Employment Judge Miller-VareyMr B Williams (instructed by Counsel) for claimantDate 8 July 2025
JUDGMENT
[1]The complaint of unfair dismissal under Part X Employment Rights Act 1996 is well-founded. The claimant was unfairly dismissed.[2]The compensatory award to be assessed in due course shall include an uplift of 25% pursuant to section 207A Trade Union & Labour Relations (Consolidation) Act 1992 because the respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015.[3]The complaint of breach of contract in relation to notice pay is well-founded and accordingly succeeds.[4]The complaint of unauthorised deductions from pay contrary to Part II Employment Rights Act 1996 is well-founded. The respondent made an unauthorised deduction from the claimant's pay. The respondent is ordered to pay to the claimant the net sum of £1072.12 deducted from pay (noting that there are expressly reserved to a further hearing the question of a separate alleged deduction of 230.5 hours and payment in lieu for untaken leave on termination). Case No. 2413027/2023 2
REASONS
[1]These reasons make reference to page numbers. Unless otherwise stated, these relate to the correspondingly numbered pages of the hearing bundle. Restricted Reporting, Privacy and Anonymisation[2]At the outset of the hearing the Tribunal made the following orders: a) a restricted reporting order pursuant to s.11 of the Employment Tribunals Act 1996 and rule 49(3)(d); b) an order that the hearing should be held in private under r.49(3)(a); and c) an order for anonymisation under r.49(3)(b).[3]Those orders are set out in a separate document; the reasons for making them are contained in Annex A.[4]In accordance with the order under r.49(3)(b), I use the initials X, Y and Z and A, B, C and D in place of relevant individuals’ names. Two key venues (which I am confident the parties will recognise) are referred to as “the Place” and “Ascot Range Community Centre”.
Background
[5]By a claim issued on 13 December 2023 X brings complaints against Y of unfair dismissal, wrongful dismissal, and unlawful deductions in respect of wages and holiday pay.[6]X’s employment with Y began on 15 March 2018 and ended when he was summarily dismissed on the 1 September 2023. His role was that of personal assistant and carer to the adult child of Y, Z.[7]Z is a young adult male with the disability of autism. All parties agree Z is a vulnerable person. Y is married to A. A is Z’s father.[8]Y resists the claim on the basis that X was fairly dismissed on grounds of gross misconduct or some other substantial reason, namely a breakdown in trust and confidence. There are alternative defences that X would have been dismissed in any event regardless of procedure (the Polkey defence), and that compensation should be extinguished because X contributed to his dismissal.[9]On the question of arrears of wages and unpaid holiday pay at termination, the pleaded response runs an essentially factual defence that X has been paid, save for one week (in October 2023) to which there is no entitlement.
THE ISSUES
[10]The issues to be determined were identified by EJ Batten at paragraph 48 of the record of preliminary hearing of 1 October 2024. The List of Issues is attached in full at Annex B. I shall return to these in the Discussions and Conclusions section below. Case No. 2413027/2023 3
THE HEARING
[11]I indicated to the parties that we would deal with liability first to include Polkey, ACAS code adjustment and contributory fault. Procedure, documents and evidence heard[12]The hearing bundle comprised 193 pages of documents.[13]I decided that Y should lead evidence first. Y gave evidence followed by A.[14]I then heard evidence from X. X had also exchanged a witness statement from Ms Victoria Mitchell, solicitor. Her evidence was not challenged and with the agreement of the parties, I received her statement into evidence without requirement of Ms Mitchell being sworn.[15]Y, A and X gave their evidence by way of witness statement which I had read in full before they gave their oral evidence. They were all cross examined.[16]The evidence and respective submissions concluded at 3.35pm and owing to the limited time available I indicated I would give a reserved judgment with reasons.
FINDINGS OF FACT
[17]I make the following findings of fact together with those additional findings noted in the Discussion and Conclusions section below.[18]X was employed under a written contract of employment dated 15 March 2018.[19]X’s chief responsibilities included supporting Z one-to-one with day-to-day activities at Y’s home, accompanying him within the community, taking him on days out and on short break holidays. As part of X’s role, Z also spent time at X’s home including overnight stays. X had previously worked for Y undertaking the same activities but alongside another PA/ carer between 2003 and 2013. Provisions of employment contract relevant to this claim[20]Annex A of X’s employment contract sets out a disciplinary process [p.69]. It provides that minor problems will be dealt with informally and “in cases of more serious problems, the Employer will conduct an investigation of the facts”. Provision is made for the employer to suspend the employee on full pay during the course of an investigation.[21]There is a three stage process if it is decided that formal action is required: a) Stage 1 is the setting out in writing the alleged conduct which has led the employer to contemplate dismissal or taking action. Case No. 2413027/2023 4 b) Stage 2 is a meeting followed by the employee being informed of the decision about disciplinary action. That meeting should take place before action is taken, except in the case of a suspension. c) Stage 3 is an appeal stage. The employee must apply in writing within 10 days of notification of the decision.[22]There is further provision that in the case of gross misconduct, the employee will be told about the complaints against them [pp.70-71]. Examples of gross misconduct include assault on another person [p.71].[23]X was entitled to contractual notice pay in accordance with clause 21.2 of the contract as follows: “(a) one week’s notice if you have continuously been employed for up to two years and then (b) one week’s notice for each completed year of employment up to a maximum of twelve weeks notice ...”[24]Therefore at the time of his termination, X had the benefit of a 5 week notice period.[25]The employment contract provided holiday pay entitlement [p.63] as follows: 7.1You are entitled to 5.6 weeks annual leave... 7.2The holiday year runs from 1st April to 31st March. You will not be permitted to carry over any unused holiday entitlement and there will be no payment in lieu of any unused holiday entitlement... 7.5 On termination of employment holiday entitlement will be calculated to the nearest full month worked. If you have outstanding holiday entitlement the employer may request that you take the leave during notice period or will make payment in your final salary in respect of any outstanding holiday entitlement... Matters up to 16 June 2023[26]There are matters of disputed fact about whether Y had concerns for Z’s welfare whilst in X’s care which she raised with X prior to 16 June 2023. Y alleges she had two distinct areas of concern and both were raised.[27]The first is about bruising observed on Z’s face on three different occasions when Y says Z was in X’s care. Y says in her witness statement that she questioned X three times and, received explanations from X that Z had hit Case No. 2413027/2023 5 himself and that a third party had struck Z. On the third occasion she says no satisfactory explanation was forthcoming from X. Y referred in her witness statement to three photographs which show Z with significant bruising to his right under-eye area. These photographs [p.77] are all taken on the same day (20 March 2023) at 8.51am (x 2) and 5.43pm (x 1).