[1]The claimant’s claim that she was automatically unfair dismissed in breach of section 103A of the Employment Rights Act 1996 (“ERA”) succeeds. The principal reason for the claimant's dismissal was that she had made a protected disclosure.[2]The claimant's claim that she was subjected to detriments for making protected disclosures succeeds in relation to the following detriments: D1 The claimant's pay allegedly being reduced by £100 per week, in or around November 2020. D2 The respondent refusing to allow the claimant to take annual leave during a shift she was unable to attend as a result of being in contact[3]The claimant’s claim that she was subjected to a detriment for making protected disclosures fails in relation to the following detriment: D3 The respondent re-allocating shifts the claimant was due to do to another personal assistant despite the claimant obtaining a negative Covid-19 test result.[4]The claimant's claim that the respondent failed to pay her holiday pay for holiday accrued but untaken succeeds. The claimant was entitled to 1.8 weeks of accrued holiday pay which the respondent failed to pay her.[5]The claimant's claim that the respondent made unauthorised deductions from her wages succeeds.[6]The claimant's claim that the respondent breached her contract fails and is dismissed.[7]A remedy hearing has been listed for 29 January 2024.
REASONS
Introduction
[1]The respondent in this case is a disabled person by reason of a number of medical conditions which impact on her physical but not her cognitive abilities. She directly employees Personal Assistants (“PAs”) to assist her with her needs.[2]The claimant was employed as a PA from 3 February 2020 until her dismissal on 10 December 2020. The claimant says that her dismissal was because she made protected disclosures to the respondent. She also says that she was subjected to detriments for making those disclosures and that the respondent made unlawful deductions from her wages, failed to pay her accrued holiday pay and breached her contract.[3]This final hearing was a hybrid hearing. It dealt with liability only. The Tribunal panel attended in person. The claimant, her witnesses and the respondent’s representative attended in person. The respondent and the respondent’s witness gave evidence by CVP video link.[4]We heard evidence from the parties on the first four days of the hearing. After hearing submissions from the parties on the morning of day 5 of the hearing, we reserved our decision. We considered the case in chambers on the afternoon of 15 September 2023 and on 24 October 2023. The Employment Judge apologises to the parties that absences from the Tribunal and other judicial work have led to a delay in finalising this judgment. Anonymisation Order[5]At a preliminary hearing on 19 January 2023, Employment Judge Horne decided that this final hearing should be heard in private because the respondent is a disabled person and the case involved details of the assistance that she was given by her PAs. He decided at that hearing not to make an anonymisation order. That was because it was not clear to him to what extent any written judgment and reasons would have to include reference to the respondent’s disabilities and/or specific details of her medical conditions and treatment or assistance needed arising from them. Having heard the case and decided to reserve our decision, we considered whether we should make an anonymisation order. Although the claimant objected, we decided it was appropriate to make an anonymisation order and gave oral reasons. Those reasons were requested in writing and are attached to our anonymisation order.[6]Because of that anonymisation order, the claimant in this case is referred to in the case heading as “A”, the respondent as “B”. We decided it was appropriate for the anonymisation order to extend to the respondent’s PAs because of the risk that naming or identifying them in our Judgment would lead to the respondent being identified. We refer to the respondent’s witness, who provided ad-hoc PA cover as “C”. There were 3 witnesses for the claimant in addition to the claimant herself. One of those had been a PA for the respondent for 30 months. We refer to her as “D”. We decided to anonymise the claimant's second witness, E, who is the claimant's lodger. That, again, was to remove the risk of the respondent being identified by “jigsaw identification”. The claimant’s third witness, F, was also a PA. She provided a written witness statement but did not attend the hearing to give oral evidence.
The Issues
[7]The issues in the case were identified at the case management hearing held by Employment Judge Dunlop on 15 September 2021. We have included the full list of issues in the Annex to this Judgment for reference. Because the hearing dealt with liability only we did not deal with the issues in section 4 of that list which relate to remedy.[8]We have amended the List of Issues to remove the parties’ names so that it complies with our anonymisation order. We have also corrected the reference in D1 to November 2021 which should refer to November 2020.[9]In our discussion and conclusion section which starts at para 96 below we have also dealt with the issue of time limits. That was because the respondent raised the issue that some of the whistleblowing detriment claims might be out of time. That is an issue going to jurisdiction so one we had to decide even though it was not in the List of Issues. Preliminary Matters Reasonable adjustments
Preliminary Matters
[10]At the case management hearing on 15 September 2021, Employment Judge Dunlop noted that the claimant has a hearing impairment and required the final hearing to take place in person. She also noted that the respondent’s disabilities meant that it was not practicable for her to attend the hearing in person. Although the claimant objected to the respondent attending by video, both Employment Judge Dunlop and Employment Judge Horne decided it was in accordance with the overriding objective to allow her to do so. That is why the final hearing was a hybrid hearing.[11]To reduce any disadvantage to the claimant arising from her hearing impairment we rearranged the Tribunal room so that she was sitting facing Mr Fakunle. That made it easier for the claimant to hear Mr Fakunle when he was cross examining her or making submissions. The claimant did not have difficulty hearing the respondent when she gave evidence by video link. We are satisfied that all parties were able to fully participate in the hearing. The claimant’s application to add documents to the final hearing bundle[12]There was a final hearing bundle of 250 pages. We refer to that as “the Bundle”. References to page numbers in this Judgment are to pages in that Bundle.[13]Before hearing the evidence in the case, we considered an application by the claimant to add documents to the Bundle. The respondent objected to that application but did not object to us seeing the documents that the claimant wanted to add before reaching our decision. We decided to refuse the claimant’s application. We gave oral reasons for that refusal. The claimant asked for them in writing, so we set them out here.[14]The majority of those documents were photographs showing the claimant and respondent spending time together on various day trips or at social events. The respondent submitted that these were personal documents relating to the respondent’s private life. Mr Fakunle submitted that was a factor we should take into account in deciding whether to admit those photographs in evidence. There was also a business card for the respondent and the claimant’s NHS Covid pass which (as far as we could see) dated from after the claimant’s dismissal.[15]We decided, based on our then current understanding of the issues in the case, that those documents were not sufficiently relevant to the issues in the case to require them to be added to the Bundle. For completeness, we confirm that the same reasoning applied to the claimant's email to Lancashire safeguarding about a referral she made on 14 December 2020 which postdated the claimant's dismissal.[16]We made our decision in those terms because we accepted it might be that as we heard the evidence it might become apparent that the documents were indeed relevant to the issues in dispute. We confirmed in our oral reasons that if that happened the claimant could apply to vary our decision. She did not do so. For the avoidance of doubt, had she done so, our position would have been the same i.e. that the documents were not of sufficient relevance to the issues in the case to require them to be included in the Tribunal bundle.
Evidence
[17]We had written witness statements for the claimant and three witnesses. Two of those witnesses, D and F, had been PAs to the respondent. Witness E was the claimant's lodger. Witness F did not attend to give evidence at the Tribunal hearing. As we explained to the parties, we would therefore give that witness’ evidence as much weight as we considered appropriate given that the respondent had not had an opportunity to cross examine them. For the respondent, we had a witness statement for the respondent and for witness C. They both attended the hearing by videolink. Each witness was cross examined and answered questions from the Tribunal.
Findings of Fact
[18]We set out below our findings of fact based on the evidence we heard and the documents we read. We found neither the claimant’s evidence nor the respondent’s evidence entirely reliable. We accept that is to some extent a product of the length of time since the incidents giving rise to the claim. We did not find we could give much weight to the written evidence from witness F because she did not attend the hearing to be cross-examined. We found the evidence of the claimant’s witnesses D and E more reliable than that of the respondent’s witness C. Background - the respondent’s healthcare needs and how she met them[19]The respondent is a disabled person by reason of a number of medical conditions. They include but are not limited to multiple sclerosis, COPD, epilepsy, asthma and diabetes. As a result of those medical conditions the respondent has a suppressed immune system and requires assistance with aspects of her daily life. Her medical conditions do not impact on her cognitive abilities and she lives in her own home. At the time of the incidents giving rise to this case, she had a Direct Payment Personal Health Budget which she used to meet her needs. She did so by using the Budget to directly employ PAs. That Budget reflected the needs identified in her Healthcare Support Plan (“the Healthcare Plan”).[20]Those needs included assistance from a PA in getting from her bed to the adapted electric wheelchair which the respondent used in and out of the home. They also included ensuring she was comfortable in her chair and helping her with position changes to reduce the risk of pressure damage. The respondent had a specialised mobility car (“the Mobility Vehicle”) which she required assistance to access. She also required someone to drive the Mobility Vehicle for her.[21]The respondent needed assistance with activities of daily living because of her reduced grip. She gets recurring chest infections and needed assistance to access and use nebulised salbutamol and saline up to four times daily during acute exacerbation of asthma together with regular overnight saline/ipratropium nebules. She had “rescue” steroids and antibiotics available to take if needed as arranged with the Intensive Home Support Services who would also support her as required to avoid hospital admission during any acute exacerbation.[22]The respondent has a catheter in situ. Catheter changes were carried out by the District Nursing Team but daily management of attaching and removing the night bag and weekly change of the leg bag needed to be managed by PAs on her behalf. The respondent is prone to urine infections and required the PAs to meet her personal hygiene needs because her mobility, grip and shape make this difficult for her to manage unaided. The Healthcare Plan recorded that the respondent also required use of the Peristeen bowel irrigation system to maintain bowel continence and prevent constipation. It noted that was administered by the PAs. The claimant says that one of her protected disclosures was about use of the Peristeen system so we deal with that in more detail below.[23]The respondent’s Budget enabled her to directly employ a number of PAs to provide assistance with her needs. The Healthcare Plan was revised in July 2020 (pages 87-99). Prior to the revision, there were 5 PAs providing cover for 12 daytime hours each day of the week at £10 per hour. The cover was not 24/7. The Healthcare Plan envisaged night-time support being provided by “pop-in” night cover. That was not working well for the respondent so the budget to cover it had been converted to provide an additional 60 hours’ PA support per week. That made a total of 144 hours PA support per week, equating to an average of just over 20 hours per day. We find that at that point the respondent had carers present overnight but not every night.[24]The revised Healthcare Plan increased the Budget to enable 24/7 cover, i.e. 168 hours per week. The increase was a response to the respondent reporting that she experienced seizures at night associated with her diagnosis of epilepsy. She was concerned that if she experienced a seizure when she was on her own at night she might struggle to call for help and might struggle to press the emergency buzzer.[25]We find that some of the PAs, such as the claimant and D, worked regular shifts over a period of time. Others, such as C, provided ad-hoc cover when needed, e.g. if a PA could not do their regular shift. We heard reference to, but no evidence from, a PA who we will refer to as G. We find that he was both the primary PA and a friend of the respondent.[26]We find that the duties of a PA varied depending on the times they worked and the respondent’s needs on a particular day or at particular times of day. They ranged from attending to the respondent’s healthcare and intimate hygiene needs to going on trips out with the respondent, taking her sailing (the respondent is a keen and able ingle handed sailor) or spending time with her in her home. In very broad terms the role could range from that of a nurse providing healthcare (such as administering medication) to that of a companion. We find it was important to the respondent that the assistance she received from her PAs did not result in her home environment becoming “medicalised” or in her being treated as a “patient” or “careuser”.[27]We find based on the evidence from the claimant and witness D that the respondent could be a demanding employer and that some PAs did not last long in her employment. We find that to an extent that is explained by the nature of the employment. It was not a typical employment relationship. The PAs were in the respondent’s home and spending a significant part of the day and evening during their shift with the respondent. Their relationship with the respondent was important. The PAs needed to attend to her needs but also needed to ensure they respected her right to decide how she lived her life and how her needs were met. That obviously did not override the PAs rights as employees and the respondent’s obligations as an employer. We do find, based in particular on the approach to the claimant’s dismissal, that the respondent may not always have had those obligations in mind. The claimant’s employment as a PA and her terms and conditions[28]The claimant and the respondent had been friends for many years. In February 2020 the claimant agreed that she would start work for the respondent as a PA, having provided assistance on an unofficial, ad hoc basis in the past. The claimant is retired. She had been looking for part-time work which would provide her with some funds while fitting in with the projects that she wanted to undertake and enabling her to spend time with her grandchildren.[29]The claimant’s employment started on Monday 3 February 2020. At that point, there was no written contract of employment. The respondent emailed the claimant a contract of employment on 9 November 2020 (pp.72-86). The claimant did not agree to or sign that contract.[30]We find the written contract reflected the reality of the claimant’s terms of employment to the extent that it confirmed her employment began in February 2020; that her hourly rate was £10 per hour; and that her holiday entitlement was the statutory 5.6 weeks per holiday year. However, we find it did not reflect the reality of the claimant’s terms of employment in a number of other respects. Hours of work[31]The written contract said the claimant was on a zero hours’ contract. Under the heading “Hours of Work” it said that the claimant worked shift work Monday to Sunday each week as per the fortnightly rota with appropriate breaks. It said that “start and finish times may vary in accordance with my needs and will be notified to you giving as much notice as possible”. It said that the claimant was required to complete and submit timesheets. There was no evidence (or any suggestion for the respondent) that the claimant was ever required to complete and submit timesheets.