a reference to the claimant performing at band E level but a dispute as to whether this was in reference to the claimant’s confidence being at band E level. It is not necessary for us to make a finding in relation to this dispute.[42]On 20 January 2020, Joanna Burke sent an email to Craig Warner, passing on feedback about the claimant. She wrote: “while I appreciate it takes time for people to get up to speed, the feedback from my team is that every time they find themselves on a call with Fignola they are repeating the same thing. With the team as busy/juggling as much as they are right now, this really isn’t the best use of their time.”[43]We find that, if Craig Warner tried to feedback to the claimant concerns raised by other managers, he did not do so in a clear way.[44]On 29 January 2020, the claimant went on a work visit to Belfast. In the evening, she had dinner with Craig Warner, Matthew Dent and Bernice Iyanda. The allegation in the agreed list of issues is that Craig Warner stated that he believed the absence of top-level black swimmers was “because of class”. The claimant’s witness evidence is that she mentioned that she could not swim and did not like swimming because of her hair and how that was quite a common reason in the black community and that Craig Warner then said “I thought it was because of class”. Bernice Iyanda’s witness evidence is that they were discussing sports, and Bernice Iyanda mentioned about there not being many black swimmers especially at a high standard in the likes of the Olympics and, when asked why, explained that it was because of an African belief about a mermaid figure who will come and take you into the water and you will never be seen again. She gave evidence that the claimant then mentioned that it was because their hair was brittle and the chlorine affects it, to which Craig Warner said “oh I thought it was to do with class.” Matthew Dent cannot recall Craig Warner making such comment. Craig Warner denies making such a comment. He accepts that there was a discussion about swimming and the claimant mentioned about chlorine in swimming pools affecting the hair of black people and that there was a conversation about the relative lack of elite black swimmers. Craig Warner says that he referred to a tweet he had seen relating to the NFL which said that it is not unusual for elite black NFL players to be unable to swim and that one explanation had been that some players had progressed to the top of their sport from underprivileged backgrounds where swimming either was not encouraged or simply was not available.[45]We prefer the evidence of the claimant and Bernice Iyanda, in finding that Craig Warner made a comment about black people not swimming “because of class”. Although they did not react at the time, we accept that they were both very offended by the comment and, therefore, more likely to remember it than Matthew Dent, to whom it would not have the same personal meaning. We find that the claimant and Bernice Iyanda took the comment as equating black people in general with people of low class. We find that Bernice Iyanda was genuinely upset when giving her evidence about this to the Tribunal, commenting “I’ve got as much class as anyone else.” For the claimant, the comment had resonances of segregation in the US; she referred in her evidence to Rosa Parks and to swimming pools being drained if a black person had swum in them. The claimant wrote her first account of the event just over two weeks after the incident, in her grievance dated 14 February 2020 (p.130). She has been consistent in her allegation about the essential elements of this allegation in the internal process, in the claim form and in her evidence to this Tribunal. Bernice Iyanda gave evidence supporting the claimant’s account in the internal grievance proceedings and in these Tribunal proceedings.[46]We consider that the comment made by Craig Warner may have resulted from Craig Warner thinking about the NFL tweet he had seen but he did not, at least initially, articulate it in this way; the comment not coming out as a theory about a link with social deprivation in some cases but instead coming out as equating black people with people of low class. We find that Craig Warner may have gone on to refer to some NFL players being unable to swim in explanation of his comment. However, we find it more likely than not, that he made the reference to black swimmers and class, before doing this. Bernice Iyanda thought he may have made some comment about affordability following the reference to class. It would not be surprising if the claimant and Bernice Iyanda did not recall what was subsequently said, due to shock at the comment about class. We do not find that Craig Warner made the comment about class intending to offend. It may be that he had in mind, as he made the comment, what he had read on Twitter. It is possible that he does not recall making a comment about class.[47]On 30 January 2020, there was a conversation between the claimant and Craig Warner, during which Craig Warner made the remark “fake it until you make it”. There was also a conversation about Nazis and positive intent. There is a dispute about exactly what was said in this conversation but we do not find it necessary to make any further findings of fact about this.[48]On 31 January 2020, the claimant sent to Mr Warner an email in which she wrote that she was feeling that nothing she did was good enough (p.195). She wrote that she had appreciated Craig Warner’s feedback but wrote that recently, she had been feeling that her best in the role had not been good enough, that she felt judged and was not given the space to speak or given the benefit of the doubt. She gave some specific examples. She wrote that, even when she took on Craig Warner’s advice and changed her way of working, it was still not good enough.[49]Craig Warner responded later that day. He referred to having told the claimant the day before that she was right where he expected her to be. He wrote about trying to find the right balance for feedback and suggested they discuss the best way to make sure they were communicating well and leaving with a common understanding. He suggested they catch up on Monday.[50]Craig Warner sought advice from David Brown, forwarding to him the claimant’s email.[51]David Brown replied on 3 February (p.127). His email began: “my opinion, with some interaction, is that Fignola is struggling to perform in the role. She would benefit from a coaching plan and you would benefit from case manager support.” He expressed the view that the claimant had been afforded opportunity whilst she learned the ropes and, having done this, was still not a material contributor. His comments suggested there were problems with the way Craig Warner was managing the claimant, as well as with the claimant’s performance. He wrote that, whilst Craig Warner was giving the claimant things to work on, he was not necessarily helping her to work towards a point where things are satisfactory for her grade and role. He wrote: “my advice would be start with the end in mind - be clear on her performance (WTD, GW), be clear on the standards for How and What (the level of a D, her role), and support her leading on the actions to improve in a formal structured coaching plan.”[52]Around this time, David Brown was discussing a performance plan for Craig Warner with Craig Warner. There is some inconsistency in the evidence about when Craig Warner was on this performance plan. David Brown said in evidence this was September 2019 but Craig Warner said subsequently that he had checked this and the plan started in February 2020. From what David Brown said when interviewed by Maria Fletcher on 2 April 2020, Craig Warner was on a performance plan at that time. David Brown had concerns about Craig Warner’s ability to be a manager, which he expressed at the grievance hearing. He considered that Craig Warner gave the claimant mixed messages about her performance (p.869) It appears that Craig Warner was on a plan over a number of months. We have not seen this plan. The claimant asked for disclosure of a performance plan but the request was in respect of one proposed in the grievance outcome internal document, which never came to fruition, so we do not conclude that the respondent was not telling the truth when they said that this plan did not exist. Based on Craig Warner’s evidence, we find Craig Warner was angry when a plan was proposed but he came to find it helpful later.[53]David Brown thought that both the claimant and Craig Warner would benefit from having some form of structure in place regarding the claimant’s performance. He felt that Craig Warner needed to start writing down the standard he expected from the claimant in order to be clear about the standard that she was operating at and to then have an open dialogue with her so she could think of action points to meet those expectations. He considered Craig Warner needed to ensure he provided the claimant with the necessary support so that improvements in her performance could be made.[54]On 3 February 2020, there was a Skype call between the claimant and Craig Warner. Craig Warner told the claimant in this conversation that he may need to put her on a coaching plan. This was confirmed on 11 February 2020 when he said he would put her on an informal coaching plan. He raised with the claimant negative feedback he had received from others. We have not seen any contemporaneous notes of these conversations. However, we have referred previously to evidence which shows that Craig Warner had, prior to these conversations, received some negative feedback from other managers about the claimant.[55]Craig Warner also told Bernice Iyanda around January 2020 that he was putting her on a coaching plan.[56]On 12 February 2020, Craig Warner edited the claimant’s work about NOI extension. It is common ground that Craig Warner edited the claimant’s emails at times.[57]On 14 February 2020, Craig Warner sent the claimant an outline coaching plan (p.181). The title was “improving performance - informal action plan.” It appears that the terms performance plan and coaching plan were used interchangeably. Craig Warner had completed comments on the claimant’s performance, giving examples. His covering email (p.180) said that they would discuss it on Tuesday, to go through, clarify understanding and create the action plan between them. He asked her to think about actions she would propose and the support she would like from him and anyone else to achieve her goals. The end of the draft plan included the statement: “I understand that this action plan has been drawn up to assist me to improve my performance to meet the required standard for my role. I have been made aware that if my performance does not improve then it may lead to the next stage of the Improving Performance process being initiated.” This indicated it was to be signed by the claimant. The manager was also to sign it to confirm they would give reasonable support and encouragement to assist in the achievement of the improvement plan.[58]The claimant correctly understood from this declaration that, if the plan did not lead to an improvement in her performance, then the formal Improving Performance process was likely to be started. Ultimately, this could have led to the claimant’s dismissal.[59]The claimant, by an email dated 14 February 2020 (p.180), declined to attend the meeting to discuss the plan, saying she had been advised externally not to attend that meeting until certain matters were resolved. She told the Tribunal that she had received this advice from ACAS.[60]On the same date, the claimant presented a formal grievance (p.130). The grievance included the allegations about the visa and swimming/class comments and a complaint about being put on a coaching plan. It did not include a complaint about her pay.[61]On 17 February 2020, the claimant started a period of sick leave due to stress and anxiety. Maeve Clancy was allocated to be her duty of care manager. Fiona Bannister oversaw the grievance and absence process.