[28]Y also claimed in her witness statement and to the Tribunal that her concerns about bruising were part of her motivation in reducing X’s hours on 29 March 2023 from 32 to 24 per week.[29]The second aspect of X’s conduct relates to a concern arising from a report allegedly made to Y by telephone on 5 November 2022. Y said in her witness statement that the day care centre called her on that day to say that one of their staff, B, had seen X “kissing and hugging Z” around a shop. Y says that she queried this at the time with X who denied it.[30]Y referred in her witness statement to what is described as an Interaction Record [p.76]. This is a pro forma document from The Place and takes the form of typed account from a staff member in relation to Z as a service user. It is clear that it relates to events on 5 November 2022 but it is unclear when it was prepared. Inferentially, it could have been prepared on or after 7 November. It says this: “I was driving through Accrington with my partner on Saturday afternoon. At the traffic lights where the new home and bargains store is in Accrington I saw Z with his PA. Z kissed him on the lips and cheek was and was hugging him, the PA did not seem to show any resistance or discourage Z from this behaviour. I attended work at 12pm on 7 November 2022 and advised my team leader/manager and Z’s support staff of what I had witnessed.”[31]The document is then signed by the manager and the staff member. It is not dated.[32]As to when Y got the copy of the “Interaction Record” from the Place, Y accepted in oral evidence that she only got it a couple of months ago when her solicitors had asked for it.[33]X’s position is that none of these matters were put to him. He said he had seen the Interaction Record for the first time when mutual disclosure took place and the contents had never been mentioned to him by anyone.[34]I prefer X’s account because I found his evidence to be more reliable and consistent than Y's. I found Y’s evidence to be inconsistent, unreliable and implausible both in reference to these particular matters and generally. I will explain why in the paragraphs immediately below. I also find that when cross-examined Y knowingly obfuscated about which parts of the bundle where available to her. She did not have any clear regard for the importance of the proceedings or answering questions directly and truthfully. Case No. 2413027/2023 6[35]Y has given three conflicting explanations of why she reduced X’s hours. In the text message from March 2023 by which she notified X of the reduction, Y said “am giving C 2 days wedes and Saturday and you can do Monday, Tuesday and Friday and he goes to the Place on Thursday you have 21 hours a week that’s 8 hours a day trying to be fair with everyone C needs a job and he is taking Z he has insurance on his car as well so he can take him out for a drive as well?”[36]In Y’s Grounds of resistance filed on 8 February 2024 Y says that the reason X’s hours were reduced was because “on this occasion there was not enough money in Y’s account [p.41, paragraph 3].[37]The third explanation, set out in for the first time in her witness statement of 12 February 2025, is that it was influenced by concerns about bruising (paragraph 8 refers).[38]Y gave the date of the bruising in her statement as 23 March 2023 when the photographs were both dated 20 March. In her evidence to the Tribunal Y maintained that the bruising reflected in the photograph timed at 5.40pm represented Z’s condition when he returned home from a day out to Blackpool on 20 March in X’s care. She said that she observed this when Z came back and she went to shave him. However, that same bruising appeared in the photograph taken earlier that morning (timed at 8.51am). When challenged about how therefore this could possibly connect to X, she then said the photograph was from a different day when Z had stayed over at X’s. I could find no adequate explanation about why Y should be so confused when preparing her statement over these important dates and times.[39]Y’s pleaded case does not refer in any way to concerns about bruising or the report she says in her witness statement that she received by telephone on 5 November 2022. This is so, despite describing that she was “horrified” by the by the report to which I will come, because it was a “second report”. In cross-examination she accepted that she had not told her lawyers about the November 2022 telephone report when she instructed them to file the ET3. She accepted that she only mentioned the previous bruising concerns to them a couple of weeks prior to the hearing. Given the obvious, overriding focus of the proceedings is the reason for and fairness of X’s dismissal, this serves both to undermine any suggestion of the concerns having been ever previously mentioned to X, as well as whether the concerns were ever genuinely and honesty held.[40]Y’s pleaded case included a positive assertion that she did not get X’s letter of 6 September 2023 in which she challenged his dismissal [paragraph 7 of the ET3, p.42]. Although she then tried to back track, in her oral evidence she acknowledged that she had read the letter in September when she got it. Her ET3 is therefore actively misleading.[41]Putting this together, I find the first, contemporaneous explanation is the single honest reason for Y reducing X’s hours. Relevant here too is that following on from the notification of X’s hours changing, an exchange of messages followed in which X was strongly critical of Y’s action in unilaterally Case No. 2413027/2023 7 reducing his hours by text. Y told him that he could do what he wanted but that she could come and talk to him. If the real reason was a feeling that X had failed in the key duty of protecting Z from physical injury its perverse that Y would not have articulated it and withstood X’s criticism of her. It is also unexplained how a one-third reduction in hours alone would adequately deal with the concern when Z would still be spending 24 hours a week in X’s care.[42]I also find, with some conviction, that Y did not raise any concerns with X of any sort prior to 16 June 2023. I should also add that A’s evidence (which was that when X was questioned about the 5 November 2022 he denied it and was given the benefit of the doubt) did not take matters any further. A accepted in cross-examination that he only knew of this because Y had told him; he had not been present.[43]I deal in the discussions and conclusions section below with what part the underlying allegations (bruising and 5 November 2022 telephone report) had in respect of the reason for the dismissal. What happened on 16 June 2023[44]There is a further conflict of evidence about the communication that arose between X and Y in relation to an allegation reported to Y on 16 June 2023.[45]Y says that on 16 June, she responded to a missed call from the safeguarding team. When she returned their call, the team informed her that one of the managers at Ascot Range Community Centre, D, had witnessed X kissing Z.[46]Y says she spoke directly to D. In her statement Y did not say when. Her evidence to the Tribunal was that this was after she spoke to X on 16 June. I will return to this below.[47]Y said that when X returned to her home with her son on 16 June she then informed him that safeguarding had telephoned her. She says that without more, X immediately replied “she’s lying” and kept repeating that phrase. She says she asked X how he knew what she was talking about. She says she asked X to leave and confirmed he was suspended until safeguarding had completed their enquiry.