[32]When it comes to the claimant’s hours of work, we find that the claimant initially worked 20 hours per week, working Mondays only. In April 2020 the respondent asked the claimant to work Wednesdays as well as Mondays because the PA who had been working Wednesdays was no longer able to do so. The claimant agreed. We find that from that point the claimant’s regular working days were Mondays and Wednesdays but she also on occasion did extra hours to cover for the absence of other PAs, e.g. on holiday.[33]There was a dispute about the number of hours for which the claimant was entitled to be paid for each of her regular days, The claimant said that from April 2020 each day was payable at 24 hours per day (£240) rather than the previous 20 hours per day (£200). The claimant’s payslips (pp.149-171) show substantial fluctuations in the number of hours for which she was paid in each fortnightly pay period up to August 2020. However, those from 7 August 2020 onwards seem to us consistent with the claimant being paid for 48 hours per week. That includes the claimant being paid 48 hours’ pay for her week’s holiday in August 2020. Based on those payslips we find that the claimant did not start being paid for 2 x 24 hour days per week until the working week commencing 20 July 2020. That seems to us consistent with the revision to the Healthcare Plan increasing the respondent’s budget to cover 24 hour care from July 2020. The claimant’s duties[34]We find that although the claimant could in theory be asked to carry out the same duties as the other PAs, the respondent (as she accepted in cross examination) did not initially apply the same rules to the claimant because they were friends. In particular, she did not initially require the claimant to sleep over, as other PAs did. We do find, however, that the claimant was “on call” if the respondent needed her assistance during the night-time hours of each day she worked.[35]In practice, we find that the claimant's working day would start between 8.30am and 9.30am and would end when the respondent’s needs for the day had been fulfilled. That would usually be around 11.30 p.m. but could be much later, e.g. 1.45 a.m. On the balance of the evidence, we find that the PAs did not as a regular practice overlap and hand over to each other at the start of a day’s shift. The PA finishing their shift would make sure the respondent had everything she needed before they left. We find the exception to that would be if the respondent was not certain whether the next PA was going to be arriving shortly, in which case the departing PA might need to wait to ensure there was cover.[36]We find that the claimant’s daily tasks included making brews and sometimes breakfast in bed for the respondent, choosing her clothes for the day with her, showering the respondent, feeding her animals, shopping, putting the shopping away, doing her hair and makeup and taking her out on trips and for meals. We find that the claimant and the respondent would eat out, have takeaways or have a drink together. When they went out, the claimant would drive the Mobility Vehicle. The claimant would sit in her wheelchair in the back of the Mobility Vehicle. Probationary period and notice of termination (pp.73 and 75-76)[37]The written contract provided that the notice of termination to be given by the respondent to the claimant was the statutory minimum notice, i.e. 1 week’s notice between 1 month’s service and 2 years’ service. It provided that the notice of termination to be given by the claimant to the respondent was 24 weeks on completion of a probationary period, but 1 week from 1 month’s service to successful completion of a probationary period. The probationary period was stated to be 3 months.[38]We find that the claimant had at no point agreed to a requirement that she give 24 weeks, notice. There was no evidence that she had been subject to any kind of probationary review. There was also no suggestion she had failed any kind of probationary period. Covid and its impact on the respondent’s care[39]The incidents giving rise to this case happened during the COVID pandemic. The first national lockdown came into force 7 weeks after the claimant’s employment began. Various government restrictions (and relaxations of the same) were in place from that point on throughout the claimant’s employment.[40]There was a dispute between the parties (relevant to one of the alleged protected disclosures) about the respondent’s attitude towards COVID and the use of PPE by the PAs when in the respondent’s home.[41]There was some, albeit limited, evidence that the respondent was concerned about potential COVID infection. That would be understandable given her immunosuppressed condition. That concern manifested itself when she became very angry (according to the claimant) when witness D went on holiday with her mum within Covid rules. The respondent (according to the claimant) felt that this meant that witness D was more likely to infect her.[42]On the other hand, the claimant's evidence was that the respondent did not seem to “get” social distancing, did not let staff wear masks and that staff were not provided with gloves or aprons. The evidence from witness C was that she was not prevented by the respondent from wearing a mask (she did so because of her concern about the risk of infecting a vulnerable relative). There was no suggestion from C or the respondent that the respondent required (as opposed to allowed) her PAs to wear masks. Witness D’s evidence substantially corroborated the claimant’s evidence. She said that the respondent did not have PPE in place until late into the pandemic when it was provided by her son who worked in the care industry. D’s evidence was that although available, the respondent did not require the PPE to be used.[43]We find that the respondent’s concern about COVID was not so great as to prevent her from leaving her home while it was prevalent, in contrast to others who shielded throughout that period. As one example, she visited a park with the claimant on 3 November 2020. At that date, the prevalence of COVID was such that a second national lockdown had been announced to take effect on 5 November 2020.[44]On balance, we prefer the claimant’s evidence and that of witness D on this issue. Although we accept the respondent was concerned about COVID we do not find that concern led her to adapt the way she interacted with her PAs. She did not require them to wear PPE or socially distance. It seems to us that approach was consistent with the respondent’s view that she did not want to “medicalise” her home environment. July 2020 – Incident with the Mobility Vehicle[45]The claimant in July 2020 scratched the Mobility Vehicle when driving it through some gates. The claimant offered to pay for the damage, but the respondent did not take up that offer. We accept the claimant’s evidence that she queried with the respondent whether she was covered by insurance when driving the Mobility Vehicle. We find that her main concern was her potential personal liability for the damage and what the respondent’s friend and primary PA, G, would say about the damage. The claimant case was that she also raised concerns about the health and safety of the respondent, PAs and other road users. Specifically, she said she raised concerns that the respondent’s wheelchair was not secured in the back of the Mobility Vehicle and that the respondent did not wear a seatbelt. On this issue we prefer the respondent’s evidence. We find the discussion was about the claimant’s potential personal liability and whether she was covered by the respondent’s insurance if the respondent’s wheelchair was not adequately secured, rather than broader issues of health and safety as the claimant suggested. The Covid Incident[46]The claimant was on annual leave for 2 weeks in October 2020. She was due to return to work on Monday 26 October. On Sunday 25 October 2020 the claimant found out from her middle son that her youngest son and partner had Covid. The claimant had spent time with her younger son and partner when she visited them that weekend.[47]The claimant rang the respondent early on Monday morning to explain what had happened and to tell her she was going to get a Covid test done. There is a dispute about how the respondent reacted. The claimant’s evidence was that the respondent was furious and told the claimant to “get her arse into work because she needed her”. The claimant's evidence was that she told the respondent that she should not come into work until she had a negative Covid test. She said that the respondent insisted that she did come in. The respondent’s evidence was that she was the one telling the claimant not to come into work.[48]The claimant's version of the conversation was corroborated by her lodger, E. His evidence, which we accept, was that he overheard the conversation because the claimant used the loudspeaker on her phone because of her hearing impairment.[49]The respondent’s version of events was corroborated by witness C. However, we did not find her evidence reliable. Her witness statement did not deal with the content of the conversation. Her evidence when questioned about how she had come to overhear the conversation and what was said was unconvincing and inconsistent.[50]On balance, we prefer the claimant’s version of events. We find that the respondent was angry with the claimant for “leaving her in the lurch” and that overrode any concerns she had about COVID. That seems to us consistent with the impact not having a PA to assist her had on the respondent. It also seems to us consistent with our findings about the respondent’s attitude to COVID more generally.[51]The claimant received a negative test result on the afternoon of Tuesday 27 October 2020. We find that she rang the respondent to say that she had tested negative so she would be able to work her usual Wednesday shift on 28 October. The respondent accepts that she told the claimant that she had already arranged cover for that shift. We find the claimant then asked to take the Wednesday as leave so she could receive holiday pay but the respondent refused saying that she had no holiday entitlement left. The respondent’s evidence was that she checked the holiday entitlement with her payroll provider who confirmed that the claimant had already taken more holiday than she had accrued at that point. We accept the respondent did do that but find that was not until after the refusal. There was in the bundle an email exchange between the respondent and her payroll provider relating to the claimant's holiday entitlement (p.104). That was dated 11 November 2020, so some 2 weeks after the refusal. We find that the claimant had not checked with the payroll provider and did not have an accurate calculation of the claimant’s untaken holiday entitlement when she and the claimant had the conversation on 27 November. However, we accept that she would have been aware that the claimant had only just taken 2 weeks’ leave and had also taken a week’s leave in August. Events in November 2020[52]The claimant returned to work on the first Monday in November 2020. There were a number of incidents in November 2020. Taken together, we find they show the relationship between the claimant and the respondent deteriorating. Alleged protected disclosure PD3[53]The claimant alleges that in early November she again raised concerns with the respondent about the scope of insurance cover for the Mobility Vehicle and about the health and safety risks of the respondent’s wheelchair not being properly secured in the Mobility Vehicle. Her evidence was that she raised the issue as a result of having to arrange to be added to the insurance policy for a new car owned by her son in late October 2020. We accept that the claimant queried whether she was covered by the insurance on the Mobility Vehicle in early November 2020. We do not find that she raised the wider issues of health and safety which she alleges. As in July 2020, we find her concern was purely with whether she was covered by the insurance policy when driving the Mobility Vehicle and any reference to the respondent’s wheelchair being secured was in relation to the validity of the insurance as it applied to the claimant. We find that she raised that point with the respondent who assured her verbally that she was insured. Use of the Peristeen system – alleged protected disclosure PD4[54]Early in November, the claimant and the respondent went on a trip out in the Mobility Vehicle to visit a park. There was some uncertainty about the exact date of that visit. The date is not decisive but on balance, we find it was probably on the first Monday back, i.e. 2 November 2020 because the second national lockdown was in place from 5 November 2020. We find that the respondent soiled herself on the way and so they returned home. The claimant cleaned and showered the respondent. We accept the claimant’s evidence that the respondent decided that her bowels were impacted and that she would need to use the Peristeen bowel irrigation kit on a daily basis to avoid a recurrence of the issue.[55]We accept the claimant’s evidence that she had never used the Peristeen kit up to that point. Witness D had also not used the kit up to that point. We find claimant’s genuine perception was that the kit had been “languishing” on the floor in the respondent’s wet room which the claimant regarded as “mouldy”. We find that the claimant told the respondent that they should seek medical advice before starting to use the Peristeen kit.[56]The respondent insisted on using the kit without seeking such advice. She arranged for her primary PA, G to train D in how to use the kit and witness D then trained the claimant. We find the claimant again told the claimant that they should seek clinical advice before starting to use the Peristeen Kit. We find that her understanding from the Peristeen Instruction booklet was that the kit should not be used the first time without medical supervision. The training manual confirms that the patient or carer should be trained by a healthcare professional before using the Peristeen kit for the first time. The instruction booklet warns that the irrigation should always be carried out with caution. We find the respondent dismissed the claimant’s concerns and insisted on doing things her way. The claimant did carry out the irrigation procedure once before her employment ended. The requirement to sleep over[57]We find that the respondent did start to require the claimant to sleep over from early November. The respondent had not previously required her to do so. Other PAs were required to sleep over. The claimant did carry out the sleep overs, albeit reluctantly. She took her own camping mattress and left the window in the spare bedroom in which she slept open all day and all night. We find she was concerned about cross infection because the other PAs used the room to sleep over. The respondent suggested that she required the claimant to sleep over because she had additional health issues at the time which increased the chance of her needing assistance at night. We do not accept that was the case. The Healthcare Plan recognised the need for (and funded) 24 hour care but that was in July (or at the latest August 2020). Despite that, there had been no requirement for the claimant to sleep over before November 2020. There was no evidence to substantiate a change in the respondent’s needs around that time which could explain the requirement to sleep over. Attending work with a chest infection[58]One reason given for dismissing the claimant was that she attended at work in late November with a chest infection, leading (according to the dismissal letter) to the respondent experiencing a respiratory flare up and “attendance at [we think that should be “of”] ICAT” (Intermediate Care Services). In her witness statement the respondent refers to her having “to be hospitalised” because of being infected by the claimant. There was no evidence of such a hospitalisation in early November and that description is not consistent with what she said in her response to the claimant’s appeal against dismissal. In that letter (p.111) she refers only to her contacting ICAT “being on the safe side”.[59]The respondent in her evidence said that the claimant had a persistent cough when she attended work in November and told the respondent that she “could not be bothered to go to the doctors”. However, in the appeal outcome letter she referred to the claimant saying she had a cough and runny nose for 4 weeks and to her coughing incessantly all through the night. She did not suggest that she had raised concerns with the claimant about attending with a cold/runny nose during those 4 weeks. There is no reference in that letter to the remark about not going to the doctors. The claimant denied ever making that remark or ever having had a chest infection. She accepted she might have coughed at night when sleeping over because she had the window open in the bedroom. We prefer the claimant’s evidence on this issue. We accept her evidence that she did not have a chest infection and would not have attended work if she had one being aware of the claimant’s being prone to chest infections. Written contract of employment[60]On 9 November 2020 the respondent emailed the claimant the written contract of employment we discuss at paras 27-37 above. We find that the respondent had adapted it from a template she found on the internet. We accept witness D’s evidence that the respondent also issued contracts to her and to G. We also accept her evidence that the respondent did so because she was angry with the claimant.