Ms V Baptie v VPS PVT Ltd (in creditors’ voluntary liquidation): 2408510/2021
EMPLOYMENT TRIBUNALS
Case No 2408510/2021
Between
Ms V BaptieClaimantVPS PVT Ltd (in creditors’ voluntary liquidation)Respondent
Before
Employment Judge SlaterDate 18 June 2024
JUDGMENT
[1]The complaint of unfair dismissal is well founded. The respondent is ordered to pay to the claimant the sum of £5063 as compensation for unfair dismissal.[2]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply to this award.[3]The respondent was in breach of contract by dismissing the claimant without giving 8 weeks’ notice. No award of damages is made since the claimant has been compensated for the balance of the notice period in the compensatory award for unfair dismissal.[4]The respondent made an unauthorised deduction from wages by not paying the claimant in lieu of accrued but untaken holiday on termination of employment and the respondent is ordered to pay to the claimant the sum of £106.92 being the gross sum unlawfully deducted. Case No. 2408510/2021 2[5]The complaint of failure to make reasonable adjustments is well founded. The respondent is ordered to pay to the claimant compensation of £2000 for injury to feelings plus interest of £480.
REASONS
[1]The complaints brought by the claimant were: unfair dismissal under regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE); unfair dismissal under the “ordinary” provisions in the Employment Rights Act 1996; a complaint of wrongful dismissal (failure to give due notice of termination of employment); a complaint in respect of not paying accrued but untaken holiday pay on termination of employment; and a complaint of failure to make reasonable adjustments.[2]Less than two weeks before this final hearing, on 5 June 2024, the respondent company went into creditors’ voluntary liquidation. This did not prevent the Tribunal dealing with the claim and the claimant said she wished to proceed with this. Case No. 2408510/2021 2
The Issues
[3]The issues we discussed at the start of the case were largely as recorded at a case management preliminary hearing in 2022. However, we added the issue of disability into the List of Issues since the respondent had disputed disability and that remained an issue. Miss Boyle confirmed that the claimant was not bringing a complaint of s.15 discrimination (discrimination arising from disability) in relation to the claimant’s dismissal.[4]Also, towards the end of the hearing, I amended the issue in relation to the regulation 7 unfair dismissal complaint since it had reflected the pre 2014 wording. The issue, as amended, was simply: was the reason or principal reason for the dismissal the transfer?[5]The amended list of issues is set out in the Annex to these reasons. Evidence and Witnesses[6]The respondent had presented a response to the claim but did not attend this hearing. We have, therefore, taken the grounds of resistance and the respondent’s witness statements as written representations in this case. We heard evidence from the claimant and from Ms Wilkins and Mrs Booth, on behalf of the claimant. There were written witness statements for these witnesses. We also had a statement from Mr Swift, on the claimant’s behalf, but he did not attend to give evidence. We agreed to read this statement and give it such weight as we considered appropriate. There were also some written witness statements on behalf of the respondent, from Mr Singh, company director, Sharon Creasey and Miss J Hewson, but these witnesses did not attend to give evidence. We discuss these statements in paragraphs 30 and 31 below.[7]We had an electronic bundle of documents of 229 pages and a supplementary bundle.