[48]X’s evidence was that during the morning of 16 June 2023, and quite out of the blue, he received a telephone call from Blackburn and Darren Borough Council Social Services who informed him that an allegation had been made against him by a complainant. The allegation was that he had kissed Z in the Community Centre and he was told there were witnesses (paragraph 18 of his witness statement refers).[49]No other information was provided to X. He denied it to the caller. The call was short lasting around 3 minutes.[50]In his oral evidence, X said that when he returned to Y’s house he informed Y of the telephone call that he had received. Y indicated that she had received such a call too. When X commented “she’s lying”, he did so in reference to the person who had reported the allegation to social services. He says he was Case No. 2413027/2023 8 asked “how did you know?” by Y. He replied it was obvious; he had received a phone call from Social Services, that’s how he knew. Thereafter he says there was a bit of a disagreement around what had been said in the phone calls. X indicated that he was going home and left. His next communication was from Y in the form of a text message on 17 June 2023 stating: “Hi X safeguarding are investigating about what’s happened so you won’t be working with Z till its all sorted its happened on a few occasion just hope its nothing like you say”[51]I prefer X’s account of the interaction between the two on 16 June in all respects. I have already identified how unsatisfactory I have found Y’s evidence in relation to the raising of earlier conduct concerns. I also note that X has always maintained since the presentation of the claim that he was told independently of the allegation [p.21, paragraph 15]. Materially, my finding here means:(a) X did not offer the words “she lying” to Y without there being context to his response i.e. he had volunteered to Y that he had independent knowledge of the allegation. Accordingly, the comment was not a marker that he was aware – because it had happened - of some wrongdoing that connected to him; and(b) he was not informed that he was suspended by Y on 16 June. The decision to dismiss[52]I find the as matter of timing Y and her husband had made the decision to dismiss X before Y reported the matter to the police which she did on Monday 19 June 2024. This was Y’s husband’s evidence.[53]X did not then receive any further communication from Y until on the 1 September 2023 he received a letter posted by hand through the door from Y [p.104]. The letter was dated 23 August 2023 and informed X that he had been dismissed with immediate effect. The letter also states: a) that it is further to a disciplinary notice “held” on Friday 9 June 2023; b) that the matters of concern are “inappropriate behaviour” towards Z; c) that the explanation given by X at “the hearing” was that “this is all untrue”; d) that the explanation is confirmed to be unsatisfactory because there are two witnesses; e) that the writer has carefully reviewed and considered X’s responses and has decided that his conduct has resulted in a fundamental breach of his contractual terms, the effect of which was to irrevocably destroy the trust and confidence necessary to continue their relationship, to which summary dismissal is the appropriate sanction; and f) that X was dismissed with immediate effect and was not entitled to notice or pay in lieu thought that he had the right to appeal the decision within 14 days Case No. 2413027/2023 9 of receiving the letter subject to giving full reasons why he believed the disciplinary action taken against him was inappropriate or too severe.[54]Y’s evidence was that the reference to the notice being on 9 June was in error; she had intended to refer to 16 June 2023.[55]X wrote to Y on the 6 September 2023, delivering his letter by hand to Y’s address [pp.106-115]. The long, handwritten letter set out a that his dismissal was null, there had been numerous breaches of employment law, that Y was obliged still to pay him whilst the matter was sorted out and that he was greatly upset. He also indicated that his information was that social services had closed down the investigation of the concerns on 19 June 2023 [p.113].[56]It also mentioned a number of important matters relevant to the disclosure made to X and Y on 16 June 2023: a) X acknowledged some people who he referred to as “these people”, were making false allegations which it was good that the police would be investigating. b) These people know he works with Z and have an intention to “get him” and stop and bar him from working in the care sector. c) That there was an incident at the community centre on Friday which did not involve X but involved Z trying and asking to kiss other people. X said he had spoken to Z about not doing it but Z thought it was funny. d) It acknowledges that Z tries to kiss other people and that Y’s cousin hugs and kisses Z which tends to reinforce it was alright to do it to other people, and it has now unfortunately become part of Z’s behaviour. e) It expresses that in time Z will stop doing this but it will require everyone working together.[57]I also find X sent a text message to Y on the 7 September referring to that letter. There was no response to either the letter or the text message. I am satisfied they were received by Y.[58]On the 19 September 2023 solicitors acting for X, Farleys, wrote to Y intimating the claim [p.119]. Among other things they noted that there was no witness evidence pertaining to the allegation against X. They made the point that the dismissal was considered to be pre-determined as well as unfair. So far as the appeal rights referenced in the letter dated 23 August were concerned, it was stated that X considered it futile to progress the appeal given the lack of any fair process. This had caused him to consider an appeal would be nothing more than a sham and unrealistic for both parties.[59]I find Y received the letter and telephoned Ms Mitchell of Farleys confirming safe receipt of the letter. She said to Ms Mitchell that she would respond to it. Y did not do so. Case No. 2413027/2023 10[60]These proceedings were issued on 13 December 2023 following a period of early conciliation which began on 24 October 2023.[61]I am satisfied Lancashire Constabulary have been conducting an investigation into the allegation reported to X and Y on 16 June 2023. The investigation commenced in July 2023. X attended the police station once in August and once in September 2023 [p.146]. To date X has not been charged and no witness statements have been served on his legal team. The most recent piece of evidence before the Tribunal relating to the police involvement was a letter of 13 June 2024 confirming the investigation was ongoing and arrangements would be made for X to attend the police station for “further questioning” in due course [p. 48].[62]Y said in her evidence that she had received an email from the police a few weeks prior to the hearing which indicated they were still looking into the matter. She did not seek to place this before the Tribunal.[63]I am satisfied in October 2023 [p.127] Y was seeking statements from the police and did not then have in her possession the Interaction Record of B relating to the events on 5 November 2022. The “investigation” as alleged by Y[64]This detail was not set out in her witness statement but, in her oral evidence Y said that she wanted to speak to the witness of the incident reported to her on 16 June 2023 before she reported the matter to the police. She therefore rang the Community Centre who said Y could attend on the following Monday and D would speak to her. She says she did this on Monday before calling the police.[65]In her witness statement Y indicates the explanation given to her by D was that D had “walked in on Z and X kissing in a corner in the hallway which was a camera blind spot”.