[61]There is no suggestion that the claimant signed the contract or otherwise discussed or agreed its contents. Alleged docking of pay[62]The claimant says that from November 2020 the respondent docked her usual pay of £240 per day by £50 or £100 a week. The claimant’s payslip dated 27 November 2020 records her being paid £380 gross (38 hours x £10 p.h.). Her payslip dated 11 December 2020 records her being paid £1140.00 gross (114 hours at £10 p.h.). Her final payslip records her being paid £1140 (38 hours at £10 p.h. plus a payment in lieu of £760 (76 hours at £10 p.h.). Based on those payslips we find that from the payslip dated 27 November 2020 (which related to the weeks commencing 9 and 16 November 2020) the claimant was paid for 38 hours week (i.e. for 19 hour days) rather than the 48 hour week/24 hour days she had been paid since August 2020. The claimant's dismissal[63]On Thursday 10 December 2020 (a non-working day for the claimant) the respondent sent the claimant a “short-term dismissal letter” (page 106). The letter stated that the “matters of concern” were: “(1) Inconsistent time keeping – I can see this being a huge problem once we move North (this refers to the respondent’s intention to move away from the area where she and the claimant then lived). (2) Questioning my judgment and treatment regimes. (3) Coming on shift with a ‘chest infection’ – which has led to a respiratory flare-up and attendance at ICAT.”[64]The letter stated the dismissal would take immediate effect and that the claimant would be paid two weeks’ pay in lieu of notice. The letter confirmed that the claimant had a right to appeal which she should exercise by writing to the respondent within seven days.[65]We find that the respondent had sought advice from her payroll and HR support in order to prepare the letter of dismissal. There was no suggestion that the respondent had raised these issues with the claimant by way of a warning or any form of disciplinary process prior to issuing the dismissal letter.[66]The claimant exercised her right of appeal by a letter dated 17 December 2020 (pages 107-110). She challenged the lack of any disciplinary process. She said she had not been given any evidence or facts about the respondent’s concerns nor had she been given an opportunity to defend herself against the three accusations. Her appeal letter addressed each of the 3 accusations in turn.[67]She acknowledged that the respondent had raised timekeeping with her but alleged that was only on one occasion, namely a Wednesday in November when witness D (who was working the Tuesday shift) was waiting for her to arrive before leaving. In oral evidence the claimant confirmed that there was perhaps one other occasion when the respondent had rung her in her car on the way to the respondent’s to ask where she was. Based on witness D’s evidence, we do find that the claimant arrived later than the respondent would have liked her to on several occasions. We find that the claimant took a more flexible approach to her start time than might be expected of a PA, arriving any time between 8.30 and 9.30 a.m. However, we heard no evidence that the claimant’s timekeeping was notably worse later in her employment than it had been earlier. We find that other than the 2 occasions we refer to in this paragraph, the respondent had not raised the issue with the claimant.[68]When it came to the allegation of questioning the respondent’s judgment and treatment regimes, the claimant accepted in her appeal letter that she had at times raised safeguarding issues with her. She said however that she had always followed the respondent’s directions and said that she had always aired her concerns with the respondent in an “honest, caring and respectful manner”. The claimant referred to having raised 2 concerns which she believed had led directly to her dismissal, namely the insurance of the Mobility Vehicle (i.e. PD1 and PD3) and the use of the Peristeen kit (PD4). In her letter the claimant referred to the “two issues” being of serious concern to her regarding the welfare of herself and employees. She did not refer to the COVID incident (PD2).[69]The claimant denied the allegation that she had attended work with a chest infection. We have found that she did not.[70]The respondent sent the claimant an appeal outcome letter dated 21 December 2020 (pages 111-112). She said that because of the claimant's short service it was appropriate for the respondent to exercise its discretion to vary the disciplinary procedures. Dealing with the three points raised by her in her dismissal letter and dealt with by the claimant in the appeal:(1) The respondent said it was imperative that all members of staff arrived on time because if the respondent was left alone she was very vulnerable. She suggested that the claimant had left other PAs in a difficult position because they did not feel comfortable leaving the respondent alone because the claimant had failed to arrive on time for her shift.(2) In relation to the questioning of treatment regimes, the respondent said that the claimant had not only questioned her treatment regimes but also “went as far as researching how long my pet dog needed exercise”. The respondent said that she had managed her condition for years and knew what treatments were required. She said that none of her staff had ever questioned this in all the years that she had had staff. She said that her Clinical Lead actually stated, “it would be indeed unethical not to perform bowel irrigation whenever required”. (In answer to the Judge’s question at the hearing the respondent confirmed that the reason that she had dismissed the claimant was for what she called “gross insubordination”).(3) As to the chest infection allegation, the respondent reiterated her version of events and said that none of the other staff had presented with similar symptoms.[71]That appeal outcome letter confirmed the decision to dismiss was final. Findings of fact relevant to holiday pay[72]There was no dispute that the holiday entitlement was of 5.6 weeks i.e. the statutory entitlement. The disputed contract of employment confirmed that that was the entitlement. It was accepted that the claimant took holidays twice during her period of employment. She took two days (i.e. one week) in August 2020 and four days (i.e. two weeks) in October 2020. Those dates all predated the Covid incident.[73]The claimant was employed for 318 days which equates to 45 weeks and 3 days, i.e. 0.87 of a full leave year. Relevant Law Detriment and dismissal for making protected disclosures (whistleblowing) Whistleblowing[74]Protected disclosures are governed by Part IVA of the Employment Rights Act 1996 (“the ERA”) of which the relevant sections are as follows:- “s43A: in this Act a “protected disclosure” means a qualifying disclosure (as defined by Section 43B) which is made by a worker in accordance with any of Sections 43C to 43H. s43B(1): in this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure is made in the public interest and tends to show one or more of the following:(a) ……..,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) ……,(d) that the health or safety of any individual has been, is being or is likely to be endangered,”[75]The Employment Appeal Tribunal (“EAT”) (HHJ Eady QC) summarised the case law on section 43B(1) as follows in Parsons v Airplus International Ltd UKEAT/0111/17, a decision of 13 October 2017: “23. As to whether or not a disclosure is a protected disclosure, the following points can be made: 23.1. This is a matter to be determined objectively; see paragraph 80, Beatt v Croydon Health Services NHS Trust [2017] IRLR 748 CA. 23.2. More than one communication might need to be considered together to answer the question whether a protected disclosure has been made; Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540 EAT. 23.3. The disclosure has to be of information, not simply the making of an accusation or statement of opinion; Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38 EAT. That said, an accusation or statement of opinion may include or be made alongside a disclosure of information: the answer will be fact sensitive but the question for the ET is clear: has there been a disclosure of information?; Kilraine v London Borough of Wandsworth [2016] IRLR 422 EAT.”[76]Cavendish should not be understood to introduce into s.43B(1) a rigid dichotomy between "information" on the one hand and "allegations" on the other. In The question in each case is whether a particular statement or disclosure is a "disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in paragraphs (a) to (f)]" . However, in order for a statement or disclosure to be a qualifying disclosure, it has to have a " sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection 43B(1) ". The question of whether or not a particular statement or disclosure does contain sufficient content or specificity is a matter for evaluative judgment by the Tribunal in light of all the facts of the case (Kilraine quoted by the EAT in Simpson v Cantor Fitzgerald Europe (UKEAT/0016/18/DA)).[77]The worker need only have a reasonable belief that the information tends to show the matter required by Section 43B(1) and that the disclosure is made in the public interest. A subjective belief may be objectively reasonable even if it is wrong or formed for the wrong reasons.[78]In Chesterton Global Ltd and anor v Nurmohamed [2017[ IRLR 837 the Court of Appeal approved a suggestion from counsel that the following factors would normally be relevant to the question of whether there was a reasonable belief that the disclosure was made in the public interest:(a) the numbers in the group whose interests the disclosure served;(b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect;(c) the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;(d) the identity of the alleged wrongdoer.[79]In Chesterton Underhill LJ addressed the question of the motivation for the disclosure in paragraph 30, saying that: “… while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it: otherwise, as pointed out at paragraph 17 above, the new ss.49(6A) and 103(6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker's motivation - the phrase 'in the belief' is not the same as 'motivated by the belief'; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it."[80]In this case it was is that if the alleged disclosures were made, they were made to the employer. That means they will be protected disclosures under s.43C if they are qualifying disclosures under s.43B. Whistleblowing detriment[81]If a protected disclosure has been made, the right not to be subjected to a detriment appears in Section 47B(1) which reads as follows: “A worker has the right not to be subjected to any detriment by any act or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure.”[82]The question of what will amount to a detriment was considered in the discrimination context by the House of Lords in Shamoon v The Royal Ulster Constabulary [2003] ICR 337: the test is whether a reasonable employee would or might take the view that he had been disadvantaged in circumstances in which he had to work. An unjustified sense of grievance cannot amount to a detriment.[83]The right to go to a Tribunal appears in Section 48 and is subject to Section 48(2), which says this: “On such a complaint it is for the employer to show the ground on which any act or deliberate failure to act was done”.[84]In Fecitt and ors v NHS Manchester (Public Concern at Work intervening) 2012 ICR 372, CA confirmed that in deciding whether detriment was on the grounds of whistleblowing the test is whether the protected disclosure materially (in the sense of more than trivially) influences the respondent’s treatment of the claimant.[85]In International Petroleum Ltd and ors v Osipov and ors UKEAT /0058/17/DA the EAT (Simler P) summarised the causation test as follows: “...I agree that the proper approach to inference drawing and the burden of proof in a s.47B ERA 1996 case can be summarised as follows:(a) the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure he or she made.(b) By virtue of s.48(2) ERA 1996, the employer (or other respondent) must be prepared to show why the detrimental treatment was done. If they do not do so inferences may be drawn against them: see London Borough of Harrow v. Knight [[2003] IRLR 140]at paragraph 20.(c) However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.”[86]The time limit provision appears in section 48(3). A complaint presented more than three months after the act or failure to act is out of time unless it formed part of a series of similar acts or failures ending less than three months before presentation, failing which the claimant has to show that it was not reasonably practicable for him to have presented the claim within time and that it was presented within a further reasonable period.[87]The Court of Appeal considered the time limit provisions in Arthur v London Eastern Railway Ltd (trading as One Stansted Express) [2007] ICR 193 where the question arose as to whether a series of apparently unconnected acts could be shown to be part of a relevant series or to be similar in a relevant way because they had all been done to the claimant because he had made protected disclosures. Giving judgment in the Court of Appeal. Mummery LJ said: “..in order to determine whether the acts are part of a series some evidence is needed to determine what link, if any, there is between the acts in the 3 month period and the acts outside the 3 month period…..It is necessary to look at all the circumstances surrounding the acts. Were they all committed by fellow employees? If not, what connection, if any, was there between the alleged perpetrators? Were their actions organised or concerted in some way? It would also be relevant to inquire why they did what is alleged. I do not find “motive” a helpful departure from the legislative language according to which the determining factor is whether the act was done “on the ground” that the employee had made a protected disclosure. Depending on the facts I would not rule out the possibility of a series of apparently disparate acts being shown to be part of a series or to be similar to one another in a relevant way by reason of them all being on the ground of a protected disclosure.” Unfair Dismissal and whistleblowing[88]Section 103A of the ERA deals with unfair dismissal for making protected disclosures and reads as follows:- “an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”.[89]An employee can bring a claim of automatic unfair dismissal relying on s.103A even where (as in the claimant’s case) they do not have the 2 years’ continuous service required to claim “ordinary” unfair dismissal.[90]The reason or principal reason is derived from considering the factors that operate on the employer's mind so as to cause him to dismiss the employee. In Abernethy v Mott, Hay and Anderson [1974] ICR 323, Cairns LJ said, at p. 330 B- C: "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee."[91]An employer with grounds to dismiss for a fair reason, such as misconduct, might still be found to have dismissed for an impermissible reason if the latter is the reason operating on his mind: ASLEF v Brady [2006] IRLR 576. Unauthorised deductions and Holiday Pay[92]The right not to suffer unlawful deductions from pay arises under Part II of the ERA. Section 13(3) deems a deduction to have been made on any occasion on which the total amount of wages paid by an employer is less than the amount properly payable by her. That requires consideration of contractual, statutory and common law entitlements. Such a deduction is unlawful unless it is made with authority under section 13(1), or exempt under section 14.[93]The Working Time Regulations 1998 provides a minimum entitlement of 5.6 weeks annual leave. Reg.13(9) provides that it cannot be carried over in to the next holiday year. Unless the contract provides for a different holiday year, the holiday year will start on the date of employment and then start of the anniversary of that date.[94]Under WTR Regulation 14 a worker is entitled to be paid for any holiday untaken at the end of their employment. The formula used to calculate that is (A x B) – C where A is the leave to which the worker is entitled, B is the proportion of the leave year which expired before the termination date and C is the leave already taken in that holiday year. Breach of Contract[95]Under Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the 1994 Order”), a claim of breach of contract can be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum if -(a) the claim is one to which section 3(2) of the Employment Tribunals Act 1996 applies; and(b) the claim is not one to which article 5 applies; and(c) the claim is arising or outstanding on the termination of the employee’s employment.