Findings of Fact
[8]The claimant began her continuous employment with what was then Lincolnshire Cooperative Limited as a Post Office counter clerk on 19 August 2012. Following an accident in May 2020, the Co-op made adjustments for the claimant because of back, neck and shoulder pain, including a chair to sit on when she needed to, a special mat to stand on and also other staff helped her when lifting heavy parcels was necessary.[9]On 16 February 2021 the claimant was formally notified by a letter from the Co-op that the business in which she was employed would be transferring to VPS Group operating out of new premises. The letter said that personal employee files would be delivered to VPS Group on or shortly after the transfer. We find it more likely than not that this was done and that the personal information about the claimant which transferred to the respondent included information about the claimant’s disability issues.[10]Shortly before the transfer was due to take place, the claimant and other employees in the business had a meeting with Mr Singh, the owner and director of the Case No. 2408510/2021 3 respondent. At this meeting Mr Singh promised to keep everything the same for 12 months after the transfer and said that their contracts would not change. Mr Singh assured them that they would not have to lock up the premises on their own.[11]On either 24 or 26 February 2021 there was a transfer of the business in which the claimant was employed to the respondent, to which the Transfer of Undertakings (Protection of Employment) Regulations applied.[12]Ms Wilkins, who was the manager of the store, helped physically move furniture into the new premises. Mr Singh tried to put chairs back in the van saying that they would not need those, but Ms Wilkins told him that they needed a chair for the claimant to be able to sit because of her physical problems and also a chair for a pregnant employee, so some chairs were taken into the premises.[13]Mr Singh questioned the need for the mat which the respondent used, and Ms Wilkins explained to him how that was needed for the claimant.[14]We find that the claimant was able to use the mat when working in the new premises after the transfer, but Mr Singh told her that she had to put the mat away when she had finished work.[15]The new premises had three Post Office tills rather than the eight at the previous location. One of these tills was in an enclosed area used for foreign currency. In this enclosed area there would be room for a chair to sit on and there was also a heater in there. One of the other tills had room for a chair but this might need to be moved from time to time because of parcels going in and out. The other till had a door behind it through which people went in and out so anybody using the chair there would have to keep moving the chair.[16]Mr Singh, via the managers, tried to allocate the claimant to the till where she was not able to sit undisturbed because of the chair being behind the door. However, when Ms Wilkins was working with the claimant, she reallocated the claimant to another till. When Sharon Creasey, the assistant manager, was working, the claimant was required to work on the till where the door made it difficult to use the chair. Mr Singh said that he did not want anyone working in the enclosed area.[17]After the transfer, the shop hours stayed the same, except that the closing time on Saturday was put back from 3.00pm to 5.30pm.[18]We find that it was the practice, up to the time that Ms Wilkins went on leave then furlough in March 2021, that no employee ever opened or closed the shop on their own. Employees in the Post Office dealt with substantial amounts of cash. No employee was ever rostered to work alone, opening or closing the shop, until in a rota for 5 April 2021, for the first time, the claimant was rostered to work alone.[19]The claimant had never closed up the shop herself. She had always worked with either Ms Wilkins or the assistant manager, Ms Creasey, or (if one of those was on holiday) another employee, Dean, who acted up in the absence of the manager on leave. The manager or acting manager did the closing of the safe, locking up and setting the alarm. The claimant was not a keyholder and did not want the responsibility of these tasks. With the Co-op, the employees also worked with a security officer but there was no security officer at the new shop. Case No. 2408510/2021 4[20]On 4 April 2021, Mr Singh produced a rota which showed that the claimant would be working on her own in the afternoon of 5 April 2021, working alone from 14:45 to 15:45. The claimant sent a message in response to this rota saying she did not feel comfortable or confident locking up on her own and would appreciate it if Mr Singh could find a solution to accommodate her. Mr Singh replied, saying he would get support for her, to help opening up or closing, but eventually everyone needed to do everything.[21]On 5 April 2021, the claimant sent a message to Sharon Creasey, the assistant manager, saying she was not coming into work, that she had hardly slept and had a sore back. Sharon Creasey then passed on a message received from Mr Singh in which he said that the claimant could sit on a chair and serve and, if she did not turn up to work, she would be classed as AWOL. The claimant replied to this saying that she was self-certifying and did not appreciate being threatened.