THE LAW
[66]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996. Under section 98(1), it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), e.g. conduct, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.[67]Under s98(4) ‘… 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 dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.’ Case No. 2413027/2023 11[68]Tribunals must consider the reasonableness of the dismissal in accordance with s98(4). However, tribunals have been given guidance by the EAT in British Home Stores v Burchell [1978] IRLR 379; [1980] ICR 303, EAT. There are three stages: a) did the Respondent genuinely believe the Claimant was guilty of the alleged misconduct? b) did it hold that belief on reasonable grounds? c) did it carry out a proper and adequate investigation?[69]Tribunals must bear in mind that whereas the burden of proving the reason for dismissal lies on the respondent, the second and third stages of Burchell are neutral as to burden of proof and the onus is not on the respondent (Boys and Girls Welfare Society v McDonald [1996] IRLR 129, [1997] ICR 693).[70]Tribunals must decide whether it was reasonable for the respondents to dismiss the claimant for that reason in all the circumstances of the case.[71]I remind myself that my proper focus should be on the claimant’s conduct in totality and its impact on the sustainability of the employment relationship, rather than an examination of the different individual allegations of misconduct involved (Ham v the Governing Body of Bearwood Humanities College UKEAT/0397/13/MC).[72]I have also reminded myself that the central question is whether dismissal was within the band of reasonable responses open to a reasonable employer. It is not for me to substitute my own decision of what I might have done in the Respondent’s position.[73]The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. The objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, CA).[74]I also accept that when considering the question of the employer’s reasonableness, I must take into account the disciplinary process as a whole, including the appeal stage. (Taylor v OCS Group Limited [2006] EWCA Civ 702).[75]Ultimately the question is whether the employer had a reasonable belief that the employee committed such serious misconduct that instant dismissal was justified. Just because the claimant has committed gross misconduct, does not mean the dismissal was fair. I accept that the usual approach under Case No. 2413027/2023 12 s98(4) must be followed and the use of the label gross misconduct and the fact of summary dismissal is a factor to be considered along with all the other circumstances.[76]In this case, I asked either side if they wished to refer me to any specific authorities which deal with the situation in which there is an allegation of this kind or a criminal investigation. They did not refer me to any caselaw.[77]I myself noted the decision in Scottish Special Housing Association v Cooke and ors 1979 IRLR 264, EAT. In that case the EAT rejected what it considered to be a ‘very dangerous doctrine’ that the charging of the employee with a criminal offence of itself was sufficient grounds for the employer to conclude that the employee had committed the offence and therefore to dismiss him.[78]I have also had regard to Leach v OFCOM [2012] IRLR 839, CA . That was a case in which the Metropolitan Police Child Abuse Investigation Command (CAIC) had told the employer that the employee was a continuing potential threat or risk to children and that there was a risk of media exposure. It is clearly different from this case in a number of respects: with respect to the origin and nature of the information received, because the employee in Leach did not work directly with children, still less with the vulnerable person at the heart of the allegation and (related to that) the principal reason for dismissal was the risk of reputational damage leading to a breakdown in trust and confidence.[79]However, the Court of Appeal in Leach endorsed the EAT’s decision (upholding the ET) in a number of respects that I consider to be of potential relevance to the question of necessary investigation where the employer relies upon misconduct or a upon loss of trust and confidence, as a result of a safeguarding disclosure which comes from a third party. The EAT ([2010] IRLR 844, [2010] ICR 849) noted that: a) an employer who receives information from CAIC or a similar body, under an official disclosure regime, that an employee poses a risk to children must, in principle and subject to certain safeguards, be entitled to treat that information as reliable and cannot, in such a case, be expected to carry out his own independent investigation in order to test the reliability of the information provided by a responsible public authority (paragraph 27) b) an employer would not be acting reasonably however if he took an uncritical view of the information disclosed (paragraph 29).[80]In respect of the latter point, the EAT said this: Mistakes do sometimes happen; and the consequences when they do are devastating for the employee. The employer ought therefore always to insist on a sufficient degree of formality and specificity about the disclosure before contemplating taking any action against the employee on the basis of it. He will sometimes be in a position, either from his own knowledge or from information obtained Case No. 2413027/2023 13 from the employee, to raise questions about the reliability of the disclosed information: in such a case he ought, in the interest of fairness, to put those questions to the authority providing the information and to seek credible reassurance that all relevant information has indeed been taken into account. Some Other Substantial Reason (SOSR) - A loss or breakdown in trust and confidence[81]Generally speaking, in order to rely upon a breakdown in trust and confidence as a substantial reason justifying a dismissal, it must be the act of the employee that brings about the breakdown. It may be possible to rely on the “fact of” rather than “the cause of” the breakdown.[82]In L v K [2021] CSIH 35, [2021] IRLR 790 the Court of Session upheld a dismissal on grounds of SOSR where the conduct - possession of indecent images of children - was denied by the teacher but the right to prosecute had been reserved. It was also not disputed that the indecent images were on the teacher's computer. Thus the school said the employee was deemed to present an unacceptable risk to children, with the potential for reputational risk such that there was a breakdown in the trust and confidence which the employer required to have in the teacher. Whilst endorsing the concerns expressed by Mummery LJ in Leach that a breakdown in trust is not a mantra to be mouthed if there are difficulties in establishing a more conventional reason, the Court of Session said this: An employment contract is a bilateral relationship. Cases such as the present throw the parties' respective interests into acute and direct conflict. Nonetheless, however the case may seem from the perspective of the employee, particularly if in fact he is blameless, once a substantial and genuine reason in terms of s 98(1)(b) is established, the statutory test in sub-s 4 must be applied.[83]In those circumstances the Tribunal must then determine as the only remaining question whether 'the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee', a matter to be determined in accordance with the substantial merits of the case.[84]As to what amounts to gross misconduct, following Sandwell & West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09 it involves either deliberate wrongdoing or gross negligence. The questions for the Tribunal are to consider both the character of the conduct and whether it was reasonable for the employer to characterise the conduct as “gross misconduct” (as per HHJ Hand at paragraph 113).[85]Any compensatory award I make must be what is just and equitable in all the circumstances “having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer” (s.123(1)) The principles established in Polkey v AE Dayton Services Limited [1987] UKHL 8 and developed further in Software 2000 Limited v Andrews [2007] ICR 825; W Devis & Sons Limited v Case No. 2413027/2023 14 Atkins [1977] 3 All ER 40 ; and Credit Agricole Corporate and Investment Bank v Wardle [2011] IRLR 604 provide that if the dismissal is procedurally unfair or the Claimant could otherwise have been fairly dismissed for another reason, an adjustment should be made to any compensatory award to reflect the possibility that a claimant would have been dismissed in any event.[86]There are further reductions that may be made under s.122(2) and s.123(6) ERA.[87]Section 122(2) of the ERA provides out that: “Where the Tribunal considers that any conduct of the complainant 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”.[88]Section 123(6) of the ERA provides that: “Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding”.