Discussion and Conclusions
[96]Applying the relevant law to our findings of act we reached the the following conclusions on the liability issues in the case: 1. Protected Disclosures 1.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The claimant says that she made the following disclosures: PD1 Around June/July 2020 verbally informing the respondent that the arrangements for transporting the respondent by car were unsafe and/or unlawful in that(a) the respondent was not adequately secured within her wheelchair whilst travelling and(b) the wheelchair was not adequately secured within the vehicle whilst travelling PD2 Around 25 October 2020 informing the respondent during a phone call that it would be unsafe for [the claimant] to attend work due to having been in contact with someone who had tested positive for Covid-19. PD3 Around early November 2020 verbally informing the respondent that the arrangements for transporting the respondent by car were unsafe and/or unlawful in that (a) the respondent was not adequately secured within her wheelchair whilst travelling; (b) the wheelchair was not adequately secured within the vehicle whilst travelling; and(c) the claimant was not insured to drive the vehicle. PD4 Around early November 2020, verbally informing the respondent and another personal assistant (witness D) that initiating the use of bowel irrigation procedures without these being advised by a medical practitioner was putting the respondent’s health at risk.[97]Dealing with each of the alleged protected disclosures in turn.[98]In relation to PD1, we found that in July 2020 the claimant did query with the respondent about whether or not she was covered by insurance when driving the respondent’s Mobility Vehicle. We found that was triggered by concerns that she might be personally liable because she had scratched the van and what G might say about the damage done. We find that raising that query did not amount to a disclosure of information to the respondent. She was asking a question about the scope of coverage of the respondent’s insurance. The reference to the respondent’s wheelchair not being secured was in relation to her concern that it could invalidate cover when she was driving the Mobility Vehicle rather than in relation to the safety of the respondent or other road users. Because there was no disclosure of information, there was no qualifying disclosure within the meaning of section 43B of the ERA. If we are wrong about that and there was a disclosure of information, we find that the claimant did not reasonably believe that that disclosure was in the public interest. We find that her sole concern at that point was whether she personally was covered by the insurance, not the potential danger to the respondent or to other road users.[99]When it comes to PD2, we find that this was a protected disclosure. The claimant disclosed information (her contact with a son who had Covid) which she reasonably believed tended to show that the health and safety of a person was likely to be endangered. The immediate person at risk (apart from the claimant herself) was the respondent. We find, however, that the claimant did reasonably believe that disclosure was in the public interest because the information also impacted on the respondent’s other PAs and anyone else the claimant came into contact with if she did not self-isolate pending the outcome of her COVID test. Given that this event happened in October 2020 and the conditions pertaining at the time, we do accept that the claimant reasonably believed that disclosure was in the public interest.[100]When it comes to PD3, this was the second occasion when the claimant says that she disclosed information relating to the respondent’s travel arrangements. We do not find that this is a protected disclosure. There was no disclosure of information. Instead (as set out in the claimant's letter of appeal against dismissal) the claimant was prompted by sorting out insurance on her son’s car to question whether she would be insured to drive the Mobility Vehicle. Again, we find that the focus was on the claimant's personal liability and whether she was covered by the respondent’s insurance. Since there was no disclosure of information, there was no protected disclosure. Even if there was, our conclusion is that the claimant did not reasonably believe that this disclosure was in the public interest. Rather, she was concerned about her own potential liability if she were to have an accident while driving the Mobility Vehicle.[101]When it comes to PD4, we accept that there was a disclosure of information by the claimant reasonably believed tended to show that the health or safety of a person was likely to be endangered. Specifically, the claimant told the respondent that the Peristeen kit should not be used for the first time without the person using it being trained and supervised by a healthcare professional. We find that the claimant genuinely and reasonably believed that wrong or inappropriate use of the Peristeen kit could cause a risk to the health and safety of the respondent given it was an intimate procedure. We also accept that the claimant reasonably believed that the disclosure was in the public interest. We find the claimant genuinely and reasonably believed that the kit being used inappropriately or wrongly was not only a risk to the claimant's health and safety but also raised issues about the potential liability of the PAs who would be administering the use of the kit.[102]In summary, therefore, we accept that PD2 and PD4 were qualifying disclosures for the purposes of section 43B of the ERA but PD1 and PD3 were not. 1.2 If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to the claimant's employer.[103]We have found that PD2 and PD4 were qualifying disclosures. Since they were made to the respondent who was the claimant's employer, they were protected disclosures for the purposes of the ERA. 2. Dismissal (Employment Rights Act 1996 section 103A) 2.1 Was the reason or principal reason for dismissal that the claimant had made a protected disclosure? If so, the claimant will be regarded as unfairly dismissed.[104]The respondent’s letter of dismissal dated 10 December 2020 (page 106) set out three reasons for dismissal. The first was inconsistent timekeeping, the second was “questioning the respondent’s judgment and treatment regimes”, and the third was coming on shift with a chest infection.[105]We have found as a fact that the claimant did not come on shift “with a chest infection”. We do not accept that that was a genuine reason for dismissal. Equally, while we have found that the claimant may have been inconsistent in her timekeeping, we do not accept the respondent’s case that that was the reason or principal reason for dismissal. The respondent had not seen that as a serious enough issue to warrant raising it with the claimant in any formal way prior to dismissal. In answer to a question from the Employment Judge, the respondent confirmed that the principal reason for dismissal was what she described as the claimant's “gross insubordination”. We are satisfied that the respondent by that was referring to the protected disclosures made by the claimant. In particular, we find that referred to the concerns the claimant raised about the use of the Peristeen bowel irrigation kit. We are satisfied that this was the “insubordination” referred to by the respondent in evidence and the “questioning my treatment regime” referred to in the dismissal letter. We find the respondent was annoyed and affronted by the claimant telling her how to manage her own care after being her PA for less than a year. We find therefore that the principal reason for dismissal was the claimant having made protected disclosures. We find that PD4 was the primary trigger for the dismissal but have found that PD2 also contributed to the deterioration of the relationship between the claimant and the respondent.[106]Our conclusion is that the claimant was automatically unfairly dismissed for making protected disclosures in breach of s.103A of the ERA. 3. Detriment (Employment Rights Act 1996 section 48) 3.1 What are the facts in relation to the following alleged acts or deliberate failures to act by the respondent? D1 The claimant's pay allegedly being reduced by £100 per week, in or around November 2021. D2 The respondent refusing to allow the claimant to take annual leave during a shift she was unable to attend as a result of being in contact with someone who had tested positive for Covid-19. D3 The respondent re-allocating shifts the claimant was due to do to another personal assistant despite the claimant obtaining a negative Covid-19 test result.[107]When it comes to D1, we find that from August 2020 the claimant’s contractual entitlement was to a payment of £480 per week for her normal working days of Monday and Wednesday, i.e. 24 hours at £10 p.h.. We find that from the payslip dated 27 November 2020 the respondent did reduce the claimant's pay by £100 per week, paying her £380 per week. We find that that was a detriment.[108]When it comes to D2, we find that the respondent did refuse to allow the claimant to take annual leave on Wednesday 28 October 2020) when she should have been working but when her shift had been assigned to another PA. because she was awaiting the outcome of a Covid test.[109]In relation to D3, the respondent did not deny that she had reallocated the claimant's shift on Wednesday 28 October 2020 to another PA. We find that she had done so before the claimant telephoned her on the afternoon of Tuesday 27 October to confirm that she had obtained a negative Covid-19 test result. 3.2 If the claimant was subjected to that detriment, was it done on the ground that she made a protected disclosure?[110]Taking the alleged detriments in reverse order, we find that detriment D3 was not done on the ground that the claimant had made a protected disclosure. We are mindful that the question is whether the protected disclosure was a material influence on the decision resulting in the detriment. When it comes to reallocating the claimant's shift, we find that it was not. Having been told by the claimant on Sunday that she would not be able to work on Monday because she had to take a COVID test, we find that the respondent reaaslitically had no option but to seek to ensure that she had PA cover on the days when, as far as she knew, the claimant would not be in a position to work. That included Wednesday 28 October. The respondent could not have left it until the afternoon/evening of Tuesday, the day before the shift, to ensure that there was cover. The respondent’s healthcare makes clear the importance of the PAs to the respondent and she could not risk being “left in the lurch” if the claimant’s test did indeed turn out to be positive. The claimant's claim that she was subjected to detriment D3 on the grounds that she made a protected disclosure fails.[111]When it comes to detriment D2, we accept that the position in fact was that the claimant had not at that point accrued sufficient annual leave to have holiday entitlement left to take. We found the respondent would have been aware that was likely to be the case since the claimant had just returned from two weeks’ holiday. She did not know the position for certain because we found that she did not check the position with her payroll advisers until after refusing the claimant's request. The Tribunal’s experience is that it is not unusual for an employer to allow an employee to take holiday even if they have not yet accrued sufficient holiday entitlement to do so. The claimant was asking for leave on a day which would not disrupt the respondent’s care, since she already had cover arranged (that’s why the client was asking to take it as leave). We also take into account our findings that the COVID incident marked the start of a deterioration in the relationship between the claimant and the respondent and that she was angry with the claimant for leaving her in the lurch. Taking those findings together we do find that PD2 was a material influence on the decision to refuse the claimant leave. In relation to detriment D2, therefore, the claimant's claim that she was subjected to a detriment for making a protected disclosure succeeds.[112]When it comes to detriment D1 the respondent’s position was that the reduction in pay simply reflected a reduction in the hours worked by the claimant. We do not accept that. It is not consistent with our findings of fact. Those are that the claimant continued to work the same hours in November. If anything, the hours which she actually spent carrying out her duties increased because she was required to sleep over. We find that the respondent did not take kindly to the claimant challenging her on issues about the use of the Peristeen kit We find that it was around then (following the Covid disclosure (PD2) and the Peristeen disclosure (PD4)) that there was a step change in the relationship between the claimant and the respondent. In summary, the allowances made for her because she and the claimant were friends ended. It was from then that the respondent reduced the claimant's pay and also from then that the respondent started exercising her right to require the claimant to sleep over which she had not done previously. While we accept that the correlation in time between a protected disclosure or disclosures and detriment does not in itself establish a causative link, we are satisfied in this case that the protected disclosures PD2 and PD4 were a material influence on the respondent’s decision to reduce the claimant's pay. The way the claimant put it in her submissions was that this was the start of a course of “punishment”. Although that may be regarded as slightly over dramatic, we do accept that it is in broad terms an accurate description of what happened.[113]Our conclusion is that the claimant was subjected to detriment D1 because she made protected disclosures PD2 and PD4, with PD4 being the main trigger for the detriment. 4. Remedy for Dismissal/Detriment 4.1 What basic award is payable to the claimant, if any?[114]A remedy hearing has been listed for 29 January 2024 at which these issues will be decided. We did not hear evidence about remedy. One of the issues we will need to decide is the extent of compensation the claimant should be awarded as a result of her dismissal. We heard evidence about the respondent’s house move. We will need to hear evidence about whether that would have led to the claimant’s employment coming to an end even if she had not been automatically unfairly dismissed.