[22]The claimant submitted a fit note covering a period of absence from 6 April to 19 April 2021 giving as the reason for absence stress-related illness and back pain.[23]On 9 April 2021, the claimant submitted a grievance after taking advice from her trade union. Her letter started that she wished to raise a formal grievance. Matters raised included lone working without a risk assessment having been done and lack of security measures, such as no CCTV and no landline. The claimant gave details of having been threatened by customers. She wrote that she was signed off work for two weeks as the concerns which she had outlined were causing her a lot of stress and anxiety. She did not say anything in this letter about an alleged failure to make reasonable adjustments – there was no mention of difficulty using a chair. There was no response to this grievance from the respondent. The claimant subsequently obtained another fit note for stress-related illness.[24]On 21 or 22 April 2021, the claimant received a letter in the post from the respondent which was incorrectly dated 20 April 2020. This informed the claimant that her employment was to be terminated with effect from 18 May 2021, thus giving her four weeks’ notice. Mr Singh wrote that it was not financially viable to run the office store based on its current staffing model. He wrote that, due to the claimant's non-availability in opening and closing, the business could not afford to have two staff when opening and closing. He classed the claimant as “non competent” in the current job role. Mr Singh did not say anything in this letter about matters subsequently raised about the claimant's alleged conduct or the claimant having said that she was not coming back or the claimant not having filled in the right forms. The claimant remained off sick until the effective date of termination.[25]The claimant wrote in reply to the respondent’s letter on 23 April 2021, again after taking advice from her union. The letter alleged she had been unfairly dismissed. The claimant referred to a meeting where Mr Singh had said that no-one would be left alone to lock up. She did not expressly say that she was appealing against the dismissal. There was nothing in the letter about an alleged failure to make reasonable adjustments. Mr Singh did not reply to the letter.[26]The claimant remained signed off work sick due to stress-related illness until her employment terminated on 18 May 2021. Case No. 2408510/2021 5[27]On 4 May 2021, there was a payment into the claimant's bank account of £903. She received no payslip so was not aware what this payment related to. The claimant had last been paid at the end of March for work done up to the middle of March. We consider it likely that the payment of £903 was in respect of pay for work done after the middle of March and for at least some of the statutory sick pay due to the claimant for her periods of sickness. We find that it did not cover holiday pay.[28]The claimant engaged in ACAS early conciliation between 8 and 9 June 2021 and presented her claim to the Tribunal on 20 July 2021.[29]The grounds of resistance of the respondent referred to the following matters: Mr Singh wrote that the claimant left on instructions from union members and told managers that she was not coming back and refused to open up and close with other staff members. Mr Singh alleged that the claimant had not filled in forms provided by the company and alleged that she was not happy due to not being paid redundancy money by the Co-op.[30]Different explanations for the termination of the claimant's employment have been provided in witness statements, and there are different versions of witness statements served on behalf of the respondent. There were some handwritten statements from Ms Creasey and Ms Hewson in the bundle of documents which addressed some matters relating to the disability discrimination complaints. We then had later typed witness statements said to be from Ms Creasey and Ms Hewson as well as from Mr Singh. The three typed statements made various allegations of misconduct and performance issues with the claimant. We find that these matters were not genuine concerns of the respondent – they were not mentioned in the dismissal letter or the grounds of resistance. We accept the evidence of the claimant and Ms Wilkins that there were no real performance or conduct concerns in relation to the claimant.[31]We have decided that we can put no weight on the typed statements of Ms Creasey and Ms Hewson. We cannot be sure that those are, in fact, statements of evidence that those named people would give. The similarity of style between the three typed statements suggests that they were written by the same author, so that those of Ms Creasey and Ms Hewson were written by the same author as that of Mr Singh.[32]On 5 June 2024 the respondent went into Creditor’s Voluntary Liquidation.