[62]Maria Fletcher dealt with the grievance. She issued her outcome on 22 April 2020. She partly upheld the grievance in relation to inappropriate use of language (p.330). She did not make a clear finding in what she wrote at the time that he did not make those comments. We consider, based on what she wrote at the time, which is likely to be a better indicator of her thought process than her later reflections in evidence to this Tribunal, that either: she found that he had made those comments but excused them, on the basis that no malice was intended in relation to the swimming/class comment and that he had supported the claimant with her visa; or, she did not make a finding as to whether he made the comments because she thought it did not matter because of those factors.[63]Craig Warner was informed of the outcome. This included a recommendation about training which he should undertake. Maria Fletcher had put in her draft reasoning a recommendation that he be placed on a performance plan but this was removed from the final recommendation.[64]By an email dated 22 April 2020, the claimant was informed that her pay would reduce to half pay from 15 May 2020.[65]In accordance with the respondent’s policy, the claimant was entitled to 3 months (92 days) full pay then 92 days half pay during sick leave in a two-year rolling period. The respondent had a discretion to increase the period of full pay if the absence was due to an injury at work.[66]The claimant began early conciliation with ACAS on 22 April 2020.[67]The claimant contacted the HR helpdesk to ask if her sick pay would be extended. Fiona Bannister advise the HR helpdesk that her sick pay would not be extended.[68]The claimant appealed the outcome of the grievance (p.451). From her letter, it appears that she understood that Maria Fletcher had found that the visa and swimming comments had been made but that this did not constitute harassment. She argued in her appeal letter that it should have been found to constitute harassment.[69]The claimant made a further request to extend her full pay.[70]A first-line absence review was held with Maeve Clancy on 6 May 2020. The claimant did not go into detail about the reasons for her absence because of her grievance. She said it would help if she was moved to a different manager and a different part of the company. We find that there had been a delay in holding the firstline absence review because of the claimant’s grievance and that this was arranged once the claimant had received the outcome of the grievance.[71]On 14 May 2020, Theresa Hyde refused the claimant’s request for an extension of her company sick pay. She wrote that they had investigated the allegations and come to the conclusion that there was no responsibility on the part of the company so it was not a work-related injury.[72]We accepted the evidence of Theresa Hyde that sick pay at full pay level is only extended in exceptional circumstances. She gave an example of where an engineer had been struck by a vehicle whilst working for the respondent and was poorly for a long period of time; she had decided that this was an exceptional circumstance warranting an extension of company sick pay.[73]On 21 May 2020 a second line absence review meeting was held with David Brown. David Brown looked into alternative roles for the claimant. He responded to various enquiries the claimant had raised. On 29 May 2020, he informed the claimant, after a discussion with HR, that her request for an extension of sick pay was still refused.[74]The ACAS early conciliation certificate was issued on 2 June 2020.[75]The claimant’s trade union representative asked on 4 June 2020 for the claimant’s sick pay to be extended. He renewed this request on 18 June and, on 19 June, Theresa Hyde agreed to extend the claimant sick pay for one month. She wrote that this was a “goodwill gesture”, acknowledging there had been delays from both sides.[76]The claimant’s claim to the Tribunal was presented on 11 June 2020.
Law
[77]On 18 June 2020, the claimant was informed that her end of year performance was “good work”. We understand that this related to the year 19/20, part of which had been in the claimant’s previous role.[78]The grievance appeal was dealt with by Shweta Taneja. She held a grievance appeal hearing on 15 July 2020 and sent an outcome to the claimant on 26 January 2021. She upheld Maria Fletcher’s decision, although we did not find her evidence clear as to what she thought Maria Fletcher had decided. It is not clear from the outcome letter that Ms Taneja came to the view that Craig Warner had not made the alleged comments about the visa and swimming/class. Her evidence to the Tribunal about the visa, was inconsistent as to what she found. In relation to the swimming/class comment, she said she found this had not happened.[79]Prior to managing the claimant, Craig Warner’s experience of managing direct reports was limited. In 2013, he had two direct reports, both of whom were white males. He then managed a team in India with two Indian and one white male reports. His current team is all white. He did not get the point of having coaching plans with any of his direct reports other than the claimant and Bernice Iyanda.[80]In David Brown’s immediate team at the time of 15 to 20 people, there were four people on coaching plans: Craig Warner, who is white, one other white employee, the claimant and Bernice Iyanda. Most of the immediate team were white. In his wider team of around 150 people, he estimated that 10% of employees were black. Submissions[81]Both representatives made oral submissions. We summarise the submissions.[82]Mr Searle, on behalf of the respondent, submitted as follows. In relation to the complaints of direct race discrimination, he submitted that the claimant did not satisfy the initial burden of proof on her. There was no evidence that the claimant had been treated less favourably than a real or hypothetical comparator. Mr Searle accepted the possibility that the burden shifted in relation to the complaint about the coaching plan. Mr Warner had only two direct reports, both of whom were black and both were on coaching plans. Mr Searle submitted that, looking to the respondent for an explanation, the evidence was clear that the claimant had been promoted beyond her capabilities or was at a time where things were difficult and she was struggling and in a bedding in period. In relation to the complaint about the salary, Mr Searle submitted that the decision to pay £38,000 was clearly not motivated by the claimant’s race.[83]In relation to the complaints of harassment, there was a clear dispute as to what was said. In relation to the visa comment, Mr Searle invited the Tribunal to prefer the evidence of Mr Warner and referred to evidence of Mr Warner’s help to get the visa. Mr Searle questioned whether Ms Iyanda was a reliable and independent witness. Alternatively, he submitted that the comment, if said, was not unwanted because it was part of a conversation the claimant and Mr Warner were having. The comment was innocent.[84]In relation to the alleged comment about class, Mr Searle submitted that, if the Tribunal found it was said, it was not unwanted conduct in the context of the conversation. At the time, no offence was taken. In deciding whether the conduct had the requisite effect, Mr Searle accepted that the claimant was upset and remains upset and he commented that he did not know what she was upset about and did not know if this was fed into by her mental state. Mr Searle referred to the context of the conversations and the claimant making a joke about the visa. It had to be reasonable for the conduct to have the requisite effect. If the Tribunal thought the claimant was unreasonable to take offence, there would be no harassment within the meaning in section 26. Mr Searle referred to the case of Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336 EAT for a reminder that the Tribunal must apply its mind to the three elements of liability for harassment.[85]Mr Searle submitted that, in relation to the alleged comment about class, if the comment was made, it was about social inequality and not about racial inequality and it was not related to race. Mr Searle referred to the case of Tees Esk and Wear Valleys v NHS Foundation Trust v Aslam [2020] IRLR 495 EAT, submitting that the Tribunal needed a basis on which to say that class equated to race.[86]In relation to the complaint of victimisation, the respondent accepted that the 14 February email was a protected act. Mr Searle submitted that it was a huge leap to say that the decision three months later not to exercise discretion was in some way linked to that protected act.
Conclusions
[87]In relation to jurisdiction, Mr Searle submitted that acts were separate and discrete involving different people and different times so the time limit must be applied. He said he did not take the issue of jurisdiction away from the Tribunal but did not push too hard on it.[88]On behalf of the claimant, Ms Aly submitted that it was necessary to understand the context, which was why there was so much evidence not directly relevant to the issues. She confirmed that there was no actual comparator for the complaints of direct discrimination.[89]Ms Aly submitted that there was no evidence that the role was beyond the claimant’s capability and she was not told it was a development role. Ms Aly submitted that it was disingenuous of the respondent to say that there was poor performance, divorced from poor management. She submitted that putting the claimant on a coaching plan was completely unacceptable. In relation to the salary, she submitted that the order of the emails did not lie and Louise Sutherland plucked a figure from thin air without a comparison first. She questioned why no one picked up the reference to a comparison with other E bands made by David Brown. She suggested the story about the typo had been invented. The claimant’s evidence was that she had conversations with people about there being a 5% increase on the lateral move and 10% for promotion. This was backed up by the evidence of Mr Tait. When the claimant made a lateral move, she got a 5% rise. Ms Aly submitted that the troubling email about the bands was enough to shift the burden of proof.[90]In relation to harassment, Ms Aly commented that the respondent had a difficult case in suggesting that the conduct was not unwanted. She submitted it was obvious the comments were made. The only person who denied the comments were made was Mr Warner. In relation to the visa comment, being supportive with the visa application did not preclude him making the comment. Ms Aly submitted that it was a difficult argument to say that class was not to do with race. They were talking about class and black people.[91]In relation to the complaint of victimisation, Ms Aly invited the Tribunal to look at the wider circumstances. The absence review had been delayed for two months for no particular reason, because of the grievance.[92]Ms Aly made detailed submissions about the credibility of the evidence of the various witnesses which we do not seek to summarise.[93]In relation to the complaint of direct discrimination about salary, the claimant said she was aware of people treated differently and Mr Tait agreed managers could be involved in salary setting. Mr Warner said one of his team had been making around £40,000 and was white. In relation to the complaint about coaching, David Brown had a 20 person team with four on a plan, including two black employees. The evidence was enough to shift the burden of proof. The respondent had not justified its behaviour. A lot of the capability points were down to Mr Warner’s poor management. The claimant was not told about many of the apparent performance issues until 11 February.[94]In relation to harassment, Ms Aly submitted that the Tribunal must find in the claimant’s favour. The evidence was overwhelming that the comments were made. Both comments were offensive and clearly unwanted. The respondent was clutching at straws by saying it was not unwanted. Ms Aly submitted that, once the Tribunal found that the comments were made, there should be no difficulty in finding that the comments were made with the requisite purpose or had the requisite effect. It was reasonable for the comments to have that effect. They had a severe effect on the claimant.[95]In relation to victimisation, Ms Aly submitted that we should look at the wider issues; the sickness absence policy and what happened.[96]In relation to jurisdiction, Ms Aly submitted that the same manager was involved and it was a continuing act. The only act which could arguably be out of time was the complaint about salary.