[115]In Audere Medical Services Ltd v Sanderson EAT 0409/12 the EAT confirmed that, as matter of principle, there was no reason why a ‘Polkey’ reduction or a reduction for contributory fault could not be made in cases of automatically unfair dismissal, provided the circumstances warrant it. We will need to hear submissions about whether our findings about the deterioration in the relationship between the claimant and the respondent and the reason for it mean that the claimant could have been fairly dismissed at some point in the future and/or that she contributed to the dismissal.[116]At the remedy hearing we will hear submissions about whether the ACAS Code of Practice on Disciplinary and Grievances applied and, if so, whether and to what extent it will be just and equitable to increase or decrease any compensation awarded. We will also hear evidence from the claimant to determine what injury to feelings compensation (if any) should be awarded in relation to the protected disclosure detriment claims which succeeded (detriments D1 and D2). 5. Holiday Pay (Working Time Regulations 1998) 5.1 What was the claimant's leave year?[117]From start of employment i.e. 3 Feb 2020 to 2 February 2021 5.2 How much of the leave year had passed when the claimant's employment ended?118. 45 weeks and 3 days 5.3 How much leave had accrued for the year by that date?119. 4.8 weeks (i.e. 0.87 of the full year entitlement) 5.4 How much paid leave had the claimant taken in the year?120. 3 weeks 5.5 Were any days carried over from previous holiday years?121. .No 5.6 How many days remain unpaid?122. 1.8 weeks 5.7 What is the relevant daily rate of pay?[123]To be decided at the remedy hearing. 6. Unauthorised Deductions 6.1 Did the respondent make unauthorised deductions from the claimant's wages and if so, how much was deducted?[124]Yes. We find the claimant’s normal contracted hours at the time of dismissal were Monday and Wednesday payable at £240 per day. She was paid for 24 hours a day whether she slept over or not. That means there was an unauthorised deduction of £100 per week from the payslip for 27 November 2020 onwards when she was paid at the reduced rate of £380 per week/£190 per day. 7. Breach of Contract 7.1 Did this claim arise or was it outstanding when the claimant's employment ended?[125]Yes 7.2 Did the respondent underpay the claimant for her notice period in the sum of £200?[126]No. The claimant’s contractual (and statutory) entitlement to notice was 1 week. That meant she was contractually entitled to notice pay of £480. She was paid £760 in lieu of notice. The respondent chose to pay in excess of her contractual entitlement. Although the amount paid did not equate to 2 weeks’ notice as the respondent suggested, it was more than the amount payable to the claimant under her contract of employment. There was no breach of contract. 7.3 Did the respondent do the following: 7.3.1 Require the claimant to sleep at the respondent’s house during her shifts, whereas she had previously been able to return home at the end of the evening?[127]We find that the respondent did so require from November 2020 onwards. 7.4 Was that a breach of contract?[128]No. We find that the claimant’s contract required her to provide 24 hour cover and that could include providing it by sleeping over. That requirement was the same for all PAs. The claimant’s pay from August reflected that, being based on 24 hours per day. The respondent did not initially exercise the right to require the claimant to sleep over because they were friends. Instead, she required the claimant to be on call. We find she could have required the claimant to sleep over from the start of her employment. The respondent’s attitude changed from November 2020. From that point she treated the claimant the same as other PAs when it came to the requirement to sleep over. That was not a breach of contract but might have been a whistleblowing detriment had it been pleaded that way. It was not. We find the fact that the claimant did carry out the sleepovers consistent with that being the requirement under her contract. The breach of contract claim fails. Time limits[129]Although not included in the original List of Issues, the respondent pointed out in its amended response that there were time limit issues potentially arising in relation to the detriment claims. Based on our findings, we find that detriment D2 is potentially out of time. It occurred on 27 October 2020. If it is a one-off incident rather than one of a series of similar acts then a claim in relation to it should have been brought by the end of January 2021. The claimant did not start early conciliation in this case until March 2021. Unless detriment D2 forms part of a series of similar acts, therefore, it is out of time unless it was not reasonably practicable for the claimant to bring a claim in relation to it sooner than she did.[130]The claimant's case in submissions was that detriment D2 was the first step in punishing her for the Covid incident. Her case is that the other treatment to which she was subjected, namely deduction from her pay (i.e. detriment D1) and the requirement that she now sleep over (not pleaded as a separate detriment but as part of the breach of contract claim) were other examples of the respondent punishing her and therefore part of a continuing act. We cannot take the requirement to sleep over into account as we have not found that it was a whistleblowing detriment. We can take D1 into account.[131]The case of Arthur says that we must take into account all the circumstances surrounding the acts to decide whether they from a series of similar acts. In this case, detriments D2 and D1 were both decided on by the same person, the claimant’s employer. We have found that there were common reasons why D2 and D1 took place, namely protected disclosures PD2 and PD4. It does not seem to us that Arthur suggests that the detriments have to be acts of the same kind to be a “series of similar acts”. Quite the opposite. We find that D2 and D1 were part of a series of similar acts. We accept the claimant’s submission on this point.[132]The time limit therefore runs from the last of those acts, which was the final deduction from the claimant's pay. That occurred when she received her final pay on 18 December 2020. Early conciliation was begun on 8 March 2021, so within three months of that date. The Early Conciliation Certificate was issued on 19 April 2021. The claim was issued on 18 May 2021 so was within time, taking into account the extension of time arising from early conciliation. That means the claims relating to D2 and D1 were brought in time. Employment Judge McDonald Date: 18 January 2024[1]Protected Disclosures1.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:1.1.1 What did the claimant say or write? When? To whom? The claimant says she made disclosures on these occasions: PD1 Around June/July 2020 verbally informing the respondent that the arrangements for transporting the respondent by car were unsafe and/or unlawful in that1.1.2 Did she disclose information?1.1.3 Did she believe the disclosure of information was made in the public interest?1.1.4 Was that belief reasonable?1.1.5 Did she believe it tended to show that:1.1.5.1 a criminal offence had been, was being or was likely to be committed;1.1.5.2 a person had failed, was failing or was likely to fail to comply with any legal obligation;1.1.5.3 a miscarriage of justice had occurred, was occurring or was likely to occur;1.1.5.4 the health or safety of any individual had been, was being or was likely to be endangered;1.1.5.5 the environment had been, was being or was likely to be damaged;1.1.5.6 information tending to show any of these things had been, was being or was likely to be deliberately concealed?1.1.6 Was that belief reasonable?(a) the respondent was not adequately secured within her wheelchair whilst travelling and(b) the wheelchair was not adequately secured within the vehicle whilst travelling. PD2 Around 25 October 2020 informing the respondent during a phone call that it would be unsafe for [the claimant] to attend work due to having been in contact PD3 Around early November 2020 verbally informing the respondent that the arrangements for transporting the respondent by car were unsafe and/or unlawful in that (a) the respondent was not adequately secured within her wheelchair whilst travelling; (b) the wheelchair was not adequately secured within the vehicle whilst travelling; and(c) the claimant was not insured to drive the vehicle. PD4 Around early November 2020, verbally informing the respondent and another personal assistant (witness D) that initiating the use of bowel irrigation procedures without these being advised by a medical practitioner was putting the respondent’s health at risk.1.2 If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to the claimant's employer.[2]Dismissal (Employment Rights Act 1996 section 103A) 2.1 Was the reason or principal reason for dismissal that the claimant had made a protected disclosure? If so, the claimant will be regarded as unfairly dismissed.[3]Detriment (Employment Rights Act 1996 section 48) 3.3 What are the facts in relation to the following alleged acts or deliberate failures to act by the respondent? D1 The claimant's pay allegedly being reduced by £100 per week, in or around November 2020. D2 The respondent refusing to allow the claimant to take annual leave during a shift she was unable to attend as a result of being in contact D3 The respondent re-allocating shifts the claimant was due to do to another personal assistant despite the claimant obtaining a negative Covid-19 test result. 3.4 If the claimant was subjected to that detriment, was it done on the ground that she made a protected disclosure?[4]Remedy for Dismissal/Detriment4.1 What basic award is payable to the claimant, if any?4.2 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?4.3 If there is a compensatory award, how much should it be? The Tribunal will decide:4.3.1 What financial losses has the dismissal caused the claimant?4.3.2 Has the claimant taken reasonable steps to replace her lost earnings, for example by looking or another job?4.3.3 If not, for what period of loss should the claimant be compensated?4.3.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?4.3.5 If so, should the claimant's compensation be reduced? By how much?4.3.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?4.3.7 Did the respondent or the claimant unreasonably fail to comply with it?4.3.8 If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?4.3.9 If the claimant was unfairly dismissed, did she cause or contribute to dismissal by blameworthy conduct?4.3.10 If so, would it be just and equitable to reduce the claimant's compensatory award? By what proportion?4.4 What injury to feelings award is payable to the claimant?[5]Holiday Pay (Working Time Regulations 1998)5.1 What was the claimant's leave year?5.2 How much of the leave year had passed when the claimant's employment ended?5.3 How much leave had accrued for the year by that date?5.4 How much paid leave had the claimant taken in the year?5.5 Were any days carried over from previous holiday years?5.6 How many days remain unpaid?5.7 What is the relevant daily rate of pay?[6]Unauthorised Deductions 6.1 Did the respondent make unauthorised deductions from the claimant's wages and if so, how much was deducted?[7]Breach of Contract7.1 Did this claim arise or was it outstanding when the claimant's employment ended?7.2 Did the respondent underpay the claimant for her notice period in the sum of £200?7.3 Did the respondent do the following: 7.3.1 Require the claimant to sleep at the respondent’s house during her shifts, whereas she had previously been able to return home at the end of the evening?7.4 Was that a breach of contract?7.5 How much should the claimant be awarded as damages?[1]By an email dated 5 February 2024 the claimant sent an application for reconsideration of the Tribunal’s Judgment sent to the parties on 19 January 2024 (“the Judgment”). The Tribunal in the Judgment found that the claimant was automatically unfairly dismissed for making protected disclosures. However, we found that two of the disclosures (referred to in the Judgment as PD1 and PD3) were not protected disclosures. Those disclosures related to arrangements for transporting the respondent by car. In relation to PD1, we found that there was no disclosure of information and, if we were wrong about that, that the claimant did not reasonably believe that the disclosure was in the public interest, her sole concern being whether she personally was covered by the insurance for the respondent’s vehicle. When it came to PD3, this was a second occasion when the claimant said that she had disclosed information relating to the respondent’s travel arrangements. Again, we found there was no disclosure of information and even if there was, the claimant did not reasonably believe that the disclosure was in the public interest.[2]The claimant’s reconsideration application relates to those decisions.[3]The claimant’s application dated 5 February 2024 appeared to be an incomplete document. On 16 March 2024 the Tribunal wrote to the claimant on my direction asking her to confirm whether that version was the final version or not. If it was not the final version, I directed that the claimant must send the final version to the Tribunal marked for my attention by 28 March 2024. For the avoidance of doubt, I confirm that the time limit for applying to reconsider the Judgment was extended so that the application was made in time.[4]I considered and decided the application on the papers in chambers.[5]The reconsideration application relies on new evidence having become available since the hearing which the claimant says was not available at the time or prior to the hearing. There were two kinds of new evidence. The first was new documentary evidence. These were(i) the Medicines and Healthcare Products Regulatory Agency document headed “Occupied wheelchairs in cars and private transport – reminders of safe use”(ii) “Seatbelts: The Law”. That was from a Government website(iii) the “Motability contract hire agreement terms and conditions for your mobility scheme vehicle” for the respondent’s Motability vehicle insured by RSA. The second kind of evidence was new witness evidence. That was from the PA who we referred to as witness C in the Judgment. We heard her witness evidence at the liability hearing.[6]The claimant’s reconsideration application is somewhat lengthy. In brief, as I understand it, she says that the new evidence shows that the way the respondent was transported in the back of her vehicle was in fact in breach of health and safety requirements and that this amounted to a breach of a duty of care towards the claimant as the respondent’s employee when the claimant was driving the vehicle.