[33]In relation to the disability issue, we accept the evidence of the claimant, supported by the evidence of her daughter, Mrs Booth, and that of Ms Wilkins about the impact on the claimant of her physical impairment following the accident in May 2020. By the time of her dismissal letter in April 2021, the claimant was still having difficulty cooking meals, cleaning and sometime getting dressed because of pain. She had difficulty shopping because she could not stand for long periods of time or carry heavy bags. Prolonged periods of sitting would also cause her pain to her back. She had disturbed sleep due to pain and discomfort in her back. The claimant could not help look after her grandchildren as she had before the accident. She could not lift the children or bend over to change nappies. She could not sit on the floor to play with the children as she had previously. The claimant took pain killers to help her manage the pain. Case No. 2408510/2021 6[34]In relation to injury to feelings, we accept the evidence of the claimant that having to stand up for lengthy periods contributed to her feeling completely drained at the end of the day.[35]Following the end of her employment with the respondent, the claimant obtained a job with Amplifon starting on 23 June 2021 but this was on lower pay than with the respondent. On 5 April 2022, she started work with another employer on higher pay than her pay with the respondent.[36]We take both the net and the gross weekly pay with the respondent to be £178 per week as in the Schedule of Loss. We have also accepted (in the absence of any other evidence) the figure of mitigation earnings given in the Schedule of Loss.[37]The claimant had completed eight years’ service as at the effective date of termination and was aged 54 at the effective date of termination. Submissions[38]Miss Boyle made oral submissions. She submitted that the claimant was unfairly dismissed in the automatic and “ordinary” senses. She argued that, but for the TUPE transfer, the claimant would not have been dismissed; the respondent did not want to keep her on in circumstances where she needed adjustments. There was no process followed before dismissal. The dismissal was grossly unfair.[39]In relation to disability discrimination, Miss Boyle referred to the evidence supporting the claimant being disabled. She submitted that the claimant was put at a substantial disadvantage by having to stand at the counter for long periods of time.[40]Miss Boyle submitted that the principle of payment of holiday pay was not in issue at the private preliminary hearing; it was just the amount. The claimant sought £106.92.[41]Miss Boyle submitted that the claim for notice pay followed from the complaint of unfair dismissal.[42]Miss Boyle argued for an uplift on compensation for failure to comply with the ACAS Code of Practice on Discipline and Grievance. She argued that the Code applied because the alleged reason of being “non-competent” went to conduct. The grievance the claimant raised was completely ignored.[43]Miss Boyle accepted that the injury to feelings amount sought in the schedule of loss should be discounted because it referred to dismissal but discriminatory dismissal was not a complaint brought by the claimant. Law TUPE unfair dismissal
Law
[44]Regulation 7(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) provides: “Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee is to be treated for the purposes of Case No. 2408510/2021 7 Part 10 of the 1996 Act (unfair dismissal) as unfairly dismissed if the sole or principal reason for the dismissal is the transfer.” “Ordinary” unfair dismissal[45]The law in relation to “ordinary” unfair dismissal is contained in the Employment Rights Act 1996. Section 94(1) of this Act provides that an employee has the right not to be unfairly dismissed by his employer. The fairness or unfairness of the dismissal is determined by application of Section 98 of the 1996 Act. Section 98(1) of this Act provides that, in determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason for dismissal and, if more than one, the principal one, and that it is a reason falling within Section 98(2) of the 1996 Act or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. Conduct is one of these potentially fair reasons for dismissal.[46]Section 98(4) provides that where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair, having regard to the reason shown by the employer, depends on whether, in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissal and this is to be determined in accordance with equity and the substantial merits of the case. In considering the reasonableness or unreasonableness of the dismissal the Tribunal must consider whether the procedure followed and the penalty of dismissal were within the band of reasonable responses. The burden of proof is neutral in deciding on reasonableness. Disability[47]Section 6 of the Equality Act 2010 (EqA) and Schedule 1 to that Act contain the relevant provisions relating to the determination of disability. Section 6(1) provides: “(1) A person (P) has a disability if –(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities.[48]Paragraph 1 of Schedule 1 provides that the effect of an impairment is long term if(a) it has lasted for at least 12 months,(b) it is likely to last at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. It also provides: “If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day to day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”[49]Paragraph 5 of Schedule 1 relates to the effect of medical treatment. It provides: “(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day to day activities if – Case No. 2408510/2021 8a. measures are being taken to treat or correct it, andb. but for that, it would be likely to have that effect. (2) “Measures” includes, in particular, medical treatment and the use of prosthesis or other aid.”