Law
[97]The law on direct discrimination is contained in section 13(1) of the Equality Act 2010 (EqA). This provides: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. Section 4 lists protected characteristics which include race. “Race” is defined by section 9(1) as including colour, nationality, ethnic or national origins.[98]Section 23(1) provides that “on a comparison of cases for the purposes of section 13….there must be no material difference between the circumstances relating to each case.”[99]Section 39(2) provides, amongst other things, that an employer must not discriminate against an employee by subjecting that employee to a detriment.[100]The law on harassment is contained in section 26 EqA. The relevant parts of that section provide: “(1) A person(a) (A) harasses another(b) (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. …… (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.” Subsection (5) lists relevant protected characteristics which include race.[101]Section 27 EqA deals with victimisation. This provides: “(1) A person(a) (A) victimises another person(b) (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.”[102]When considering whether a claimant was subjected to detrimental treatment because they have done a protected act, the Tribunal must ask: what, consciously or subconsciously, motivated the employer to subject the claimant to the detriment? In Chief Constable of West Yorkshire Police v Khan 2001 ICR 1065, the House of Lords rejected a “but for” approach to victimisation; the Tribunal had to identify ‘the real reason, the core reason, the causa causans, the motive’ for the treatment complained of.[103]Section 136 EqA provides: “(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.”[104]Case law reminds us that it is very unusual to find direct evidence of discrimination. Normally the Tribunal’s decision will depend on what inference it is proper to draw from all the relevant surrounding circumstances, which will often include conduct by the alleged discriminator before and after the unfavourable treatment in question. When considering whether the claimant has satisfied the initial burden of proof, the fact that a claimant has been subjected to unreasonable treatment is not, of itself, sufficient as a basis for an inference of discrimination so as to cause the burden of proof to shift. Conclusions Direct race discrimination On 1 August 2019, the respondent awarded the claimant a salary of £38,000[105]The claimant was appointed to her new role, which was a promotion, at a salary of £38,000. This was more than her salary in her previous role, and towards the lower end of the salary band for band D, which was £34,000-£68,000. She had asked for £41,200.[106]The initial burden of proof is on the claimant to prove facts from which we could conclude that there was less favourable treatment because of race (her AfroCaribbean ethnic origin). There is no actual comparator. The comparison is made with a hypothetical white comparator who is otherwise in the same material circumstances as the claimant. We conclude that material circumstances are the band and salary the claimant had prior to the promotion and the new role.[107]We accept that the claimant came, at some point, to genuinely believe that she would have received a higher salary on promotion had she been white. We also recognise that salary structures with wide and overlapping salary ranges for bands, as in this case, and where there is discretion on the part of the employer as to where to place the employee within the salary band on joining, can give rise to the potential for discriminatory treatment. The Equality and Human Rights Commission Code of Practice on Equal Pay (2011) lists “long pay scales or ranges” and “overlapping pay scales or ranges” as factors which pose risks in terms of potential non-compliance with an employer’s legal obligations. This Code relates to equal pay for men and women but we consider the same risk factors could equally give rise to the risk of discrimination in pay because of race. However, we must consider the evidence before us in this case and, on the basis of that evidence, we conclude that the claimant has not proved evidence from which we could conclude that she had been less favourably treated because of race in relation to her salary. We had no evidence of salaries and ethnicity of comparable employees to the claimant. The claimant did not satisfy us that there was a custom and practice of employees receiving a 10% pay rise on promotion and a 5% rise on a lateral move (see paragraph 24). On the basis of emails we saw (see paragraphs 15- 20), the respondent was trying to set a salary consistent with others in a similar position.[108]If we have jurisdiction to consider this complaint, having regard to the relevant time limit, we conclude that this complaint of direct race discrimination is not well founded. We will return to jurisdiction after dealing with the substantive merits of the complaints. On 3 February 2020, Craig Warner told the claimant “maybe I need to put you on a coaching plan” On 11 February 2020 Craig Warner informed the claimant that he was going to place her on an informal coaching plan[109]Both parties agreed that this was, in effect, one complaint, although listed as two complaints in the agreed list of issues. We, therefore, deal with it as one complaint about the claimant being told she was being put on a coaching plan.[110]The initial burden of proof is on the claimant to prove facts from which we could conclude that there was less favourable treatment because of race (her AfroCaribbean ethnic origin). There is no actual comparator. The comparison is made with a hypothetical white comparator who is otherwise in the same material circumstances as the claimant.[111]We conclude that the claimant has satisfied this initial burden of proof because of the following matters. The statistics (albeit based on a small pool of around 15-20 people) show that black people were considerably over-represented in the number of employees in David Brown’s immediate team who were on coaching plans. The claimant and Bernice Iyanda were the only black employees Craig Warner had directly managed (albeit from a small total number of direct reports and that he had also managed employees of Indian origin) and they were the only direct reports he was intending to place on coaching plans. Craig Warner had commented to the claimant only a few days before he said he would put her on a coaching plan that she was right where he expected her to be (see paragraph 49) which, on the face of it, is inconsistent with her performance being such that a coaching plan was appropriate.[112]The burden, therefore, shifts to the respondent to satisfy the Tribunal that there was no unlawful race discrimination.[113]Craig Warner had appointed the claimant and thought she had big potential (see paragraph 28). We conclude that both David Brown and Craig Warner thought the claimant had the potential to succeed in the role, but had some concerns about her current performance.[114]We found that other managers had given negative feedback to Craig Warner about the claimant’s performance at times (see paragraphs 40 and 42). Lindsey Ferguson was openly critical of the claimant when she raised the same question in a meeting as she had raised twice before (see paragraph 30). David Brown had concerns about the claimant’s performance (see paragraphs 39 and 51).[115]David Brown also had concerns about Craig Warner’s management ability. He considered Craig Warner was giving the claimant mixed messages and not giving the claimant the work she need to be given to be able to perform at band D level (see paragraphs 51-52).[116]David Brown saw an informal performance plan (or coaching plan) as a useful structure to improve the performance of the claimant by, amongst other things, improving the management of the claimant by Craig Warner (see paragraph 53). David Brown made the suggestion for the use of a plan and Craig Warner picked up on this suggestion. We conclude that the reason the use of a plan was suggested, was because of concerns about the claimant’s performance, which included concerns that Craig Warner was not managing the claimant in a way which allowed her to demonstrate that she could perform at Band D level.[117]We conclude that the respondent has satisfied us that the claimant’s race was not a material reason for the suggestion that the claimant be put on an informal coaching plan. We conclude, therefore, that this complaint of direct race discrimination is not well founded. Harassment related to race On 29 January 2020, Craig Warner stated he believed the absence of top-level black swimmers was “because of class”.[118]We found that Craig Warner did make the alleged comment.[119]We conclude that the comment was related to race. They were talking specifically about black people and swimming. Craig Warner’s comment was specifically about why many black people do not swim. The comment, therefore, related to race.[120]We found that the claimant was very offended by the comment (see paragraph 45). We conclude that the comment was unwanted.[121]We did not consider there was evidence showing that Craig Warner intended to cause offence. We consider the comment may have resulted from Craig Warner thinking about the NFL tweet he had seen but he did not, at least initially, articulate it in this way; the comment not coming out as a theory about a link with social deprivation in some cases but instead coming out as equating black people with people of low class. We conclude that the comment did not have the purpose of violating the claimant’s dignity or creating a hostile, intimidating or offensive environment for the claimant.[122]We conclude, however, that the comment had the effect of violating the claimant’s dignity or creating a hostile, intimidating or offensive environment for the claimant. Although this was said at a dinner, outside work hours, the respondent has not argued (rightly in our view) that the comment was made outside the course of Craig Warner’s employment. The claimant was having dinner with Craig Warner and the others because they were all in Belfast for a work event. The claimant had to continue working with Craig Warner. She understood Craig Warner to be equating black people with people of low class and the comment had a particularly hurtful impact on her because of the history of segregation in the US. We conclude that the comment had the effect of violating the claimant’s dignity and it was reasonable for the comment to have that effect, taking into account the claimant’s perception and all the circumstances. The context of a conversation about why many black people do not swim, and why there are few black elite swimmers, does not mean it was not reasonable for the claimant to feel that her dignity had been violated by the comment.[123]We conclude, for these reasons, that this complaint of harassment related to race is well founded. In late 2019, Craig Warner made a joke about the claimant being deported whilst a visa application was ongoing[124]We found that Craig Warner did make the alleged comment.