Relevant Law
[7]An Employment Tribunal has a power to reconsider a judgment “where it is necessary in the interests of justice”. Applications are subject to a preliminary consideration by an Employment Judge. They are to be refused if the Judge considers there is no reasonable prospect of the original decision being varied or revoked. If not refused, the application may be considered at a hearing or, if the Judge considers it in the interests of justice, without a hearing. On reconsideration the decision may be confirmed, varied or revoked and, if revoked, may be taken again (Rules 70-73 of the Employment Tribunal Rules 2013 (“the ET Rules”)).[8]The “interests of justice” test allows for a broad discretion. That discretion must be exercised judicially, which means having regard not only to the interests of the party seeking the reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation (Outasight VB Ltd v Brown [2015] ICR D11, EAT para 33).[9]Where the application for reconsideration is based on new evidence the approach laid down by the Court of Appeal in Ladd v Marshall 1954 3 All ER 745, CA will, in most cases, encapsulate what is meant by the “interests of justice”. That means that in most cases, in order to justify the reception of fresh evidence, it is necessary to show:• that the evidence could not have been obtained with reasonable diligence for use at the original hearing• that the evidence is relevant and would probably have had an important influence on the hearing; and• that the evidence is apparently credible.[10]The interests of justice might on occasion permit evidence to be adduced where the requirements of Ladd v Marshall are not met (Outasight at paras 49- 50).[11]I have decided that there is no reasonable prospect of the claimant's application for reconsideration succeeding.[12]The first reason for that is I am not satisfied that the “new evidence” put forward by the claimant meets the test in Ladd v Marshall.[13]When it comes to the MHRA regulatory document and the seatbelt information from the Government website, there is no indication of why that evidence could not have been obtained with reasonable diligence for use at the original hearing. Both are readily available on the internet and in the public domain.[14]When it comes to the Motability contract, the claimant in her reconsideration application says that the respondent failed to disclose the RSA policy information to the Tribunal in the course of proceedings. There is no suggestion that the claimant made an application to the Tribunal for disclosure of that document prior to the final hearing. The claimant says that she had “recently acquired” the document via several lengthy calls to the RSA. There is no indication of why those calls could not have been made prior to the final hearing.[15]When it comes to the new evidence from witness C, the claimant says this arose from a discussion with witness C after the hearing. I do not find any compelling explanation as to why witness C could not have given that evidence at the final hearing itself.[16]On that basis, I find that there is no reasonable prospect of the claimant showing that the new evidence satisfies the test in Ladd v Marshall. It was available (or could by reasonable diligence have been obtained) for the final hearing. There are no reasonable prospects of showing that it would be in the interests of justice to reconsider the Judgment on the basis of that evidence.[17]Even if I am wrong about the evidence not meeting the Ladd v Marshall test my decision would have been the same. it seems to me there is a more fundamental problem with the reconsideration application. The application focuses on showing that the respondent actually did something wrong, either in breaching health and safety rules or her duty of care to employees in the way she was transported in her wheelchair in her vehicle. That is not the question that the Tribunal was deciding in the Judgment. The question we were deciding was whether or not the claimant had made protected disclosures. The question is not whether in fact the respondent was acting in breach of duty or guidelines or legislation relating to transport in a vehicle. The question was whether the claimant had made a disclosure of information and, if so, whether she did so in the reasonable belief that that disclosure was in the public interest. Our finding in the Judgment was that neither was there a disclosure of information nor did the claimant reasonably believe that the disclosure was in the public interest. Even if the new evidence was admitted, it would not alter the Tribunal’s decision. The claimant’s reconsideration application is, I find, an attempt to persuade the Tribunal that the claimant did disclose information and did have a reasonable belief that disclosures PD1 and PD3 were in the public interest. It is, in essence, a challenge to the Tribunal’s findings of fact and the conclusions based on those findings. That is, I find, an attempt to relitigate the case and to have a second bite at the cherry. The appropriate way to seek to challenge those decisions is by an appeal rather than reconsideration.[18]For those reasons, I find that there is no reasonable prospect of the claimant’s application for reconsideration succeeding.
List of Issues
List of Issues
[1]In our Liability Judgment dated 18 January 2024 we found that the claimant was unfairly dismissed for making protected disclosures, that she was subjected to detriments for making protected disclosures, that the respondent had failed to pay her holiday pay for holiday accrued but untaken and had made unauthorised deductions from her wages.[2]The remedy hearing took place on 16 August 2024, having been postponed from the original date of 29 January 2024 for various reasons. The format for the remedy hearing was the same as that for the liability hearing. All parties apart from the respondent attended in person at Manchester Employment Tribunal. The respondent attended by CVP video link.[3]At the remedy hearing we heard evidence from the claimant. We also heard oral evidence from three witnesses on behalf of the claimant. Because we had made an anonymisation order we do not name those witnesses. They were Witness D from the liability hearing, the claimant’s sister (Witness H) and from a friend of the claimant (Witness I). There was also a further written statement from Witness E from the liability hearing. Witness E did not attend to give evidence at the hearing. We also heard evidence from the respondent. The witnesses were cross examined and answered questions from the Tribunal.[4]Because of the number of witnesses, we were not able to hear oral submissions on all the matters which we needed to decide at our remedy hearing. We directed that the parties provide written submissions on the outstanding points. The Employment Judge wrote to the parties to provide guidance on the points on which submissions were required.[5]At the hearing, the parties relied on the documents bundle used at the liability hearing. We had at that hearing also been provided with the claimant's bank statements. At the start of the remedy hearing the claimant provided further documents. There was a measure of dispute between the parties as to whose fault it was that the papers were not in order and prepared for the hearing. Mr Fakunle indicated he had not seen all the documentation provided by the claimant at the start of the hearing. They included a bundle of bank statements covering the period from the liability to the remedy hearings and 17 pages of medical evidence relating to therapy and other treatments received by the claimant.[6]After taking a break to allow Mr Fakunle to consider those documents, he confirmed that he was in a position to continue with the hearing. All parties agreed that it was not in accordance with the overriding objective or in any of the parties’ interests to postpone the hearing. The Tribunal was satisfied that the respondent was not disadvantaged by the late production of the additional bundle. In the event, those documents had little relevance to the decisions that we ended up making. Relevant Law on Remedy Compensation for unfair dismissal
Relevant Law
[7]If a Tribunal finds that an employee has been unfairly dismissed, s.118(1) ERA says that: “Where a tribunal makes an award of compensation for unfair dismissal under section 112(4) or 117(3)(a) the award shall consist of —(a) a basic award (calculated in accordance with sections 119 to 122 and 126, and(b) a compensatory award (calculated in accordance with sections 123, 124, 124A and 126).”[8]The basic award is calculated based on a week’s pay, length of service and the age of the claimant.[9]The compensatory award is "such amount as the tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the claimant in consequence of the dismissal" (s.123(1) ERA).[10]A just and equitable reduction can be made to the compensatory award where the unfairly dismissed employee could have been dismissed at a later date or if a proper procedure had been followed (the so-called Polkey reduction).[11]Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the claimant it shall reduce the compensatory award by such proportion as it considers just and equitable having regard to that finding (s.123(6) ERA).[12]Where the Tribunal considers that any conduct of the claimant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce that amount accordingly (s122(2) ERA).[13]If an employment tribunal decides to award compensation for unlawful discrimination, s.124(6) of the Equality Act 2010 provides that it must be calculated in the same way as damages in tort. The aim, is that ‘as best as money can do it, the [claimant] must be put into the position she would have been in but for the unlawful conduct’ (Ministry of Defence v Cannock and ors 1994 ICR 918, EAT). Compensation for protected disclosure detriment[14]S.49 of the Employment Rights Act 1996 provides that where a Tribunal finds a complaint of detriment for making protected disclosures well-founded, it (1)(b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.[15]In Virgo Fidelis Senior School v Boyle 2004 ICR 1210, EAT, the EAT held that it was appropriate to adopt the same approach to compensation in whistleblowing detriment claims as has been taken in discrimination cases. In contrast, injury to feelings compensation cannot be awarded for an automatic unfair dismissal under s.103A of the Employment Rights Act even where the principal reason is making protected disclosures.[16]Awards for injury to feelings are compensatory. They should be just to both parties, fully compensating the claimant (without punishing the respondent) only for proven, unlawful acts for which the respondent is liable. Tribunals must remind themselves of the value in everyday life of the award by reference to purchasing power or earnings.[17]There are three bands of award for injury to feelings following Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 CA and uprated in Da’Bell v NSPCC [2010] IRLR 19 EAT: i) The top band: sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment ii) The middle band: this should be used for serious cases, which do not merit an award in the highest band. iii) the lower band: where the act of discrimination is an isolated or one-off occurrence. There is within each band considerable flexibility, allowing a Tribunal to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.[18]Presidential Guidance was issued on the Vento bands on 5 September 2017. The fourth addendum to that guidance applies in respect of claims presented on or after 6 April 2021, which applies to the claimant’s claim. It says the Vento bands shall be as follows: a lower band of £900 to £9,100 (less serious cases); a middle band of £9,100 to £27,400 (cases that do not merit an award in the upper band); and an upper band of £27,400 to £45,600 (the most serious cases), with the most exceptional cases capable of exceeding £45,600.[19]In making an award for injury to feelings the task of a Tribunal is to consider what degree of hurt feelings has been sustained and to award damages accordingly, Murray v Powertech (Scotland) Ltd [1992] IRLR 257 EAT. In Ministry of Defence v Cannock [1994] I.C.R. 918 the EAT said that an award for injury to feelings is not automatically to be made whenever unlawful discrimination (or in our case protected disclosure detriment) is proved or admitted. Injury must be proved. However, it went on to say that it will often be easy to prove, in the sense that no tribunal will take much persuasion that the anger, distress and affront caused by the act of has injured the applicant's feelings. But it is not invariably so. Mitigation[20]Employees are under a duty to mitigate loss. The general approach to mitigation is summarised by Langstaff P in Cooper Contracting Ltd. v Lindsay UKEAT/0184/15 at paragraph 16. In summary, the burden of proving a failure to mitigate lies with the respondent. If evidence as to mitigation is not put before the Tribunal by the respondent, the Tribunal has no obligation to find it. What has to be proved is that the claimant acted unreasonably; she does not have to show that what she did was reasonable. There is a difference between acting reasonably and not acting unreasonably. The Tribunal is not to apply too demanding a standard to the claimant; after all, she is the victim of a wrong. She is not to be put on trial as if the losses were her fault when the central cause is the act of the wrongdoer. In a case in which it may be perfectly reasonable for a Claimant to have taken on a better paid job that fact does not necessarily satisfy the test. It will be important evidence that may assist the Tribunal to conclude that the employee has acted unreasonably, but it is not in itself sufficient." Compensation for failure to provide written particulars of employment[21]The material provisions of section 38 of the Employment Act 2002 state: "(1) This section applies to proceedings before an employment tribunal relating to a claim by a worker under any of the jurisdictions listed in Schedule 5. … (3) If in the case of proceedings to which this section applies—(a) the employment tribunal makes an award to the worker in respect of the claim to which the proceedings relate, and(b) when the proceedings were begun the employer was in breach of his duty to the worker under section 1(1) or 4(1) of the Employment Rights Act 1996 …, the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead. (4) In subsections (2) and (3)— (a) references to the minimum amount are to an amount equal to two weeks' pay, and (b) references to the higher amount are to an amount equal to four weeks' pay. (5) The duty under subsection (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable."[22]By virtue of schedule 5 to the 2002 Act, section 38 applies to complaints of unfair dismissal, unauthorised deductions under section 23 of the ERA 1996 and to unlawful detriments in employment under section 48.[23]A question which arose in this case was whether an award could be made under s.38 where the claimant had not raised it in her claim form. In Levy v 34 & Co Ltd [2021] UKEAT 0033_20_1202 there was an appeal to the EAT because Tribunal did not make an award under s.38 in a case in which the claimant’s unauthorised deduction of wages claim had succeeded. There was no claim for a s.38 award in the claim form in that case - it was first raised in the Schedule of Loss sent to the Tribunal. The respondent in that case did not appear and was not represented at the Tribunal hearing in the case. The EAT rejected the submission that the Tribunal was bound to order a s.38 uplift whether or not it is asked to do so because s.38(3) is in mandatory terms. It said that it was primarily for the claimant to make known to the Tribunal what they are claiming because “that ensures that the nature of the claim will be made known to the respondent and only then can there be a fair hearing” (para 38).