[50]“Substantial” is defined in section 212(1) EqA as meaning “more than minor or trivial.” Failure to make reasonable adjustments[51]Section 20 of the Equality Act 2010 (EA) sets out the duty to make reasonable adjustments. The relevant parts of section 20 for this decision are as follows: “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. …… (8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section. …… (13) The applicable Schedule is, in relation to the Part of the Act specified in the first column of the Table, the Schedule specified in the second column.”[52]The Table which follows identifies Schedule 8 as the applicable schedule for Part 5 (work).[53]Section 21 EA entitled “Failure to comply with duty” provides: “(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. Case No. 2408510/2021 9 (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.”[54]Section 22 allows for the making of regulations. The Equality Act 2010 (Disability) Regulations 2010 are made under this power.[55]Paragraph 1 of Schedule 8 provides: “This Schedule applies where a duty to make reasonable adjustments is imposed on A by this Part of the Act.” Paragraph 2 provides: “(1) A must comply with the first, second and third requirements. (2) For the purposes of this paragraph – (a) the reference in section 20(3) to a provision, criterion or practice is a reference to a provision, criterion or practice applied by or on behalf of A; …. (c) the reference in section 20(3), (4) or (5) to a disabled person is to an interested disabled person. (3) In relation to the first and third requirements, a relevant matter is any matter specified in the first column of the applicable table in Part 2 of this Schedule.”[56]The relevant parts of Part 2 of Schedule 8 for the purposes of this decision defines an interested disabled person in relation to employment by A as being a disabled person who is an applicant for employment by A or an employee of A.[57]Paragraph 20 of Schedule 8 provides: “(1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know – ….. (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.”[58]Section 39(5) Equality Act provides: “A duty to make reasonable adjustments applies to an employer.” Case No. 2408510/2021 10 Conclusions The disability issue
Conclusions
[59]On the basis of the evidence (which we accepted) as to the impact of the physical impairment following the accident in May 2020, we find that the claimant had, at relevant times, a physical impairment being back, neck and shoulder pain. We conclude that this did have a substantial (in the sense of more than minor or trivial) impact on her ability to carry out normal day-to-day activities. Just a few examples of the impact included problems sleeping, difficulty in carrying things, not being able to play with and pick up her grandchildren as she had before, not being able to sit or stand comfortably for longer periods and difficulties doing shopping. She was suffering all these effects even with painkillers so, if we consider how the claimant would have been without the medication, we infer that the claimant would have had even more difficulty with carrying out normal day-to-day activities.[60]The physical impairment began in May 2020 with the accident and was still ongoing by the time the claimant received the letter of termination in April 2021. By then she had been suffering these effects for nearly 12 months and we conclude that it was likely, at that point, to continue for a total of more than 12 months. We know of course now (from the claimant’s evidence) that it did last much longer and she is still suffering those effects, but that is not relevant to our decision. We look at what was the situation at the time and we conclude, on the basis of the information available at the time, that it was likely to last at least 12 months.[61]We, therefore, conclude that the claimant was disabled by reason of the physical impairment of back, neck and shoulder pain at relevant times. Unfair dismissal – regulation 7 TUPE[62]The claimant seeks to rely on regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006. The effect of this regulation would be that the dismissal would be automatically unfair if the reason or principal reason for the dismissal was the transfer. There has been a change since 2014 and the provisions about being connected with the transfer no longer are contained in regulation 7. We can, however, albeit on the basis of very limited authority since the change in the regulations, take a fairly wide approach to reason or principal reason for dismissal being the transfer. Nevertheless, we are not satisfied on the evidence we have heard that the reason or principal reason for the dismissal was the transfer. The transfer is part of the context and, but for the transfer, the dismissal would not have happened, but that is not the test for deciding whether the reason or principal reason for the dismissal was the transfer.