[89]The decision in Nelson v BBC (No.2) [1980] ICR 110 relates to a substantially similar predecessor legislative provision and remains the lead authority on what action of a Claimant may warrant a reduction under this provision. Brandon LJ said this: “It is necessary, however, to consider what is included in the concept of culpability or blameworthiness in this connection. The concept does not, in my view, necessarily involve any conduct of the complainant amounting to a breach of contract or tort. It includes, no doubt, conduct of that kind. But it also includes conduct which, while not amounting to a breach of contract or tort, is nevertheless perverse or foolish, or, if I may use the colloquialism, bloody-minded. It may also include action which, though not meriting any of those more pejorative ……, is nevertheless unreasonable in all the circumstances. I should not, however, go as far as to say that all unreasonable conduct is necessary, culpable or blameworthy; it must depend on the degree of unreasonableness involved.”[90]In reaching my decision, I must also take into account the ACAS Code on Disciplinary and Grievance Procedures. By virtue of section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Code is admissible in evidence and if any provision of the Code appears to the tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question. A failure by any person to follow a provision of the Code does not however in itself render her liable to any proceedings. Unlawful deductions from earnings Case No. 2413027/2023 15[91]Section 13 enshrines the right not to suffer an unauthorised deduction from wages other than in prescribed circumstances. So far as relevant to the issues in this case, it provides as follows: 13.— Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. ..... (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.[92]As to wages: 27.— Meaning of “wages” etc. (1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including— (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, DISUSSION AND CONCLUSIONS The reason or principal reason for the dismissal[93]I find the reason for dismissal was that Y believed X had committed misconduct in reference to the single allegation shared with her by Safeguarding of 16 June 2024.[94]I am not satisfied that at the time of dismissal Y had any genuine belief that X had committed any wider or other misconduct. I have in mind here the concerns which I find she did not ever raise with X about bruising, and the allegation she claims was reported to her on or around 5 November 2022. Over and above the fact of not raising or investigating such profound concerns contemporaneously, I am highly circumspect about their complete exclusion from mention in these proceedings until disclosure and exchange of witness statements. This is not allayed by the fact Y has produced some ostensibly supportive evidence in the form of the photographs and the Interaction Record.[95]The photographs did not advance Y’s case because no connection was made, even circumstantially, with X’s care of Z. Despite Y choosing which photographs to exhibit to her statement she could not credibly articulate how these connected to X’s care. Both X and Y agree that as a result of his condition and symptoms Z, sadly, does hit himself. There is also the fact that the letter of 23 August does not refer to bruises or a failure to adequately protect but to “inappropriate behavior” which is quite different. I also note that Case No. 2413027/2023 16 part of the basis on which Y infers bruising of Z related to C’s care is that in the time since X’s employment ended Z has apparently not had any such bruises. Necessarily, that is very much after the fact and could not have been a factor in her mind at the time.[96]As a piece of documentary evidence, the Interaction Record more convincingly bolsters the idea that there was a concerning interaction in November 2022 witnessed by B. It thus lends apparent credence to Y’s account that a verbal report was made to Y at the time and hence on 16 June this represented a second report. However, I have already found that it was not raised with X. Of itself, that is a powerful indicator that Y did not have concerns in November 2022. It is also somewhat difficult to understand how the Place, whose strapline indicated that it supports adults with learning disabilities would consider this was a serious enough interaction to document but that it was resolved by a phone call to Z’s mother only. That sits uneasily with the formality of the record and my expectations of safeguarding practices. It is also right to mention the unchallenged evidence of X, which I accept, is that the writer of the statement is a long-standing friend of Y. She was not called by Y as a witness in these proceedings. I also return to the point that there remains no satisfactory explanation of why if this was genuinely a factor in the decision to dismiss X it was not raised in the ET3. I cannot accept its omission is simply oversight given the similarity in the alleged misconduct. .[97]Ultimately, in relation to the unfair dismissal claim, I do not need to reach a conclusion on the veracity of the November 2022 Interaction Record. What I am concerned with is Y’s reason for dismissal in which she bears the burden of proof. In all, I find that if (and I do stress if) what is alleged in the Interaction Record was reported to Y during X’s employment, it was not the operative reason for the dismissal in the mind of Y. It is not coincidence but perfectly telling in my view that this conforms entirely to the primary pleaded case put forward in the ET3.[98]The allegation of 16 June 2024 is different. Both parties agree that the Safeguarding department of the council had received an allegation in reference to X; that was how it was X and Y each came to be independently contacted on 16 June 2023. This was expressly raised by both parties in their discussion of that day. Despite the grave concerns I have about the reliability of Y, on the balance of probabilities I am prepared to accept that Y believed this reported allegation was soundly made and therefore that X had committed misconduct. On that point, it is right to acknowledge Mr Williams, quite properly, did not make submissions mirroring his client’s stated suspicion that the allegation made to safeguarding in June 2023 originated with Y. Rather he put the case on the footing that the best that could be said for Y and A was that they felt so compelled by parental need to protect their child, they forget themselves and decided to dispense with process. I agree with that submission.[99]I can certainly accept the contact from safeguarding would have been a source of real concern for Y as Z’s mother. However, I reject that as a result of the allegation reported on 16 June 2023 her trust and confidence in X as personal assistant was so damaged as to constitute “some other substantial Case No. 2413027/2023 17 reason of a kind such as to justify the dismissal of an employee holding the position which the employee held” for the purpose of s.98(1)(b). The information she had was simply not at that threshold. It was the report of an allegation, the detail of which she did not fully then know and which had been denied by X. It is quite distinct from a case in which an employer responsible for a vulnerable person(s) receives formal disclosure from CIAC or other authoritative source under an official disclosure regime confirming an actual risk of harm. Even then, following Leach, disclosure of that quality and status would require some critical examination by the employer before proceeding to dismiss. Were there reasonable grounds for the belief?[100]There were no reasonable grounds for the belief. The telephone call from Safeguarding was some basis for that belief but it was a hearsay report. The only other information Y had was received directly by her from X and constituted a denial. Consistent with my findings, it was no sense a suspicious, revealing or unprompted denial.[101]X was someone who had worked with Y’s son over two lengthy periods spanning his childhood into early adulthood. He had a clean disciplinary record. Y had no reasonable basis to form a belief that whomever had complained to Safeguarding was correct and X was being dishonest to her. At the time the belief was formed had the respondent had carried out a reasonable investigation[102]At the time the belief was formed (before contact with the police on 19 June) and right up the dismissal itself, I am not satisfied Y received any other information from that which I have described above. She had no written information at all from Safeguarding or any other source.[103]On the balance of probabilities I am not satisfied Y did go to see the maker of the allegation, D, at the Community Centre on 19 June 2023. There is no evidence that she did, other than Y’s oral evidence which I did not find convincing. Y did not seek to call D to confirm that they had met on 19 June. I can identify no barrier to that. Her text message to X of 17 June 2023 was clear that Safeguarding were investigating. She mentioned nothing at all about her own inquiries.