[24]In reaching its decision in Levy the EAT referred to and drew support from the EAT case of Stanbridge v Brookes (UKEAT/0032/14/BA) in which the Tribunal had made a s.38 award when one had not been claimed in the claim form. The Tribunal in Stanbridge raised the s.38 matter of its own motion. In that case, the requirement in s.1 of the ERA had not in fact been breached so no s.38 award should have been made. The respondent in Stanbridge did not take part in the Tribunal hearing. The EAT in that case described it as “unfortunate” that there had been no proper notice of the s.38 issue to the respondent and rules that a Tribunal in such circumstances must be “astute” to any possible defences. The EAT in Levy noted that the common feature of the two cases was that the respondent had no notice of the uplift claim. It said that the Tribunal in Levy could not have fairly decided the s.38 issue without giving notice to the respondent. At most, it said, rather than deciding the issue at the hearing (which would have been an error of law) the Tribunal should have given notice of the issue to the respondent and subsequently investigated further). Uplift in compensation for failure to comply with the ACAS Code[25]S.207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“s.207A”), states at subsection (2): ‘If, in the case of proceedings to which this section applies, it appears to the employment tribunal that(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,(b) the employer has failed to comply with that Code in relation to that matter, and(c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25 per cent.’[26]The disciplinary part of the ACAS Code '…is intended to apply to any situation in which an employee faces a complaint or allegation that may lead to a disciplinary situation or to disciplinary action. Disciplinary action is or ought only to be invoked where there is some sort of culpable conduct alleged against an employee' (Holmes v Qinetiq Ltd [2016] IRLR 664).[27]In SPI Spirits (UK) Limited , Yuri Shefler v Vladislav Zabelin [2023] EAT 147, HHJ Auerbach in the EAT observed that the ACAS Code is intended to be applied and followed as and when disputes or concerns arise in the workplace, on either side, with a view to assisting their resolution by fair internal process. The employer ought to follow a fair disciplinary procedure, conforming to the Code, where it is alleged that the employee has behaved unsatisfactorily in some respect. The focus is on what the employer alleged, not on what the outcome of the process turned out to be, or whether the allegation was, in fact, well founded.[28]In Spirit the EAT held that where the employer dismisses or takes other action against an employee because, in substance, of what it regards as, or potentially as, culpable conduct, the discipline provisions of the Code will apply. They will not cease to do so by virtue of the tribunal finding that such conduct in fact amounted to a protected disclosure.[29]In Acetrip v Dogra UKEAT/0016/20/VP (18 March 2019) HHJ Auerbach in the EAT said at para 103: “There is, inevitably it seems to me, a punitive element to an adjustment award under these provisions, because the Tribunal is not simply compensating a claimant for some additional readily identifiable or quantifiable loss that he has suffered. The adjustment is bound, to a degree, to be reflective of what the Tribunal considers to be the seriousness and degree of the failure to comply with the ACAS Code on the employer’s part.”[30]In Slade and anor v Biggs and ors 2022 IRLR 216, the EAT confirmed that the discretion given to a Tribunal by s.207A is very broad, both as to whether there should be an uplift at all, and as to the amount of any uplift. While the top of the range of 25% should undoubtedly be applied only to the most serious cases, the statute does not state that such cases should necessarily have to be classified, additionally, as exceptional.[31]In Slade, the EAT suggested that a Tribunal in applying s.207A “might choose to apply a four-stage test:a. Is the case such as to make it just and equitable to award any ACAS uplift?b. If so, what does the Tribunal consider a just and equitable percentage, not exceeding although possibly equalling, 25%?c. Does the uplift overlap, or potentially overlap, with other general awards, such as injury to feelings; and, if so, what in the Tribunal's judgment is the appropriate adjustment, if any, to the percentage of those awards in order to avoid double-counting?d. Applying a final sense-check, is the sum of money represented by the application of the percentage uplift arrived at by the Tribunal disproportionate in absolute terms and, if so, what further adjustment needs to be made?” Interest[32]In discrimination cases, legislation requires the to consider whether to award interest on awards for discrimination. The basis of calculation is set out in the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations [1996] SI 2803 (as amended). For injury to feelings awards interest is awarded for the period beginning on the date of the act of discrimination and ending on the day the amount of interest is calculated. For other awards interest commences at a midpoint. There are no equivalent regulations applying to awards of compensation for protected disclosure detriment. Taxation[33]In relation to taxation, the Court of Appeal in Moorthy v HMRC [2018] EWCA Civ 847 held that awards for injury to feelings were to be treated as tax free whether or not related to the termination of employment. This position changed from 6 April 2018 by an amendment to section 406 of the Income Tax (Earnings and Pensions) Act 2003 so that although “injury” in subsection (1) includes psychiatric injury it does not include injured feelings. This amendment has effect for the tax year 2018-19 and subsequent tax years. Section 406 which deals with the tax exemption provides: “(1) This chapter does not apply to a payment or other benefit provided –(a) in connection with the termination of employment by the death of an employee, or(b) on account of injury to, or disability of, an employee. (2) Although ‘injury’ in subsection (1) includes psychiatric injury, it does not include injured feelings.”[34]This means that an award of compensation for psychiatric injury falls within the tax exemption but an award compensating for injury to feelings does not if it is “in connection with termination of employment”. Therefore, an award for injury to feelings is taxable to the extent that it exceeds £30,000 if made in connection with termination of employment. If not made in contention with termination of employment, it is not taxable.[35]To avoid any disadvantage to a claimant, a Tribunal should gross up any sums which would be subject to tax on receipt (British Transport Commission v Gourley [1955] UKHL 4). That requires the Tribunal to estimate the tax the claimant will have to pay on receipt of the Tribunal award and add that sum back into the award to cancel out the tax burden on them. The purpose is to place in the claimant's hand the amount they would have received had they not been treated unlawfully. Findings and conclusions[36]We have found it more convenient to set out our findings of fact relevant to each element of the compensation claimed rather than setting out the findings of fact in one block at the start. Compensation for the claimant's automatic unfair dismissal Basic Award[37]In our Liability Judgment we found that the claimant's gross pay was £480 per week. That was based on her working 2 x 24 hour days payable at £10 per hour. The claimant was employed for less than one year. That means that she is not entitled to a basic award. There is no provision in the Employment Rights Act for a minimum basic award in cases of whistleblowing dismissals. Compensatory Award[38]The claimant was dismissed with effect from 10 December 2020 but received two weeks notice. We have calculated her loss of earnings from 24 December 2020. There was a dispute between the parties about what would have happened had the claimant continued to be employed by the respondent. That turned on two particular issues. The first was whether the claimant would have continued working as a personal assistant for the respondent after the respondent moved to Yorkshire with effect from 25 June 2021. The second was whether the relationship between the respondent and the claimant would have broken down to such an extent that the respondent would have terminated the employment in any event.[39]When it comes to whether the claimant would have continued to be employed by the respondent after the move to Yorkshire, the parties gave diametrically opposed evidence. The respondent’s evidence was that it was always intended that she would only take two of her personal assistants (namely D and G) with her when she moved to Yorkshire. At the remedy hearing the respondent said (for the first time) that that was because the claimant did not share her religion and it would have been inappropriate for her to move with her to Yorkshire.[40]The claimant’s case was that it had always been intended that she would continue working for the respondent after the move to Yorkshire. We prefer the claimant’s evidence on that point. We find that at the point where the claimant was employed, she and the respondent were friends and there was no indication that the claimant’s religious beliefs meant that the respondent considered it inappropriate for her to continue working for her after the move to Yorkshire.[41]Whatever the intention, however, we find that in reality the claimant would have ceased being employed by the respondent shortly after the respondent moved to Yorkshire. We find that the claimant's journey to work before the move was around 0.9 miles each way. In contrast, the journey to and from Yorkshire would have involved journey of 60 Miles (between 1.5 and 2 hours) each way.[42]Witness D, who did continue to work as a protected act for the respondent after the move Yorkshire, confirmed that she had ended her employment with the respondent by 23 July 2021. We accept her evidence that that was partly because of the journey involved to get to the respondent’s new home but primarily because the respondent had confirmed that she was not in a position to pay for petrol/mileage for the personal assistants to travel from their homes to Yorkshire.[43]The claimant's evidence was that she would have been quite happy to move to Yorkshire. She had a campervan and friends in Yorkshire and felt that it would have been an opportunity to spend time in a geographical location that she loved. We accept that there was little to tie the claimant to her home in the sense that she had no caring responsibilities at home. The claimant did have her lodger, E, but he was a longstanding lodger and we do not find that that would have prevented the claimant from continuing to work for the respondent in Yorkshire. The claimant's evidence, however, was that financial considerations were important to her. She did not have a lot of money. On balance we find that the claimant would have initially continued to work for the respondent after the move to Yorkshire but that she would not have continued to do so once the respondent confirmed that she was not in a position to pay mileage/petrol. We say that because the costs of driving back and forth to Yorkshire would have been significant relative to the amount the claimant was paid. It would, in short, not have been worth her while to continue doing so, however pleasant the opportunity to see her friends in Yorkshire might have been.[44]On balance, therefore, we have decided that the claimant's employment would have come to an end at the same time as Witness D i.e. on 23 July 2021, after it became apparent that the respondent would not be paying mileage. That would have been apparent at the time when the claimant received her first pay, i.e. at the same time as witness D was told that was the position.[45]As to the second point, there was evidence that the respondent was unhappy with the claimant aside from the protected disclosures. Witness D gave evidence that the respondent had raised with her concerns about the claimant's performance. We accept that the respondent had not raised those matters with the claimant. Because the claimant had not been employed for two years, however, the respondent could, absent any protected disclosures, have fairly dismissed the claimant at any time before the date of 23 July 2021 when we have decided the claimant's employment would have come to an end. The question is whether the respondent’s unhappiness with the claimant was such as to mean that she would have terminated her employment prior to 23 July 2021. We have decided that she would not have. We accept the evidence that the respondent had a tendency to “hire and fire” personal assistants. However, the claimant had been working for the respondent as a personal assistant for over nine months.[46]This was not a case where the respondent had taken on a new personal assistant and found them to be incompatible with her demands. We also think that realistically the respondent would have preferred to take the personal assistants that she had with her when she moved to Yorkshire, at least until she was settled in in Yorkshire and could find more locally based personal assistants to replace those that she was unhappy with. We accept that the respondent was not entirely happy with the claimant. That, we find, was not solely down to the protected disclosures – the respondent was unhappy about other matters which the claimant had challenged her about, such as walking her dog and the car insurance which we found in the Liability Judgment did not amount to protected disclosures. We find, however, that this was a case of “better the devil you know” and that the respondent would have put up with the claimant until she was settled in Yorkshire.[47]We do not, therefore, find that there are grounds for reducing the compensatory award further to reflect a chance that the claimant would have been dismissed by the respondent prior to the move to Yorkshire.[48]In terms of the amount the claimant would have earned during the period to 23 July 2021, our starting point is that the claimant's basic pay was £480 gross per week and £384 net. We find she would have earned that for the 30 weeks up to 23 July 2021, giving a total of £11,520.00.[49]We accept the claimant's evidence and submission that she would (in addition to her normal working days) have provided cover for personal assistants D and G when they took annual leave. Witness D worked one day a week. On balance, we find that the claimant would have been likely to cover all of D’s annual leave. We find that D’s annual leave entitlement of 5.6 weeks equated to 5.6 days. At the claimant’s standard rate of £240 per day gross or £192 net that would amount to £1,075.20 if the claimant covered all of D’s holidays for a year. For the 30 week period to 23 July 2021 that equates to 30/52 of that annual total which is £620.31.