[125]We conclude that the comment was related to race i.e. the claimant’s US nationality and, therefore, the need for the claimant to have a visa to remain working in the UK. We conclude that the comment was not related to the claimant’s AfroCaribbean ethnic origin. It was not because of her ethnic origin, but because of her nationality, that she required a visa.[126]We found that the claimant was shocked and felt humiliated when Craig Warner made the comment (see paragraph 36). We did not accept the argument that her “haha” in a message when her visa was granted, meant that she treated the visa process in a light hearted way. We found that she found the process very stressful.[127]We did not find evidence that Craig Warner had the purpose of violating the claimant’s dignity or creating a hostile, intimidating or offensive environment for the claimant by making the comment. We consider it likely it was an ill-judged “joke”, made without proper consideration of its likely effect on someone whose right to remain in the UK rested on a successful visa application. We conclude, however, that the comment had the requisite effect for harassment and it was reasonable, taking into account the perception of the claimant and all the circumstances, to have this effect.[128]Subject to the issue of jurisdiction, having regard to relevant time limits, we, conclude that this complaint of harassment related to race is well founded. We return to the issue of jurisdiction after dealing with the substantive merits of all the complaints. Victimisation[129]The complaint relates to the respondent’s refusal to exercise its discretion under the Sickness Absence Policy to refuse to pay the claimant full pay from 15 May 2020. The claimant argues that this was detrimental treatment because the claimant had done a protected act i.e. the grievance of 14 February 2020.[130]The respondent concedes that the grievance was a protected act. We consider this concession was correctly made.[131]The claimant was subjected to a detriment in having her pay reduced to half pay from 15 May 2020.[132]The remaining issue is whether the reduction in pay was because the claimant had presented a grievance.[133]We consider this to be an appropriate case in which to move straight to the reason why (assuming, without deciding, that the claimant would succeed in proving facts from which we could conclude there was unlawful victimisation). We conclude that the reason the claimant’s pay was reduced was because this was in accordance with the respondent’s policy that sick pay would reduce from full pay to half pay after 92 days’ absence in a 2 year rolling period. The claimant had reached this point in her absence and the respondent was acting in accordance with its policy in reducing her pay. There was a discretion to extend full pay if the absence was due to a work-related injury, but the respondent did not conclude that the absence was for such a reason. Extensions of full pay were exceptional. There was no evidence before us of the granting of extensions in circumstances comparable to those of the claimant, whether or not other employees on extended sick leave had presented a grievance.[134]From the claimant’s answers in cross examination, it appeared that she considered it victimisation to not extend sick pay because, but for the grievance, the claimant would have had a review meeting earlier, which may have led to her returning to work before she reached the stage of her pay being reduced. The case law is clear that a complaint of victimisation will not succeed on the basis that “but for” the protected act, the claimant would not have been subjected to the detriment. In deciding whether the detrimental treatment was because of the protected act, we must consider what, consciously or subconsciously, motivated the employer to subject the claimant to the detriment.[135]We conclude that it was the respondent’s policy on sick pay and the respondent’s view that this was not an exceptional case, involving absence due to a work-related injury, that motivated the respondent to refuse to extend the claimant’s period of sick pay at the level of full pay. We, therefore, conclude that the complaint of victimisation is not well founded. Jurisdiction[136]The agreed list of issues included issues about whether the complaints were presented in time and, if not, whether it would be just and equitable to extend time for presentation of the claims.[137]The claimant notified ACAS under the early conciliation procedure on 22 April 2020. A complaint about anything occurring before 23 January 2020 would, therefore, be presented out of time, unless the act of discrimination formed part of a continuing act of discrimination, ending with an act in respect of which the complaint was presented in time.[138]There are two complaints which are potentially out of time: the complaint of direct race discrimination about the award of a salary of £38,000; and the complaint of harassment related to race about the “joke” about the claimant being deported whilst a visa application was ongoing.[139]In relation to the complaint about salary, we found that this complaint was not well founded on its merits. We conclude that it does not form part of a continuing act of discrimination, since it was not an act of discrimination. It was also different in nature to the other complaints alleged. We do not consider we have any basis on which to conclude that it would be just and equitable to consider this complaint out of time. We, therefore, conclude that we do not have jurisdiction to consider this complaint. Had we had jurisdiction, we would have concluded that the complaint was not well founded, for reasons previously given.[140]In relation to the complaint of harassment about the visa “joke”, we conclude that this formed part of a continuing act of discrimination with the comment about black swimmers and class. The person making the offending comments was the same: Craig Warner. The complaint in relation to the comment about black swimmers and class was presented in time. The complaint in relation to the visa “joke” is also, therefore, presented in time. If we had concluded it did not form part of a continuing act of discrimination, we would have concluded it was just and equitable to consider the complaint out of time. The claimant raised this in internal proceedings, once she had other concerns, including it in the grievance dated 14 February 2020 (unlike the complaint about salary which was not raised in the initial grievance, but only during the appeal process), and presented her Tribunal claim after the unsuccessful outcome to the grievance. We conclude that we have jurisdiction to consider this complaint of harassment related to race.
Introduction
[1]The respondent is ordered to pay to the claimant compensation of £17,251 plus interest of £3,713 for the complaints of harassment related to race upheld in the Tribunal’s judgment on liability sent to the parties on 23 May 2022.[2]The Tribunal recommends that, within 2 weeks of the judgment being sent to the parties, a manager in the respondent organization, senior to David Brown and Shweta Taneja, should write to the claimant apologizing for the comments made by Craig Warner, which the Tribunal found to be harassment related to race, and apologizing for the poor way in which the parts of the grievance relating to these comments was dealt with.[1]This was a remedy hearing following a reserved judgment on liability sent to the parties on 23 May 2022. The Tribunal found that complaints of harassment related to race were well founded. The other claims were not upheld.[2]References to page numbers in these reasons are to pages in the Remedy Hearing bundle, unless otherwise stated.[3]References to “C(number)” are to paragraphs in the claimant’s witness statement for this remedy hearing.[4]References to “LD(number)” are to paragraphs in our judgment and reasons on liability. Issues[5]This hearing was to determine remedy for the successful complaints of harassment, which were as follows: 5.1. That, on 29 January 2020, Craig Warner stated he believed the absence of top-level black swimmers was “because of class”. 5.2. That, in late 2019, Craig Warner made a joke about the claimant being deported whilst a visa application was ongoing.[6]There was an agreed list of issues for remedy (p. 61). These were as follows: 6.1. To what remedy is the claimant entitled? 6.2. What are the claimant’s losses arising from any discriminatory acts? 6.3. What is the appropriate Vento band to apply in the circumstances? 6.4. Should the tribunal provide an award for aggravated damages? 6.5. Did the claimant suffer a personal injury as a result of the discriminatory treatment caused by the respondent? If so, what amount of damages is the claimant entitled to receive? 6.6. What, if any, declarations should the tribunal make? 6.7. What, if any, recommendations should the tribunal make? 6.8. Did the respondent breach the ACAS Code of Practice? If so, what uplift should be applied? 6.9. What, if any, interest should be awarded on any injury to feelings award?[7]In her fourth Schedule of Loss (pp.734-738) the claimant claimed financial losses relating to a reduction in pay and loss of pension benefit in May, June and August 2020 when she was on sick leave and an impact on pay in June 2021 because of having been on sick leave in the previous year. The claimant clarified in her witness statement that loss of pay in June 2021 related to receiving a lower bonus payment than would otherwise have been the case due to having been on sick leave.[8]The claimant also claimed compensation for personal injury, special damages relating to the cost of therapy and other medical costs, injury to feelings and aggravated damages. She claimed an uplift on compensation for failure to comply with the ACAS Code of Practice and interest on the awards.[9]In her witness statement (C73), the claimant asked for a public apology from the respondent for how she was treated and for the respondent to review their grievance and absence processes and procedures to prevent what happened to her from happening to someone else. In closing submissions, Ms Aly requested the Tribunal made a recommendation for an apology to be given to the claimant. Evidence[10]We heard witness evidence from the claimant, the claimant’s partner, Mr Hatham Rahman, and from Mr Stephen Tait, who had been the claimant’s trade union representative. We had a remedy hearing bundle of more than a thousand pages. We read only the documents referred to in the witness statements or which the representatives invited us to read. It appeared to us that many of the documents included in the remedy bundle were not relevant to the remedy issues we needed to decide. There were also substantial parts of the claimant’s 41 page witness statement which were not relevant to the remedy issues.