[104]Even allowing, as I must, for the fact that Y was not acting in the course of business and seems, at most, to employ only two staff, this was not within the range of reasonable responses. I find Y never wanted to or saw any reason why she should investigate at all. Y’s unrepentant position in cross-examination was with the exception of the safeguarding, the police will do the investigation for her. Did Y otherwise act in a procedurally fair manner? Case No. 2413027/2023 18[105]Y acted without any identifiable degree of procedural fairness at all and a degree of active procedural unfairness in respect of the contents of the letter dated 23 August 2023.[106]Y did not give X details of the allegations (barring the brief conversation on 16 June). She did not conduct a hearing to get his account of the events. She did not tell him he was even being put through a disciplinary process as such. There was no attempt to conform with the three stages set out in Annex A of the employment contract.[107]Y took the decision to dismiss, informed the police then did nothing further. She told the Tribunal quite starkly that she had not had a meeting with X and did not want to do so.[108]She notified X of his dismissal in a document which falsely referred to a hearing having taken place at which he had been given the opportunity to give “an explanation” and “responses”. This was not a remotely fair characterisation of the exchange on 16 June 2023.[109]She offered him an appeal that was to herself, not a neutral other person, and then, I find, deliberately ignored his letter of response which could only be reasonably interpreted as a challenge to the correctness of decision.[110]She further compounded this by maintaining in these proceedings that she had not received X’s letter until she was asked in cross-examination. Was dismissal within the range of reasonable responses?[111]Dismissal was well beyond the range of reasonable responses. A reasonable response having regard to Z’s vulnerability and the nature of the allegation may have been to suspend X in accordance with the disciplinary policy, pending the outcome of any Safeguarding enquiry and/or her own investigation, whichever ended sooner. Y could also have looked into alternative arrangements for X working with Z alongside another PA so there would be an element of chaperoning.[112]I do not say Y should necessarily have refrained from contacting the police. In her capacity as Z’s mother she was entitled to do that albeit I am bound to say, the advantages for Z’s safety above the effects of halting unsupervised contact between X and Z and a safeguarding enquiry, are not wholly obvious. Phoning the police was certainly not the product of any advice she received from Safeguarding.[113]The important point however is that Y did not simply call the police but deliberately chose to make the police investigation a belated proxy for her own employer’s investigation. That is not reasonable but having done so, it is not then within the reasonable range of responses to dismiss X on 1 September 2023 in the very early stage of that investigation, when she herself has done nothing further. Case No. 2413027/2023 19 Polkey - 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?[114]Ms Barlay relies on Polkey. I asked whether she submitted a time period or percentage reduction reflecting the likelihood of dismissal. She submitted that with a fair procedure X could have been dismissed on 16 June 2024.[115]Mr Williams makes the point that there simply has not been a watershed moment Y can point to where she can maintain she could fairly dismiss the Claimant. He submits that any Polkey argument is last minute, not supported by evidence and opportunistic.[116]With respect to Ms Barlay, I cannot see any basis upon which X could have been fairly dismissed for misconduct or SOSR with a fair process at the time of his dismissal. I am required to consider what would have happened. What I can say with confidence is that any hearing offered by Y in summer 2023 would have proceeded without any statements or documents supporting wrongdoing in reference to the single material allegation which is the reason for dismissal. X is also certain to have protested his innocence whilst, by way of context, to have advanced details of the kind set out in his letter of 6 September. Against that backdrop, dismissal would not have been a reasonable response.[117]I also find Mr Williams’ point is sound insofar as Y basis to dismiss for misconduct is no more within the reasonable band of responses today than it was in August 2023. The complexion has not changed. Y has not advanced any new or different evidence that makes good her only real reason for dismissal. It is a matter of some conjecture quite what information or evidence the police may hold and indeed what X would, given a fair hearing, say in reply. No charge has been brought and none may ever be brought.[118]Although no specific submission was made by Ms Barlay, I am required fairly to consider the likelihood that X would have been dismissed for some other reason. I have rejected that there was SOSR at the time of dismissal. I have reflected upon but do not consider the fact of the ongoing police investigation until at least June 2024 would, at some point sooner than then, have fairly entitled Y to dismiss on the grounds of loss of trust and confidence. In the particular circumstances of this case, I am not persuaded it does. Five points are relevant:(a) The fact of a police investigation prompted at Y’s behest cannot of itself be a genuine and substantial reason to lose trust in X. The context is critical. Y knows exactly why and how that investigation started. It was not Social Services who triggered it. Y knows it's remit.(b) The fact the police investigation is ongoing for a lengthy period is not an independent marker that the allegation is well-founded. I can and do take judicial notice that the police can often take a substantial amount of time to Case No. 2413027/2023 20 investigate potential crimes. More to the point, Y is aware it is going quite slowly and has enough information to exclude that this signifies deeper concerns.(c) From the police emails of February and March 2023 it appears two statements have been obtained about inappropriate behaviour but these have not yet even been sent to the CPS to consider a charging decision. That may not necessarily happen. The evidence will require to be put to X first. This is some way off the situation in L v K where part of the loss of trust and confidence converged on the right to prosecute having been expressly reserved. I do take into account that the allegation in this case does not give rise to a generalised risk of harm to the employee’s service users but a particular risk of harm to the only individual who Y requires X to deal with. Also, that X works with Z on his own. X’s position undoubtedly calls for a very high degree of trust and confidence. However, Y does have X’s denial and, in this Polkey-scenario, X’s important letter of 6 September 2023.(d) In envisaging what would have happened if there had been no earlier dismissal, I must also consider what Y would have done. I consider she would have maintained exclusive reliance on the police investigation and persisted with her uncritical acceptance of the 16 June 2023 allegation. I find that with confidence given the defiant stance she took about still not wanting to meet with X to this day. It follows that she would not have investigated X’s account about Z’s propensity to kiss others and the potential bad faith of the accuser. In those circumstances I do not consider it would have been open to her to dismiss X for SOSR. This would be a situation of invoking the mantra to avoid the proper course of proving misconduct.(e) Consistent with there being no fair consideration of a suspension by Y, and no actual suspension, I received no evidence or submissions from Y that a paid suspension period of X of many months’ duration would not have been feasible. I note in any event, the cost associated with employing X was effectively sponsored by Social Services. Did the respondent or the claimant unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance (the Code)?[119]There were numerous and varied unreasonable failures to comply with the Code, particularly paragraph 5 (establishing the facts in an investigatory stage/ meeting), paragraph 7(the investigatory meeting should not by itself result in any disciplinary action), paragraph 9 (notifying the employee of the case to answer), paragraph 10 (notifying of the disciplinary meeting time and venue – here it was misrepresented that there had been a hearing), paragraph 12 (allowing the employee the opportunity to set out their case, answer allegations and present evidence), and paragraph 27 (providing an impartial appeal).[120]I record that I do not think there were any unreasonable failures by the Claimant to comply with the Code. Y’s actions fully justified X’s position that Case No. 2413027/2023 21 an appeal would be a gratuitous process not worth him engaging in. No opportunity was lost in the avoidance of this claim by him not pursuing that course. By what proportion, up to 25% it is just and equitable to increase X’s award?