[50]When it comes to personal assistant G, he worked four days a week. Covering his holiday for the whole year at 5.6 weeks x 4 days at the claimant’s net rate of £192 per day would mean the claimant would have earned an additional £4,300.80. For the 30 week period to 23 July 2021 that would amount to £2481.23. Doing our best with the evidence before us, we find the claimant would have covered half of G’s holiday during that period with Witness D doing the other half. In reaching that conclusion we take into account the fact that Witness D did not work weekends and would have been unlikely to cover G’s weekend absences. That gives a figure of £1,240.62 which the claimant would have earned for covering G’s holiday up to 23 July 2021.[51]Adding those figures together we find the claimant’s net loss of earnings up to 23 July 2021 would total £11,520.00 + £620.31 + £1,240.62 giving a total loss of earnings resulting from the dismissal of £13,380.93. Mitigation and earnings for which the claimant needs to give credit[52]The respondent submitted that the claimant had acted unreasonably by failing to mitigate her loss. We do not accept that submission. We accept the claimant's evidence that the dismissal had a profound effect on her. We find that it triggered PTSD which the claimant had previously suffered and had a significant impact on her confidence and stress and anxiety levels. Despite that, we find the claimant did seek and obtain an offer of work but that that was not forthcoming because of the inability to obtain a reference. We find that the claimant further took steps to mitigate her loss by taking on an additional lodger from April 2021. On that basis we do not accept that the claimant has unreasonably failed to mitigate her loss.[53]The claimant, we find, would not have taken on an additional lodged had it not been for her dismissal. The income earned from that additional lodger in the period up to 23 July 2021 has to be deducted from the compensatory award because that is income the claimant would not otherwise have had. Based on the claimant's bank statements we find that from April to July 2021 the claimant's tenant (JN) paid rent of £369.35 per month. That amounts to a total of £1,477.40. Deducting that from the compensatory award gives a figure of £11,903.53. That is the compensatory award prior to any uplift or reduction. Compensation for detriment arising from protected disclosures[54]We have found that the respondent subjected the claimant to two detriments. The first was reducing the claimant's pay by £100 per week. Those deductions were evidenced on the payslips. £100 was deducted from the payslip dated 27 November 2020; £300 from the payslip for 11 December 2020 and £100 deducted from the payslip for 18 December 2020. We find that the total deductions amounted to £500. We award the claimant compensation of that amount.[55]We do not award financial compensation for Detriment 2. That was the refusal to allow the claimant to take annual leave. Had we awarded compensation it would have been one day’s holiday pay. However, we are already awarding the claimant 1.8 days’ holiday pay for holiday untaken. Had the claimant been allowed to take holiday when requested (i.e. in Detriment 2), the unpaid holiday pay would have been reduced by one day. If we were to award a holiday day’s pay for Detriment 2 in addition to 1.8 days’ pay for the holiday pay claim, that would amount to double counting.[56]Compensation for being subject to a detriment for making protected disclosures can also lead to an award of compensation for injury to feelings. At the hearing we explained to the claimant that the injury to feelings we were concerned with was that arising from the detriments not from the unfair dismissal. A Tribunal cannot award compensation for injury to feelings arising from an automatically unfair dismissal. Much of the evidence at the hearing was in relation to the impact on the claimant of the dismissal. We accept that that dismissal did have a profound effect on the claimant. However, we are concerned with the impact of the two detriments which we found occurred.[57]We accept the claimant’s evidence that being subjected to those detriments by somebody who she regarded as a friend was upsetting. We find (particularly in relation to the unlawful deduction) that this was something which did cause the claimant upset meriting an award of injury to feelings. The claimant, however, continued to work for the respondent despite the deductions and the evidence did not suggest that there was such a breakdown in their relationship as a result of the detriments such as to merit an award in the higher Vento band, which is what the claimant had originally suggested in her Schedule of Loss. We accept that that may have been because she misunderstood the extent to which a Tribunal can award compensation for injury to feelings as a result of an automatically unfair dismissal.[58]The claimant in her evidence, in support of her contention that the employment would have continued, made it clear that the relationship was not one that she viewed as at an end or irreparably damaged by the detriments. Given that her evidence was that she would have continued to work for the respondent, we do find that an award at that level is appropriate. On balance, we find that find that in this case the injury to feelings falls mid-way into the lower Vento band. At the relevant time the lower Vento band was from £900 to £9,100. In this case we find that the appropriate award is £4,000. That reflects the upsetting nature of the detriments but also the fact that it did not fundamentally destroy the relationship between the claimant and the respondent.[59]If we were awarding compensation for injury to feelings for discrimination, we would award interest on the injury to feelings. The deduction in this case took place in 2020. We do find it appropriate in those circumstances to compensate the claimant for an amount equivalent to the interest that she would have earned on that injury to feelings award had it been a discrimination award. It seems to us that the case law indicates that compensation for injury to feelings for protected disclosure detriments is analogous to compensation for discrimination. Although there are no specific regulations setting out how interest should be awarded (and when) in relation to injury to feelings compensation for detriments, we find it is appropriate to adopt the approach that would be adopted in relation to injury to feelings. That means that we award compensation equivalent to 8% interest from the date of the more serious of the detriments (i.e. the first deduction on 27 November 2020). At 8% the interest on £4,000 is £320 per annum. That gives a daily rate of £0.87. There are 1,376 days from 27 November 2020 to the date of our decision on remedy on 28 August 2024, which gives total interest of £1197.12. We include that in the figure of compensation for the detriments suffered by the claimant.[60]That means the total compensation we award by way of compensation for the injury to feelings arising from the protected disclosure detriments is £5,197.12.[61]The total award including compensation for injury to feelings and for financial loss for the protected disclosure detriments is £5697.12. Holiday Pay[62]We find that the claimant was entitled to 1.8 days’ holiday. At the basic rate of £480 per week we find that amounts to £864. Failure to provide written statement of terms and conditions[63]The claimant included in her Schedule of Loss a claim for a payment under section 38 of the Employment Act 2002 for the respondent’s failure to provide terms and conditions. For the respondent, Mr Fakunle argued that the Tribunal did not have jurisdiction to make that award because the claimant had not brought a claim for it in her claim form.[64]The first question we had to decide was whether we had jurisdiction to make the award. Section 38 appears to us to be in mandatory terms. It is not a freestanding claim. It does not seem to us on the face of section 38 that a claimant has to specifically plead in their ET1 that they are bring a claim for compensation for a failure to provide terms and conditions. We had brought the parties’ attention to the Levy case so they could address it in their written submissions.[65]Mr Fakunle submitted that the Levy case supported the respondent’s case that no s.38 award should be made in this case because the claimant had not included such a claim in her claim form. We noted that in Levy and Stanbridge the EAT was dealing with cases where a Tribunal had (or it was argued should have) made an award under section 38 when the respondent was not aware that such an award was potentially going to be made.[66]We do not understand Levy to say that a failure by a claimant to include a s.38 award in their claim form deprives the Tribunal of power to make such an award. Instead, it seems to us that Levy decided that it was not possible to have a fair hearing of the s.38 issue where the respondent had had no notice that the claim was being brought and so no opportunity to respond. That is not the case here. The claimant had included the claim for a failure to provide a statement of terms and conditions in her original Schedule of Loss which was included in the liability bundle. She had repeated it in her updated Schedule of Loss. We raised that matter with the parties at the remedy hearing so that the respondent had an opportunity to make submissions on that issue and indeed it did so. This is not, we find a case where it would be unfair to consider making a s.38 because the respondent would be denied an opportunity to make submissions about why an award should not be made.[67]We have decided that we do have the power (and indeed an obligation to consider) making a s.38 award. We then considered whether the respondent had indeed failed to provide a statement of terms and conditions. Mr Fakunle relied on the written contract of employment sent to the claimant in November 2020 at pages 72-86 of the liability hearing bundle. Our finding, however, was that that was not a genuine statement of the claimant’s terms and conditions. It purported to be a zero hours’ contract. We do not accept that a document which purports to be (but bears no relation to) an employee’s terms and conditions can satisfy section 1 of the ERA. We find the respondent failed to comply with the obligation to provide the required statement of particulars.[68]We do not find that there are exceptional circumstances which means that it is not appropriate to award two weeks’ gross pay. However, we take into account the fact that the respondent in this case is an individual employer. The situation is somewhat different from the conventional employment relationship which is an arms’ length professional relationship. Although the respondent had some access to HR support, this was not a case where there was a large employer who had administrative resources or HR resources on which they could rely. In those circumstances we do not find it appropriate to award four weeks’ gross pay but do award two weeks’ gross pay. That amounts to £960. ACAS Uplift[69]The respondent submitted that the ACAS Code of Practice on Discipline and Grievance did not apply to the claimant because she did not have two years’ service and so could not claim “ordinary” unfair dismissal. There is nothing in the Code of Practice which suggests that it is not applicable to those who have fewer than two years’ service. In this case we find that the compliance with the Code was minimal. There was no kind of disciplinary process prior to the application of the sanction of deduction of wages (D1). There was no attempt to engage with the claimant prior to her being sent the letter of dismissal (at page 106 in the liability bundle) on 10 December 2020. We accept that the claimant was given an opportunity to appeal and that the respondent did respond to her appeal letter. The appeal was dealt with in writing only and was dealt with peremptorily.[70]We accept that the respondent is an individual employing personal assistants rather than a business employing employees. We find she did have access to HR support (it was they who drafted the letter for her) but accept that this was not a case of an employer with large administrative resources or an internal HR department. Notwithstanding that, the extent of the failure to comply with the Code was unreasonable and we do find it just and equitable to make an uplift award in this case of 15%.[71]When it comes to the elements of our award to which that uplift applies, we find it clearly applies to the compensatory award which related to a dismissal which the respondent alleged arose from the claimant’s conduct.[72]We considered whether it also applies to the award we have made in relation to the protected disclosure detriments. There was no disciplinary process followed before imposing the sanction of a deduction from pay. We find, however that the sanctions imposed in detriments D1 and D2 were because of conduct on the claimant’s part, namely PD2 and PD4. Spirit confirms that the fact that the sanctions were imposed because of conduct which is subsequently found to be protected disclosures does not prevent the Code from applying. We find that the Code did apply to this aspect of the case. The respondent imposed what was in effect a disciplinary sanction (though not labelled as such) because of conduct on the claimant’s part. The Code applied to that – if the respondent wanted to take action because of the claimant’s conduct she should have followed the process laid out in the Code.[73]That means we apply that uplift to the compensatory award and to the award in relation to the protected disclosure determinants. The uplift does not apply to the award for failure to provide particulars of employment nor to the holiday pay claim.[74]Applying that uplift of 15% to the compensatory award increases it from £11,903.53 to £13689.05.[75]Applying that uplift of 15% to the award relating to protected disclosure detriments increases it from £5697.12 to £6551.69.[76]Applying the “sense check” referred to in Slade we do not find that increase renders the compensation disproportionate so no further adjustment is required. Notice Pay[77]The claimant suggested that she should have been entitled to six months’ notice pay. We did not find that that was the case. Her breach of contract complaint failed. Taxation[78]We have not grossed up any of the amounts awarded to take into account of tax being deducted from the moneys received by the claimant. That is because:a. We have awarded the holiday pay and the award for deductions from pay in D1 on a gross basis.b. We have assumed that the award of compensation for injury to feelings for the protected disclosure detriments will not be taxable because it was not in connection with termination of employment.c. We have assumed that the compensatory award for unfair dismissal will be free from deduction of tax because it falls within the £30,000 tax-free amount in connection with termination of employment.[79]If any of those assumptions are incorrect, resulting in the claimant being required to pay tax on amounts we have assumed will not be taxable, she should apply for a reconsideration of our decision so we can undertake the appropriate grossing up exercise. Total amount awarded[80]The total amount awarded to the claimant which must be paid by the respondent is £13689.05 + £6551.69 + £864 + £960 = £22064.74. Recoupment[81]The claimant had not received any state benefit (other than pension) and so the recoupment regulations do not apply. Employment Judge McDonald Date: 9 October 2024