[63]We note that the claimant's dismissal occurred nearly two months after the transfer. Mr Singh’s motives for dismissing the claimant are unclear, and we have not had the benefit of hearing from Mr Singh. However, from a combination of the termination letter and the evidence we have heard from the claimant and Ms Wilkins, we infer that the claimant's unwillingness to work alone opening and closing the business was a factor in her dismissal. We also infer from Mr Singh’s conduct in terms of allocating the claimant to work at a till where it was most difficult for her to be able to sit down, that he was unsympathetic to an employee with a disability and this could have been a contributory factor in the decision to dismiss. We infer that these matters Case No. 2408510/2021 11 are likely to have been contributory factors in the dismissal. We do not consider that there is a sufficient connection between these factors and the transfer of the business for us to conclude that the transfer was the reason or principal reason for dismissal. We conclude, therefore, that the complaint under regulation 7 TUPE is not well-founded. “Ordinary” unfair dismissal[64]We consider whether the dismissal was unfair under the provisions contained in the Employment Rights Act 1996. According to this Act, the burden is on the respondent to prove that the dismissal was for one of the potentially fair reasons set out in that Act. We conclude that the respondent has failed to do that.[65]The grounds of resistance appear to put forward a capability argument, referring to the claimant not being competent to open up or close on her own, although at the case management hearing it appears that this was classified as possibly a conduct reason for the List of Issues.[66]The conduct issues which Mr Singh raised in his witness statement had not been raised previously and we have found those were not genuine concerns. The respondent has not shown that the dismissal was by reason of conduct or any of the other potentially fair reasons for dismissal. Since the respondent has not shown a potentially fair reason for dismissal, we conclude that the dismissal was unfair.[67]Although that is enough for the complaint of unfair dismissal to succeed, nevertheless we went on to consider what we would have decided had we decided there was a potentially fair reason for dismissal. We would still have found the dismissal unfair because of a complete lack of any fair procedure prior to the claimant being dismissed, and also a lack of any appeal process.[68]We conclude that the complaint of unfair dismissal, relying on the provisions in the Employment Rights Act 1996, is well-founded. Wrongful dismissal (breach of contract in relation to failure to give the required notice of termination)[69]The claimant (who had eight years completed service) was entitled to eight weeks statutory minimum notice. She was only given four weeks’ notice so the respondent was in breach of contract by not giving her the eight weeks to which she was entitled. We will compensate the claimant for the loss during the balance of 4 weeks as part of a compensatory award for unfair dismissal, so we make no separate award of damages. Unauthorised deduction from wages – pay in lieu of accrued but untaken holiday[70]We accept that the claimant was not paid in lieu of accrued but untaken holiday and accept the calculation that this was £106.92 due to the claimant. We did consider whether the payment of £903 made to the claimant without explanatory payslip on 4 May 2021 might have included holiday pay. However, we have concluded that it is likely to be a payment in respect of wages which were due from 16 March and then SSP from when the claimant started her sick leave. We think this payment was certainly no more than would have been due for those various types of payment. We Case No. 2408510/2021 12 conclude that the £903 did not include the holiday pay. We conclude that the complaint of failure to pay £106.92 in lieu of accrued but untaken holiday is well-founded. Disability discrimination – failure to make reasonable adjustments[71]We consider that the relevant part of the provision, criterion or practice relied on (which is a provision, criterion or practice that we conclude was applied) was that the claimant had to stand up for long periods of time. Although the claimant did sometimes have to deal with heavy boxes, that is not relevant to the adjustment that has been sought, so we do not feel the need to deal with that.[72]We conclude that the provision, criterion or practice of standing up for long periods of time did put the claimant at a substantial disadvantage compared to people without her disability because she suffered pain because of her impairments when she had to stand up for lengthy periods, in a way that people without such a disability would not have suffered.[73]In relation to the issue of knowledge, we conclude that the respondent did know (or at the very least, ought to have known) of the claimant's disability and the disadvantage. The respondent should have known this from the information provided by the Co-op on the transfer and also from information provided to Mr Singh by Ms Wilkins and by the claimant herself.[74]The duty to make reasonable adjustments arises and we have to consider whether the respondent failed in its duty to take such steps as it would be reasonable to have taken to avoid the disadvantage. We have found that the claimant was provided with a chair. However, for this to be a meaningful adjustment, she needed to be provided with a chair in a place where she could use it to sit down. Sometimes this was the case; when Ms Wilkins was working alongside the claimant she made sure the claimant was on a till where the claimant would be able to use the chair and sit down. However, when the claimant was working alongside Sharon Creasey, she was allocated to the till which was Mr Singh’s preference, the one with the door behind her where it was difficult to be able to sit down when she needed to. We have had no evidence as to the proportion of time worked when the claimant could sit if she needed to and the proportion of time when she could not, but, because the respondent did not make the adjustment consistently, we conclude that the complaint of failure to make reasonable adjustments is well-founded. Remedy Failure to make reasonable adjustments