[121]The scale of Y’s failures means it is just and equitable to increase X’s award by the full maximum of 25%. Did X cause or contribute to dismissal by blameworthy conduct? and 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?[122]I take these two issues together acknowledging that there is an element of causation in the first issue that is not present in the second. The ET3 submits that the Claimant caused or contributed to his dismissal. I have not identified any culpable or blameworthy conduct of X that caused or contributed to his dismissal. He denied the allegation promptly. He later set out material of potential relevance to how an incorrect allegation might arise. He did so at a time when it was open to Y to reconsider her decision. He did not hold relevant information back that I can see.[123]I similarly cannot identify any reason of X’s conduct that would make it fair in this case to reduce the basic award. Wrongful dismissal – notice period, payment and gross misconduct?[124]X had the contractual right to 5 week’s notice which he was not paid. There are no grounds justifying non-payment since in my judgment X did not commit an act of gross misconduct. I accept that, in principle, engaging in consensual kissing with Z would constitute gross misconduct but there is no sufficiently persuasive evidence before me that X did do this. I do not place any real weight on the Interaction Record as indicating a propensity by X to the misconduct alleged. I found X an honest witness and accept his denial. X was wrongfully dismissed. Did the respondent make unauthorised deductions from the claimant’s wages?[125]The Claimant’s case is that he was not paid his wages for July 2023.Clearly this relates to the period before his dismissal.[126]It is common ground that Disability Positive run the payroll. They receive the money from social services to pay for the care of Z and in turn remitted this to X. They also provide payslips to Y for issuing to X. The amounts of pay are determined from X’s weekly time sheets which Y approves and posts on. Wages are clearly paid monthly in arrears. Case No. 2413027/2023 22[127]Y has produced payslips which show that £1072.12 was due on or around 27 July 2023, £1072.12 was due on 24 August and £1194.80 was due on 27 September. Y maintains that whilst August and September wages were paid late, all of those three sums have been paid and there are no arrears.[128]Y’s belief in payment appears to rest on information from Disability Positive but I have not been provided with evidence of actual payment by them. I do not regard the payslip that has been provided as evidence of that. There is nothing to suggest the payslip would only be sent to Y by Disability Positive when the payment was made or if it had been irretrievably set in motion.[129]As against that I find that on or around 24 August 2023 X sent a message to Y pointing to the fact that only one payment had been received (a reference, I find, to the sum due in August). X went on “still not been paid the outstanding amount for July...”. Y replied “there isn’t enough money in account so you will have to wait until they have sort it out” [p.101].[130]X has also produced evidence tending to show he was is contact with HRMC about the missing payment in early August [p.105]. He has been consistent in these proceedings that he did not receive the amount. I believe and accept his evidence and find there has been an unlawful deduction of earnings in the net sum of £1072.12[131]In respect of holiday pay, there is some difficulty in separating the liability and quantum issues. I am reserving both matters to the remedy hearing (if they cannot be agreed).I do so chiefly because I did not receive submissions from the parties as to the entitlement of the Claimant to carry over leave and it seems that his claim for 100 hours at the rate of £12 per hour (his witness statement at paragraph 53(iii)) may depend on this.[132]In the time available the parties inevitably did not have a great deal of time to address me about this. The evidence of Y was that she did not ever tell X that he could not carry over leave. However, it does seem clear from the timesheets I have seen that paid holidays were taken by X at times [e.g. p.170].[133]This case is clearly prior to the coming into force of the Employment Rights (Amendment Revocation and Transitional Provision) Regulations 2023/1426 which only took effect from 6 April 2024.[134]I note from paragraph 102 of Smith v Pimlico Plumbers No.2 [2022] EWCA Civ 70 that: A worker can only lose the right to take leave at the end of the leave year (in a case where the right is disputed and the employer refuses to remunerate it) when the employer can meet the burden of showing it specifically and transparently gave the worker the opportunity to take paid annual leave, encouraged the worker to take paid annual leave and informed the worker that the right would be lost at the end of the leave year. If the employer cannot meet that burden, Case No. 2413027/2023 23 the right does not lapse but carries over and accumulates until termination of the contract, at which point the worker is entitled to a payment in respect of the untaken leave. [My emphasis][135]I consider therefore that if the parties require the Tribunal to resolve this issue, I will need some brief submissions.[136]For now I make the following non-binding observations which I hope will be of some assistance.[137]I have not been able to work out from the time sheets that 100 hours of holiday pay arises in the period from 1 April 2023. The last in time of these sheets is dated 30 January 2023 [p.172] which is prior to the commencement of the leave year in which X left.[138]Looking at the payslips, these tend to show that holiday pay has been taken as follows: April 2023 – 64 hours May 2023 - 0 June 2023 – 12 hours July 2023 - 0 August 2023 - 0 September 2023 – minus 8 hours have been applied when Y made a deduction.[139]As to the hours worked, Y’s holiday entitlement spreadsheet [p.188] suggests that since 1 April 2023, 741.50 hours were worked, giving rise (it appears by applying the usual percentage of 12.07%) to 89 hours holiday. Y then says that 76 hours have been taken as paid leave. This would appear to leave 13.499 hours outstanding. Pausing there, I rather wonder this fits with the figure Y was trying to recall during the hearing when she acknowledged (contrary to her pleaded case) that “thirty” odd hours were due.[140]Either way, I observe that I cannot currently see how Y is able to resist liability for that. I would also observe that the 76 hours holiday pay “taken” seems not to take into account an adjustment of “- 8 hours” shown on p.192.[141]It is also not clear to me whether holiday pay of 64 hours paid on 6 April 2023 is/was deemed to be taken, whether as to part or in whole, in March 2023. I note Y says there were 32.3 hours unused in the 2022-2023 leave year [p.188]. I appreciate Y argues they cannot be taken forward but that is a somewhat different matter.[142]I am also reserving the question of liability for the 230.5 “underpaid” hours as I was not specifically addressed about this either. In her witness evidence Y has sought to deal with an acknowledged previous underpayment by reference to X’s hourly rate. It remains unclear to me whether this may be part of the issue at which X is driving or whether it all connects to the reduction in hours made in March 2023 or indeed something else. Case No. 2413027/2023 24[143]I have made directions accordingly which will come to the parties under separate cover. Approved by Tribunal Judge Miller-Varey acting as an Employment Judge 11 March 2025
THE LAW