[11]We had three medical reports. The first was from Dr Rastogi dated 6 November 2021. Dr Rastogi was instructed by the claimant to produce a report before the liability hearing and without first getting the permission of the Tribunal to call expert evidence. Permission was retrospectively given by Employment Judge Slater as set out in the Tribunal’s letter to the parties dated 13 December 2022. The second was from Dr Pilgrim dated 22 September 2022. Dr Pilgrim was instructed by the respondent, in accordance with case management orders proposed by the parties, which Employment Judge Slater took as being accepted by the Tribunal. Dr Pilgrim had a consultation by video conference with the claimant, after the Tribunal had promulgated its decision on liability. The claimant had an opportunity to ask Dr Pilgrim questions in writing following his report and we saw the questions and answers. The third report was by Dr Okon-Rocha dated 14 December 2022. This report was obtained by the claimant without first obtaining the permission of the Tribunal. Dr Okon-Rocha was asked to provide her professional opinion regarding the methods and methodology used by Dr Pilgrim to generate the findings in his report. The respondent, after Mr Searle had an opportunity to read the report, did not object to the Tribunal considering this report. This report, and the letter of instruction, were added to the documents considered by the Tribunal.[12]We accept that all three doctors are appropriately qualified to give expert evidence on the matters they were asked to comment on and, on the basis of the declarations signed by them, understood that their overriding duty was to the Court. Facts relevant to remedy[13]We rely on facts found in our judgment and reasons on liability.[14]We highlight some of those facts and also make additional findings of fact relevant to remedy as follows.[15]The claimant had taken anti-depressants for a period some time before 2015. She had another later period on anti-depressants, stopping in the summer of 2018. She did not take anti-depressants again until June 2020.[16]The claimant began working with Craig Warner as her manager on 1 August 2019.[17]The claimant was suffering from anxiety prior to the acts of harassment, which she attributes to conduct by Craig Warner which has not been found to be unlawful discrimination (see C6).[18]The first act of harassment (the visa “joke” about being deported) occurred in late 2019. We accept the evidence given by the claimant that she found this “joke” utterly humiliating and it made her feel deeply distressed. (C7). The visa process had already caused the claimant a great deal of stress and anxiety as everything she had built in the UK hung in the balance. She found it profoundly hurtful, humiliating and damaging to have this minimized and joked about by Craig Warner.[19]The second act of harassment (the comment relating to black people and swimming) occurred on 29 January 2020. We accept the evidence of the claimant in her witness statement as to how she felt when the comment was made (C12). She felt so shocked, hurt and upset that she did not know how to respond. She thought that, if Craig Warner thought the reason black people could not swim was because of class, he probably did not see her or her colleague, who was also black, as his equal. The claimant found Craig Warner’s lack of acceptance that the comment was made more humiliating and upsetting. The comment was particularly hurtful because the topic of swimming in the black community, specifically in the US, is linked with a painful history of racism, where pools would be drained if a black person stepped foot in them. This was the first time in the claimant’s career that she became aware that her skin tone could impact on how she was perceived in the workplace. It caused her to wonder, subsequently, when comments are made towards her in the workplace, whether it is because she is black. The claimant felt deeply hurt, humiliated and worthless as a result of the comment.[20]The claimant was sent a coaching plan by Craig Warner on 14 February 2020. The claimant declined to attend a meeting to discuss this and presented a grievance. The grievance included the allegations about the visa and swimming/class comments and a complaint about being put on a coaching plan.[21]The claimant began sick leave on 17 February 2020. She went to see her GP that day and was issued with a fit note, indicating that she was not fit for work for the period until 2 March 2020 due to stress and anxiety (p.657). She recounted to her GP that there was a history of bullying and racial discrimination at work. She continued to be issued with fit notes covering her absences up to and including 11 August 2020 (p.650).[22]We accept the evidence given by the claimant in her witness statement as to how she was feeling when off work (C23). In the first few weeks of being off work, the claimant barely left the house. She spent whole days in bed, unable to find the motivation to do anything. She soon started developing suicidal ideations.[23]The grievance outcome was given on 22 April 2020 (LD62). We accept the claimant’s evidence (C31) that her whole body started shaking uncontrollably when she read the conclusion that Craig Warner was not guilty of bullying and harassment.[24]The claimant began early conciliation with ACAS on the same day as the grievance outcome, 22 April 2020.[25]The claimant went onto half pay on 15 May 2020 (p.355). She was also on reduced pay in June and August 2020, but received full pay in July 2020.[26]The claimant concluded early conciliation on 2 June 2020 and presented her claim to the Tribunal on 11 June 2020.[27]We accept the claimant’s evidence that her mental health deteriorated further after receiving the outcome of the grievance (C35). Her suicidal ideations got a lot worse. She had a nightmare about witnessing her own suicide. In June 2020, the claimant reluctantly began to take anti-depressants (p.627). The claimant returned to work in August 2020.[29]The claimant reported to her GP on 24 September 2020 that she was feeling much better (p.628). The dose of anti-depressants was reduced.[30]The grievance appeal outcome was on 26 January 2021 (LD78) following an appeal hearing on 15 July 2020. We accept the claimant’s evidence (C37) that the outcome of the grievance appeal had a further adverse effect on her mental health and made her lose trust in her employer.[31]The claimant received a lower bonus in June 2021 than she would have done had she not been on sick leave in 2020.[32]On 1 October 2021, the claimant moved to a different role in the BT Group.[33]On 18 April 2022, the claimant resigned from the BT Group.[34]The Tribunal hearing on liability took place beginning 19 April 2022 and a reserved judgment and reasons was sent to the parties on 23 May 2022. The claimant gave evidence, which we accept, that the findings of harassment helped her recovery tremendously (C70).[35]The Tribunal finds, based on the claimant’s evidence, that the claimant was very distressed by what she considered to be disrespectful, bullying and humiliating conduct by her line manager, Craig Warner. This related to matters including the acts of unlawful harassment, but related to much other conduct not found to be unlawful discrimination. Examples of conduct which distressed the claimant but have not been found to be unlawful discrimination include: what the claimant considered to be Craig Warner’s failure to defend her during a call against what she considered to be unacceptable treatment by another manager (C6); Craig Warner’s conduct in relation to the claimant’s preparation for a team presentation (C8); Craig Warner telling the claimant her confidence was of a “career level E and not D” (C9); the conversation about Nazis and positive intent (C13 and LD47); and the proposal to put the claimant on a coaching plan (C15- 19).[36]The claimant was assessed by Dr Pilgrim in September 2022. The claimant is very unhappy about how the assessment was conducted, with Dr Pilgrim often interrupting her, and not allowing her to speak about things which he did not consider relevant to the questions he had been asked to address.[37]The claimant attended private therapy, at the cost of £40 per session from March 2020 up to the date of the hearing (p.803) and intends to carry on with therapy for a further six months. We note from the evidence of payments that sessions were sometimes weekly, but there were sometimes longer gaps between sessions.[38]The claimant incurred NHS prescription charges of £9.35 each time for her prescriptions for anti-depressants beginning in late June 2020 (p.810). From September 2021, the claimant began to make direct debit payment of £10.81 each month for ten months, for a 12 month prescription prepayment certificate (PPC) (pp810-811). At the time of the remedy hearing, the claimant informed us that she intended to taper off use of antidepressants over a further 6 month period.[39]In the claimant’s witness statement, she claimed £1440 in doctor’s costs (C76). However, she did not explain what this was for and we have not been able to find any supporting documentation relating to this expense in the remedy bundle. Dr Rastogi’s report (pp619-636)[40]Dr Rastogi was instructed by the claimant to provide a report prior to the hearing on liability. The doctor’s instructions were to identify any psychological harms that were caused by and attributable to the claimant’s work environment and to identify the likely duration of the psychological injuries together with any appropriate treatments that would be recommended. Since the report, dated 6 December 2021, was obtained prior to the decision on liability, it does not focus on harm caused by the acts of harassment only and gives an opinion based on what the claimant told Dr Rastogi about the work environment generally.[41]The claimant told Dr Rastogi about the two incidents of harassment as well as about a considerable number of other matters at work which had upset her.[42]In relation to the claimant’s past psychiatric history, Dr Rastogi recorded that the claimant had past issues with anxiety relating to academics and schooling. There was reference to traumatic life events and a turbulent period between 2015 to 2016. Dr Rastogi recorded that the claimant’s medical records were broadly consistent with the claimant’s own narrative. The claimant had been referred for cognitive behaviour therapy in November 2019 in relation to matters which did not appear to be work-related.[43]Dr Rastogi expressed the view that the claimant was presenting with mixed anxiety and depressive disorder. In answer to the request to identify any psychological harms that were caused by and are attributable to the claimant’s work environment, they wrote (p.633) “it is my opinion that the alleged harassment has caused and/or materially contributed to the claimant sustaining a psychiatric injury in form of mixed anxiety and depressive disorder.” It is the tribunal’s view that the use of the word “harassment” in this context, given the width of the question and the fact that the report was being given prior to the tribunal’s decision, was not intended to be limited to the two acts found later by the tribunal to be harassment but harassment is used in a wider sense relating to various matters at work about which the claimant had complained.