Remedy
[75]Compensation for injury to feelings is sought. We do consider it appropriate (as is normally the case) to make an injury to feelings award. However, we have had little evidence about the injury suffered as a result of the failure which we have found. We consider that much of the claimant's upset relates to the dismissal and various other circumstances rather than specifically relating to the failure on an consistent basis to provide the chair in the place where she could sit down. This leads us to conclude that the injury to feelings should fall into the lower part of the lower Vento band for injury to feelings. In relation to claims presented at the time the claimant's claim was presented, the lower band was £900 to £9,100. We consider an appropriate Case No. 2408510/2021 13 award for injury to feelings, having regard to the evidence we heard, is £2,000. Interest is normally awarded and we consider it appropriate to award interest on that amount.[76]Interest is normally awarded from the date of discrimination for injury to feelings awards until the date of calculation. The discrimination occurred over a period starting no earlier than the date of transfer and ending no later than the claimant’s last day of work, which must have been by 4 April 2021 (the claimant having been on sick leave after that period). Given that, we have considered it appropriate to take a date some time roughly in the middle of that period and have taken the date of 18 March 2021 as an appropriate starting point, which means that there are three years’ worth of interest to be awarded. The calculation of interest for three years at 8% is 3 x 8/100 x £2,000 = £480. Unauthorised deduction from wages – holiday pay[77]For the holiday pay, the award is £106.92 as sought. Compensation for unfair dismissal[78]We agree with the calculation of the basic award in the Schedule of Loss, which comes to £2,136. The claimant had eight years’ service. Because of the claimant’s age, each year has a weighting of 1.5 and we have taken the pay at £178 per week, so the basic award is £2,136.[79]In relation to the compensatory award, we do consider it appropriate to compensate the claimant for loss of earnings in the period after the effective date of termination up to when the claimant began to work at a higher rate of pay than she had received with the respondent, so that is for the period 19 May 2021 to 4 April 2022. We have rounded this up slightly to 46 weeks. We have used £178 as the net weekly pay, so therefore 46 x £178 = £8,188. We have deducted from that her mitigation earnings when with Amplifon which we have accepted from the Schedule of Loss to be £5,761 which gives a figure of loss of earnings of £2,427.[80]We add to that compensation for employer’s pension contributions. We did not agree with the calculation in the Schedule of Loss which awarded that for the whole period up to April 2022 because, looking at the payslips for Amplifon, the claimant was in a pension scheme with Amplifon by October 2021. We have, therefore, awarded compensation for loss of employer’s pension contributions for the period May to September 2021, a period of five months. We have accepted the figure of £30 a month, so that is £150.[81]We have decided for loss of statutory rights, having regard to the claimant's earnings, that an appropriate award would be £350 rather than the £500 sought.[82]Adding the £2,427, the £150 and the £350 together gives a total compensatory award of £2,927.[83]We have decided that it would not be appropriate to make any adjustment for failure to comply with the ACAS Code. We have concluded that the ACAS Code did not apply to the dismissal. We have concluded that conduct was not a reason for the claimant’s dismissal and the discipline provisions of the Code apply where it is a conduct unfair dismissal, so the Code does not apply to that. Case No. 2408510/2021 14[84]We have also concluded that the unfair dismissal complaint does not concern a matter to which the grievance parts of the Code apply. This is not a constructive unfair dismissal complaint where failure to address a grievance is relevant to whether the claimant was constructively dismissed.[85]We have, therefore, come to the conclusion that section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 does not apply, so there is no ACAS uplift.[86]That means that the grand total for unfair dismissal is the basic award of £2,136 plus the compensatory award of £2,927 giving a grand total of £5,063. Since the claimant made no claim for state benefits, the recoupment regulations do not apply to that.