[44]Dr Rastogi recorded that, during the claimant’s period of sick leave, the claimant reported that her mood was persistently low. She was unable to enjoy her routine activities and felt isolated. She described feeling anxious and scared. She reported that her sleep also became poor. She had started comfort eating. She reported that she had felt hopeless and became more negative about herself and started blaming herself. She had felt suspicious of others. She stated that she started having nightmares and was constantly ruminating about her problems. She also had suicidal thoughts but denied making any attempts. Dr Rastogi recorded that, whilst there had been an improvement in her mental health with medications and therapy, she still continued to present with intermittently low mood and feeling anxious. The symptoms had affected the claimant self-confidence. She presented with intermittent depressive symptoms characterised by periods of low mood, disturbed sleep and having to motivate herself to do activities. She described feeling anxious particularly in work environment and reports feeling anxious about attending face-to-face meetings, managing negative events and constantly worried that she might be viewed as vulnerable. This affected her ability to trust others. She also experienced somatic symptoms in the form of lump in throat, palpitations and difficulty in focusing. Her symptoms were further aggravated by the stress of ongoing legal proceedings. Dr Pilgrim’s report (pp694-733) dated 22 September 2022[45]Dr Pilgrim was instructed after the tribunal’s decision on liability and had the benefit of being able to read this. The questions put to Dr Pilgrim are set out in the report (pp697-700). These included the question: “In your view, did either or both of the proven discriminatory acts in this case (the two acts of harassment which the tribunal upheld) cause or contribute to the claimant’s health to the extent that it caused her to suffer a personal injury?” If the answer to that question was yes, the doctor was asked to give further information in relation to that injury.[46]The summary of Dr Pilgrim’s conclusions reads as follows (p.697): “Ms Alexandre had been suffering from a depressive episode that was mild in severity at the time of the reported incidents at her workplace. It is my opinion that these incidents led to an exacerbation of her depressive condition to the point that it became moderate to severe in severity and resulted in her being unable to continue working, as would be expected in a depressive episode at that level of severity, due to the likely impact on her motivation and her concentration. With treatment in the form of CBT and antidepressant/antianxiety medication (sertraline), her depressive episode largely resolved. She has very recently experienced a recurrence of a depressive episode in relation to her current employment, though this is likely to have been contributed to substantially by the incident she described in relation to her previous employment with BT Open Reach. It is my opinion that the two proven discriminatory acts contributed significantly to the worsening of her depression in the order of around 30% (in total).”[47]Dr Pilgrim’s description of his interview with the claimant included that the claimant told him about Mr Warner making a comment about her being deported when she was going through the visa process and this made her really anxious. She told Dr Pilgrim that she felt like she was not able to stand up for herself and she was powerless, and he thought it was all right to say things like that and he even chuckled at the end of it. The claimant also told Dr Pilgrim about the swimming comment. She told Dr Pilgrim that Mr Warner said he thought that [black people not liking swimming] was due to class and she did not know what to say about that. The claimant also described various other concerns and things which made her anxious at work.[48]Dr Pilgrim asked the claimant what she considered to be the most stressful incidents when she was working with BT Open Reach. She said that it was the way he was attacking her in a personal way all the time. This included the incident when he spoke about her being deported, and the incident to do with black people swimming. She said that it was how she was treated like this infantile person, and, in particular, how she was treated when she reported him. She said that how the company treated her after that almost destroyed her.[49]The section on mental health history included that, in the autumn of 2019, the claimant had referred herself for counselling because of things that had happened in the past. When Dr Pilgrim asked her about what these things were, the claimant said she did not want to talk about those things because they were not relevant to the case, though they were very painful.[50]Dr Pilgrim expressed the opinion that the claimant’s current depressive episode was at present at a mild to moderate degree of severity. That current episode had commenced around a month previously in relation to difficulties experienced in her current job. She had been free of depression for the previous 4 to 5 months.[51]Dr Pilgrim expressed the view that the tribunal proceedings had not had a substantial impact on the onset of the claimant’s depressive episode or the maintenance of that depressive episode.[52]Dr Pilgrim recorded that, during the interview, the claimant was distressed and tearful at several points, though less so in relation to the two proven discriminatory acts than in relation to other events, such as on two separate occasions when she described how she was made to feel that she was not good enough for that job.[53]At paragraph 9.10 Dr Pilgrim wrote (pp725-726): “Ms Alexandre’s depressive episode, which was initially present at a mild degree of severity, deteriorated further whilst in her employment at BT Open Reach to the point that it became present at a moderate to severe degree of severity when she stopped working due to her depression. During this time the unresolved past traumatic memories remained unresolved (until treated by counselling between April and June 2020), and it is likely therefore that the previous episode would have continued. The deterioration in her depressive episode to the point that it was present at a moderate to severe degree in severity is likely, in my opinion to have resulted from the situation in her workplace. This opinion is based on her presentation when she described those events, and when she presented to her GP. Ms Alexandre described numerous incidents at work that led to her feeling distressed and anxious, and it is likely that her long-standing negative sense of self and self-worth contributed to her being sensitized to these incidents. When I asked Ms Alexandre to outline what she considered to be the most stressful incidents whilst working with BT Open Reach, she specifically mentioned the incidents about her being deported and to do with black people swimming. She also said that it was how the company treated her after she had brought the grievance that “almost destroyed her”. At interview, Ms Alexandre was distressed and tearful at points, though less so in relation to the two proven discriminatory acts than in relation to other events, such as on two separate occasions when she described how she was made to feel that she was not good enough for that job. Taking all of this into account, it is my opinion that the two proven discriminatory acts are likely to have contributed to the worsening of her depressive episode (from mild to moderately severe), and that this amounted to approximately 30% of the overall contribution from her work situation.”[54]Dr Pilgrim wrote at paragraph 9.11 (p.726): “The personal injury caused, in my opinion, by the proven discriminatory acts contributed to the worsening of her depressive episode. Her pre-existing vulnerability, in particular her long-standing negative sense of self and self worth resulted in these two incidents having a greater impact in terms of worsening her depressive episode than would otherwise have been the case.” Dr Okon-Rocha’s report (additional document added during hearing)[55]This report, dated 14 December 2022, was as a result of a paper-based assessment. Dr Okon-Rocha read the report of Dr Pilgrim and Dr Pilgrim’s response to questions put by the claimant.[56]In the opinion section, Dr Okon-Rocha wrote at paragraphs 7.2 to 7.5: “7.2 I carefully reflected on this issue. I would equally consider several predisposing and co-existing risk factors for depression (i.e. psychiatric injury) in Ms Alexandre’s presentation, as Dr Pilgrim has done. I believe that the predisposing factors include Ms Alexandre’s self-reported low self worth, history of trauma, and previous history of mental disorders (i.e. anxiety and OCD) as stated in the medical documentation. The co-existing factors, in my view, include the breakup of her relationship, the impact of the Covid lockdown on Ms Alexandre’s well-being or her uncertainty around the visa application. I would also take into account the possible impact of trauma therapy on Ms Alexandre’s well-being. In my understanding trauma therapy took place during the time of the work harassment incidents. Based on my clinical experience, the majority of patients report a significant emotional impact when confronted with traumatic material. “7.3 Generally, in order to make a personal injury claim for a psychiatric injury, it must be proven that the psychiatric harm was a result of an accident or sudden shocking and traumatic event. When reviewing the content of Ms Alexandre’s personal assessment with Dr Pilgrim, it is my view, that she has suffered a psychiatric injury at her workplace. “7.4 From my experience, it is always challenging to put an exact estimate because a psychiatric injury cannot be as objectively measured as other medical/physical injuries, i.e. a loss of cardiac function, etc. I usually take into consideration the client’s estimate and judge this estimate against the clinical presentation. “7.5 Finally, it is possible, although not definite, that Dr Pilgrim’s figure may reflect the accurate degree of psychiatric injury in this case.”[57]In answer to the question as to whether they would have been able to assign a numerical value for the impact “unresolved issues from the past”, because on the claimant’s mental health, as described by Dr Pilgrim, Dr Okon-Rocha wrote, at paragraph 7.13, that they find it challenging to assign a numerical value in relation to this. Reasons given for this included that the claimant did not share the details with regard to her past with Dr Pilgrim and there were no other professional reports summarising the past issues/events and that she had not personally assessed the claimant. Submissions[58]Mr Searle provided a written skeleton argument for the respondent. Both representatives made oral submissions.[59]We summarise the principal submissions as follows. Claimant’s submissions[60]Ms Aly submitted that the claimant would not have been off work for a lengthy period but for the harassment. The claimant had described to Dr Pilgrim the two most serious incidents as being the harassment. On that basis, the claimant claimed for the difference between total net pay received and projected net pay. The claim for pay relating to June 2021 was because June was the bonus month.[61]Ms Aly explained that no claim was made for loss of earnings in July 2020 because the claimant had received full pay for that month. The claimant had then reverted to half pay for August before returning to work.[62]In relation to personal injury, Ms Aly submitted that the harassment had a substantial impact on the claimant. It had an impact on her future working life. Ms Aly submitted, referring to the Judicial College Guidelines for the Assessment of General Damages in Personal Injury cases, that the injury should be assessed as being towards the top end of the moderate bracket of Psychiatric Damage. Ms Aly submitted that, at a minimum, the tribunal should take the contribution of harassment to personal injury as 30%, from Dr Pilgrim’s report. She submitted that the tribunal should treat Dr Pilgrim’s report with caution, given the manner in which the examination was conducted. The acts of harassment were the worst acts and there was an argument for saying the percentage should be higher.[63]In relation to injury to feelings, Ms Aly accepted that there was some overlap with personal injury and double recovery should be avoided. She submitted that the mid-band was the appropriate band. The claimant was suicidal and there were two incidents, not one. They had a long-term impact. She submitted that an award should be in the higher part of the mid-band.[64]In relation to special damages, the claimant had provided receipts for therapy and costs. The claimant remained on sertraline.[65]In relation to aggravated damages, Ms Aly submitted that an award would be appropriate because the claimant had tried to raise Mr Warner’s conduct with him (although not the two incidents of harassment) but this was not addressed and the grievance and appeal were not appropriately addressed. The tribunal had been very critical of the handling of the grievance and appeal. The handling of the claimant’s grievance was appalling. The respondent had done nothing to remedy the situation. They had not apologised to the claimant. Ms Aly acknowledged that there was a limited apology in Mr Searle’s skeleton argument. There had been no apology made by the respondent after the judgment and no apology from Mr Warner.[66]In relation to a recommendation, Ms Aly acknowledged that she could not require the tribunal to make a recommendation to change policies since the claimant no longer works there. She requested that the tribunal make a recommendation for an apology.[67]In relation to an uplift for breach of the ACAS code, Ms Aly referred to paragraph 42 which the respondent had conceded had been broken in relation to the appeal not being heard without unreasonable delay. Ms Aly referred to paragraph 43 but conceded that Miss Fletcher and Ms Taneja had not been directly involved in the case. She relied on Mr Tait’s evidence about impartiality. They worked in the same part of the business. The respondent had substantial administrative resources. However, the respondent insisted that this particular individual hear the appeal. There was no credible reason for the delay in dealing with the appeal. Respondent’s submissions[68]In his skeleton argument, Mr Searle confirmed that the respondent was sorry that the two comments, although innocently made, caused the claimant upset.[69]The respondent submitted that injury to feeling should fall within the lower Vento bracket. Mr Searle provided summaries of tribunal decisions taken from Harvey in relation to awards made in the lower band and the middle band.[70]The respondent submitted that there were no grounds for an award of aggravated damages.[71]Mr Searle submitted that the 30% in Dr Pilgrim’s report could be relied on for personal injury and also came into play for injury to feelings. The respondent accepted that the claimant had a right to something for personal injury additional to the injury to feelings award; there was some impact on the claimant’s mental health. It was difficult to separate the two comments from everything else going on in the claimant’s life. Mr Searle submitted that the personal injury maybe added £1000 or £1200 at most to the award.[72]The respondent contended that the claimant would have been receiving treatment in any event so the claim for special damages must fail. Further, the respondent questioned whether the losses solely related to the two comments the claimant was successful on or related to her pre-existing condition/issues or issues arising from being put on an informal coaching plan.[73]Mr Searle submitted that the claim for loss of earnings must fail given the tribunal’s findings at paragraph 133. Further, the respondent suggested the medical evidence demonstrated a high probability that the claimant would have been absent in any event. Mr Searle submitted that there was no evidence of a link between the acts of discrimination and the loss of earnings. Mr Searle accepted in response to a question from the tribunal, that the tribunal could potentially order 30% of the loss of earnings, reading across from Dr Pilgrim’s report. However, his reservation was the length of time between the second comment in January 2020 and the claimant going on sick leave and the number of other issues going on at the time.[74]The respondent submitted that there should be no compensation for loss of bonus since the claimant would have been absent in any event.[75]In relation to ACAS uplift, the respondent accepted that the appeal outcome letter took far too long. The respondent contended for an uplift figure of 10% given there had been genuine of efforts by the respondent to address the claimant’s grievance.[76]The respondent accepted that interest would be due on any award. Law[77]Section 124(6) of the Equality Act 2010 provides that the amount of compensation which may be awarded for a breach of the Equality Act in relation to work is “the amount which could be awarded by a county court…under section 119”. Section 119 provides that the county court has power to grant any remedy which could be granted by the High Court in proceedings in tort and section 119(4) provides: “an award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis)”. The aim of damages in tort is to put the claimant in the position they would have been in, had the act of discrimination not occurred. Compensation (with the possible exception of exemplary damages which may be relevant in rare cases) is to compensate for loss caused by the act of discrimination. There is no limit on compensation for discrimination.[78]In relation to compensation for injury to feeling, we have regard to the guidelines in Vento v Chief Constable of West Yorkshire Police (no.2) [2003] IRLR 102. We note, in particular, the guidance that awards are compensatory and not punitive. Vento sets out the bands that we must consider. The Presidents of the Employment Tribunals in England and Wales and Scotland issue joint guidance on the current applicable Vento bands, which has been updated on a number of occasions. The guidance provides that, in relation to cases presented after 6 April 2020, the Vento bands are as follows: lower band £900 to £9000 (less serious cases); middle band £9000 - £27,000 (cases that do not merit an award in the upper band); and upper band £27,000 - £45,000 (the most serious cases). In the most exceptional cases, the award can exceed £42,900.[79]Tribunals may make an award of aggravated damages in an appropriate case. Aggravated damages are still to compensate the claimant for injury suffered because of the act of discrimination rather than damages to penalize the respondent for its misconduct. The EAT in Commissioner of Police of the Metropolis v Shaw UKEAT/0125/11/ZT and also in HM Land Registry v McGlue UKEAT/0435/11 summarised the three gateway conditions engaging the power to make an award of aggravated damages which are: a) the manner in which the discrimination was committed; b) the motive of the discriminator; and c) the discriminator’s subsequent conduct. The factors which may lead tribunal to make an award of aggravated damages could be factors which lead the tribunal to make a higher award for injury to feelings. Alternatively, a separate award of aggravated damages is a way of awarding full compensation for the additional injury that the surrounding circumstances have caused. Either approach is permissible. Double counting must be avoided; not compensating for the same injury twice.[80]The Tribunal has jurisdiction to award compensation for personal injury arising out of unlawful discrimination: Sheriff v Klyne Tugs (Lowestoft) Limited [1999] ICR 1170. The Judicial College issues Guidelines for Assessment of Damages in Personal Injury Cases which includes a chapter on Psychiatric and Psychological Damage. The 16th edition of these Guidelines includes suggested brackets for psychiatric damage generally which include £5,860 to £19,070 for moderate damage.[81]The Tribunal may make separate awards for injury to feelings and for personal injury, but the Tribunal must avoid double counting; not compensating for the same injury under two separate heads of damages.[82]Where there are a number of causes of psychiatric injury, the Tribunal should make a sensible attempt to identify the extent to which the discrimination caused the injury. The EAT, in Thaine v London School of Economics [2010] ICR 1422 held that an employer should not have to compensate a claimant for his or her injury in its entirety when the harm for which it was responsible was just one of many causes of the ill health. In so holding, the EAT had regard to obiter guidance on the issue of apportionment in psychiatric ill-health cases given in Hatton v Sutherland and other cases 2002 ICR 613, CA. There, Lady Justice Hale suggested (obiter) that where there are multiple causes of psychiatric illness, the court should make a sensible attempt at apportionment between them.[83]This apportionment of injury due to multiple causes is distinct from the principle that the wrongdoer must take the victim as they find them, or the “eggshell skull principle”. It is no defence to say that a claimant would not have suffered as they did but for their susceptibility or vulnerability to a psychiatric condition. The respondent will be liable for the whole of the injury if it was caused by the discrimination but the injury was worse than would have been suffered by someone else because the claimant was vulnerable or pre-disposed to psychiatric injury. A discount could be applied to damages, however, on the basis that the claimant would have suffered injury even if the discrimination had not occurred.[84]Section 124(2)(c) EqA provides that a Tribunal may, as one of the remedies for unlawful discrimination, make an appropriate recommendation. Section 124(3) provides that an appropriate recommendation is “a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate.”[85]Section 207A Trade Union & Labour Relations (Consolidation) Act 1992 allows the Tribunal to increase any award for discrimination (amongst other awards) by such amount up to 25%, if it considers it just and equitable to so in all the circumstances, where a relevant Code of Practice applies and the employer has failed to comply with the Code in relation to the relevant matter.[86]Interest may be awarded on awards made in discrimination cases in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The interest rate for claims presented on or after 29 July 2013 is 8%.
Conclusions
[87]Our task, in relation to compensation, is to calculate the compensation that will, as far as it is possible to do so with money, put the claimant in the position she would have been in, had the acts of discrimination not occurred. We are calculating compensation for the acts of discrimination which we found to have occurred i.e. the two acts of harassment related to race.[88]We have not doubted the truthfulness of the claimant’s evidence as to how she was feeling at various times. However, the way that she felt was not solely due to the acts of discrimination. It is clear from the claimant’s witness statement and what she told Dr Rastogi and Dr Pilgrim, that she was badly affected by many things at work, not limited to the acts of harassment. In calculating the appropriate amount of compensation, we have to try to identify the loss caused by the discrimination.[89]Prior to the acts of discrimination, the medical reports show that the claimant was already suffering from a mild depressive episode. The claimant’s previous history may have made her more vulnerable than someone else might have been to suffering personal injury and/or injury to feelings because of the acts of discrimination. The respondent must, however, take the claimant as it finds her, and we do not discount any compensation because of pre-existing vulnerability.[90]Where there is more than one cause of injury, the Tribunal must make a sensible attempt to identify the extent to which the discrimination caused the injury. We have the assistance of the report of Dr Pilgrim to help us do this. We do not consider that this report is undermined in any way by the claimant’s unhappiness about the way Dr Pilgrim conducted the assessment. The report of Dr Okon-Rocha does not undermine the validity of Dr Pilgrim’s opinion. Dr Pilgrim’s opinion that 30% of the personal injury caused by work events exacerbating existing depression is attributable to the acts of discrimination is, of course, only an opinion. It is not possible to apportion causes of injury with any certainty. However, Dr Pilgrim is expressing an opinion informed by his expertise in this area. We see no good reason not to accept Dr Pilgrim’s opinion and award 30% of compensation for injury caused by work events. Personal injury and special damages relating to personal injury[91]We conclude, based on the evidence of the claimant and the information in the medical reports, that the claimant suffered psychiatric damage as a result of work events at the respondent. She went from having a mild depressive episode due to factors not relating to work with the respondent, to having a depressive episode of a moderate to severe degree of severity. The claimant was off work for about 6 months, from February to August 2020, lost motivation even to get out of bed in the early stages of being off work, and had suicidal thoughts. However, she did return to work in August 2020. She has had some ongoing problems, to which the problems at the respondent have contributed. Based on this, we agree with Ms Aly’s submission that the injury falls in the Judicial College moderate category for psychiatric damage. We would place the injury towards the upper end of this category, at £15,000. This is the injury due to all work factors, including many which were not found to be acts of discrimination. As explained above, on the basis of Dr Pilgrim’s opinion, we consider it appropriate to award damages for personal injury of 30% of this amount i.e. £4500.[92]The claim for special damages relates to the claim for personal injury. The claimant has incurred costs of therapy and prescription costs for anti-depressants. We consider it appropriate to compensate the claimant for 30% of these costs, on the basis that this is the proportion to be attributed to the acts of discrimination.[93]From the documentary evidence, we have seen that the claimant spent a total of £3600 on therapy in the period March 2020 to October 2022. The claimant had continued to have therapy after this point and intends to continue for 6 months from the date of the remedy hearing. On the basis that session have not always been weekly, and there is likely to be some reduction in sessions as the claimant comes to the end of therapy, we have concluded the claimant is likely to pay for a further 15 sessions after October 2022. At £40 per session, this would be an additional £600. The total cost of therapy would be £4,200. 30% of this cost is £1260.[94]From the documentary evidence, the claimant spent £259.82 on prescription charges in the period June 2020 to September 2022. The claimant anticipated being on anti-depressants for a further 6 months. The cost of this would be approximately 6 x £10.81 = £64.86. The total cost of medication would be £324.68. 30% of this cost is £97.[95]The claimant claimed for doctor’s costs of £1,440. As noted above, she did not explain what this was for and has provided no documentary evidence to show that such medical costs were incurred for treatment for personal injury (see paragraph 39 above). The claimant has not satisfied us that these expenses were incurred wholly or partly because of discrimination and we make no award in respect of these costs.[96]The total of special damages awarded is £1357 (£1260 + £97).[97]We will deal with the issues of an uplift to compensation for failure to comply with the ACAS Code of Practice on Discipline and Grievance and interest later in our conclusions. Financial loss[98]The claimant claims for loss of earnings when on sick leave in May, June and August 2020 and for the reduction in bonus sustained in June 2021 because of this period of sick leave. She also claims for loss of pension contributions in May, June and August 2020.[99]We conclude that the acts of discrimination were a contributory factor to the claimant going on sick leave. However, these were not the only contributory factor. We conclude that it would be appropriate, and consistent with our approach to personal injury, to award 30% of the amount of financial loss incurred because of being on sick leave.[100]We accept the figures given in the claimant’s schedule of loss for salary differential and loss of bonus, totalling £4,180.06. We award compensation of 30% of this amount i.e. £1254.[101]We accept that the claimant suffered a financial loss because employer’s pension contributions were reduced in May, June and August 2020 by £241.04 in total. We award compensation of 30% of this amount i.e. £72.[102]We do not award anything for a reduction in employee’s pension contributions. Employee’s pension contributions would have come out of the claimant’s pay for May, June and August 2020. We have made an award in relation to the shortfall in pay. If we made an award for a reduction in employee’s pension contributions, the claimant would be awarded compensation twice for the same loss. Injury to feelings and aggravated damages[103]We have found it difficult to isolate the injury suffered by the claimant as a result of the acts of harassment from hurt feelings suffered as a result of other things happening at work, including, but not limited to, the proposal to put the claimant on a coaching plan. We have recorded the evidence given by the claimant in relation to these particular incidents at paragraphs 18 and 19 above. We have also noted that the claimant made particular mention of these incidents when asked by Dr Pilgrim what she considered to be the most stressful incidents when she was working with the respondent (see paragraph 48 above). She also referred to other matters, including how she was treated like this infantile person, and, in particular, how she was treated when she reported Craig Warner. The two comments found to be harassment could not be regarded as being comments treating the claimant as infantile, so the reference to treating her as an infantile person must refer to other treatment by Craig Warner, not found to be discrimination. We conclude that the injury suffered by the claimant as a result of the acts of harassment had a continuing effect on the claimant, demonstrated by her distress as she recounted these in the hearing on liability. The acts of harassment contributed to the claimant’s poor mental health, such that the claimant went on sick leave for approximately six months, and had suicidal thoughts. As we concluded when dealing with personal injury, the acts contributed to the exacerbation of her depressive episode to the extent of 30%.[104]Both comments found to be harassment seriously injured the claimant’s feelings.[105]In attempting to arrive at an appropriate award of injury to feelings, we have approached this in two ways.[106]We have considered first what we would award for the injury suffered as result of the two incidents viewed in isolation. The injury was serious but did not cause the claimant, at that point, to cease to be able to work. It did, however, have a continuing impact. The visa comment was particularly hurtful since the claimant was already anxious about the visa situation and concerned about the impact on her life if the visa was not renewed. The comment about black people and swimming was even more hurtful, since it struck at the claimant’s class status and because of the history of segregation in the US. We consider that the lower Vento band is the appropriate band of compensation, but that compensation should be towards the top of that band, which is £9000.[107]If we considered the injury to feelings suffered by the claimant because of all work events (including non-discriminatory acts), we would have considered the injury to fall towards the top of the middle Vento band which is £27,000, but would award 30% of that, which is £8,100.[108]Both approaches would lead us to make an award in the range of £8100 to £9000, leaving aside the matter of avoiding double counting with the personal injury award and aggravated damages.[109]We conclude that this would be an appropriate case to recognise additional injury caused because of the respondent’s conduct after the acts of harassment. The claimant’s feelings and mental health were further adversely affected by the very poor way in which the respondent dealt with the parts of the grievance relating to the comments made by Craig Warner. We refer to the parts of our liability decision which deal with the grievance and appeal (see LD 62 and 78). We have recorded the additional injury suffered by the claimant at the outcome of the grievance and its appeal in paragraphs 23, 27 and 30 above. We conclude that it would be appropriate to recognise the additional suffering caused to the claimant by the poor way the respondent dealt with these parts of the grievance and grievance appeal by awarding aggravated damages of £1000.[110]There is an overlap between injury compensated for as injury to feelings, aggravated damages and personal injury. Taking account of this, we consider that the injury to feelings award, including the award for aggravated damages, should be reduced to £8500. We consider that a combined award of £13,000 for injury to feelings (including aggravated damages) and personal injury is an appropriate amount of compensation for the injury to feelings and health sustained by the claimant as a result of the acts of discrimination and exacerbated by the respondent’s deficiencies in dealing with the grievance and appeal relating to the comments found by the Tribunal to be harassment. ACAS uplift[111]We conclude, and the respondent conceded, that the respondent breached the ACAS Code of Practice on Discipline and Grievance by not providing a timely outcome to the appeal. Paragraph 45 of the Code requires that the outcome of a grievance appeal should be communicated to the employee in writing without unreasonable delay. We were not persuaded by Ms Aly’s submissions that there was any other breach of the Code. We do not agree that paragraph 43 of the Code was broken. Ms Taneja had not previously been involved in the case.[112]The respondent complied in other respects with the requirements of the Code. We agree with Mr Searle’s suggestion that a 10% uplift to compensation would be appropriate in these circumstances. Interest[113]There is no reason not to award interest at the rate of 8% on compensation awarded. On actual financial loss, for the purposes of which we include the special damages for personal injury, we consider that interest should run from the midpoint between the second act of discrimination – 29 January 2020 – and the calculation date – 6 January 2022. This is a period of 537 days. On the award of damages for injury to feelings and personal injury, interest is awarded from the date of the second act of discrimination until the calculation date, which is a period of 1074 days. Recommendation[114]The Tribunal has power to make a recommendation that the respondent takes specified steps for the purpose of obviating or reducing the adverse effect of the discrimination on the complainant. We consider that an apology from someone in a senior position at the respondent, not just from counsel with the agreement of those instructing him, would go some way to alleviating the claimant’s hurt feelings. We, therefore, make a recommendation in the terms set out in our judgment. Calculation of compensation with uplift Financial losses Salary differential 1254 Employer pension contributions 72 Special damages 1357 Total financial loss before uplift 2683 ACAS uplift of 10% 268 Total financial loss after uplift 2,951 Injury to feelings and personal injury Injury to feelings including aggravated damages 8500 Personal injury 4500 Total before uplift 13,000 ACAS uplift of 10% 1,300 Total after uplift 14,300 Total compensation excluding interest £17,251 Calculation of interest Interest on financial losses 537/365 x 8/100 x 2951 = 347 Interest on injury to feelings and personal injury 1074/365 x 8/100 x 14,300 = 3366 Total interest £3713