[1]Of its own initiative the Tribunal raised the issue of whether having regard to the vulnerability of Z, and the nature of the underlying misconduct allegation, a restricted reporting order (RRO) under r.49(3)(d) may be mandated because of the statutory right to anonymity conferred on Z by the Sexual Offences Amendment Act 1992. Alternatively, the Tribunal considered that an order(s) may be warranted under Rule 49(3) in order to protect Z’s Article 8 right to respect for his private and family life. The Tribunal noted the Claimant’s concern about reputational impacts and thus that he may have a competing wish to have the benefit of a publicly available judgment.[2]Mr Williams helpfully took the Tribunal to the decision in Damilare Ajao v Commerzbank AG and Others: [2024] EAT 11[3]The Judge provided this by open-source link to Ms Barlay to consider. Both sides were given an opportunity to take instructions.[4]The Tribunal noted that a member of the public had joined the remote hearing.[5]Mr Williams indicated the Claimant had no concerns about his identity being anonymised and was supportive of protecting Z’s privacy. He submitted that the wishes of Z’s parents must be afforded significant weight.[6]He further submitted that in the circumstances, the proper consideration and application of the available orders under r.49 may make it unnecessary to reach a definitive conclusion on whether an RRO was required because the same outcome would be achieved. On whether it was mandated, this was at the very lower end of the mandated power taking into account the scant detail of the allegation.[7]He submitted that the observer would not be caught by an RRO however such that anonymisation would be necessary. This would necessarily have to be done on an encompassing basis because of the significant potential for “jigsaw identification”.[8]Ms Barlay confirmed the Respondent and her husband considered Z’s interests required that he be protected from identification and this included by someone “joining up the dots”.[9]On the question of the practicalities, the Tribunal noted the challenges of the parties’ representatives conducting the case using 4 initials for all of the main protagonists who are likely to need to be referred to. Mr Williams submitted that I could consider an order under r.49(3)(a) for the hearing to proceed in private. Case No. 2413027/2023 26[10]By this point the Judge had enquired of the observer whether he was willing to disclose his purpose in attending the hearing, stressing to him that consistent with the principle of public open justice, there was no requirement upon him to do so. He volunteered in a typed message that he was just wanting to understand how cases are conducted because he has his own employment tribunal case ongoing. The observer also commented in the chat that he understood the situation and would go.[11]I determined to make a restricted reporting order pursuant to s.11 of the Employment Tribunals Act 1996 and rule 49(3)(d). This is because:(a) the misconduct alleged to entitle the Respondent to terminate the Claimant’s employment appears to falls within the definition of s. 2(1) of the Sexual Offences Amendment Act 1992 (the 1992 Act);(b) a complaint has been made to Lancashire Police about the allegation and there is an email from Lancashire Police to the Respondent in the bundle that shows that as at 14 March 2024, police inquiries were ongoing. Within that email reference is made to “sending the incident to the CPS” [p.128];(c) Following Damilare Ajao v Commerzbank AG and others: [2024] EAT 11 the automatic lifelong anonymity provided for under the 1992 Act attracts under s.1(1) of the 1992 Act to a formal allegation made in the context of potential criminal proceedings, where a criminal charge may be brought (paragraph 77). There is no requirement that the allegations be made by the victim; a parent raising the issue for a child may be sufficient (paragraph 74)(d) Further, following Damilare at paragraph 82: “82. The cross-reference to the 1992 Act in the definition of “sexual offence” in section 11(6) of the 1996 Act, the rule making provision which (together with section 7 of the 1996 Act) authorises the making of rule 50, suggests that parliament had in mind the possibility that the protection of the 1992 Act could apply in cases where the same conduct is alleged as a criminal matter and in employment tribunal proceedings. It appears that, in such a case, any privacy order would be made under rule 50. Obviously, a tribunal in such a case would want to avoid any clash with the criminal law, disclosure of a protected person’s identity being an offence under section 5 of the 1992 Act.(e) an RRO would be in furtherance of avoiding that clash with the criminal law. It is therefore appropriate to protect Z’s identity from disclosure.[12]I also determined to make an order for anonymisation under r.49(3)(b). This includes key people and places as set out further in the order. This will protect Z’s identity in relation to any documents entered onto the Register, or which otherwise forms part of the public record. This is in furtherance of the statutory right arising under the 1992 Act. Case No. 2413027/2023 27[13]I also determined that the hearing should be held in private under r.49(3)(a).[14]In making that order, I gave full weight to the principle of open justice and the convention right to freedom of expression.[15]I concluded that that nothing short of holding the hearing in private would secure the proper administration of justice and the protection of Z’s article 8 right to respect for his private and family life.[16]The interests of justice are served by the timely and efficient disposal of this case which has been ongoing since December 2023, in which a stay has already been refused and which the time available for final hearing was limited to one day. The issue of non-identification/privacy had not been noted sooner and the parties’ representatives had not prepared their questioning or submissions in a way that reflected the anonymisation. This, allied to the scale of anonymisation, meant the flow and pace of the proceedings would be negatively impacted with a real risk of inadvertent naming. It was just and proportionate therefore to exclude members of the public. Case No. 2413027/2023 28 ANNEX B List of Issues 1.What was the reason or principal reason for dismissal? The respondent says the reason was conduct or some other substantial reason. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct. 1.2 If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:1.2.1 there were reasonable grounds for that belief;1.2.2 at the time the belief was formed the respondent had carried out a reasonable investigation;1.2.3 the respondent otherwise acted in a procedurally fair manner;1.2.4 dismissal was within the range of reasonable responses. 2. Remedy for unfair dismissal2.1 Does the claimant wish to be reinstated to their previous employment?2.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?2.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.2.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.2.5 What should the terms of the re-engagement order be?2.6 If there is a compensatory award, how much should it be? The Tribunal will decide:2.6.1 What financial losses has the dismissal caused the claimant?2.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?552.6.3 If not, for what period of loss should the claimant be compensated?2.6.4 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?2.6.5 If so, should the claimant’s compensation be reduced? By how much?2.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?2.6.7 Did the respondent or the claimant unreasonably fail to comply with it?2.6.8 If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?2.6.9 If the claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct?2.6.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?2.6.11 Does the statutory cap of 52 weeks’ pay apply?2.7 What basic award is payable to the claimant, if any? Case No. 2413027/2023 292.8 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? 3. Wrongful dismissal / Notice pay3.1 What was the claimant’s notice period?3.2 Was the claimant paid for that notice period?3.3 If not, was the claimant guilty of gross misconduct? i.e. did the claimant do something so serious that the respondent was entitled to dismiss without notice? 4. Holiday Pay (Working Time Regulations 1998)4.1 Did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when their employment ended?4.2 What was the claimant’s leave year?4.3 How much of the leave year had passed when the claimant’s employment ended?4.4 How much leave had accrued for the year by that date?564.5 How much paid leave had the claimant taken in the year?4.6 Were any days carried over from previous holiday years?4.7 How many days remain unpaid?4.8 What is the relevant daily rate of pay? 5. Unauthorised deductions5.1 Did the respondent make unauthorised deductions from the claimant’s wages?5.2 If so, how much was deducted/how much wages are owing to the claimant? 6. Breach of Contract6.1 Did this claim arise or was it outstanding when the claimant’s employment ended?6.2 Did the respondent do the following: 6.2.1 Fail to pay the claimant’s expenses.6.3 Was that a breach of contract?6.4 How much should the claimant be awarded as damages? Case No. 2413027/2023 1 EMPLOYMENT TRIBUNALS Claimant: X Respondent: Y Heard at: Manchester (by CVP) On: 3 July 2025 Before: Employment Judge Miller-Varey REPRESENTATION: Claimant: Mr B Williams (Counsel) Respondent: Ms Y Barlay (Consultant)
Evidence
[17]I make the following findings together with those set out in the analysis and conclusion sections below.[18]The Claimant normally worked 32 hours per week plus an average of 4 additional hours, perhaps a little short of what we think of as a standard full-time post but certainly not part-time in the conventional meaning of that phrase. The repository of his skills lies in the care sector. That is clear because he has spent two substantial periods caring for the Respondent’s adult child who is a vulnerable person with additional needs. Prior to the events that underpin this claim the Claimant had, I find, an unblemished work history. Had he been looking for alterative work, he could fairly report that fact to potential employers.[19]The Claimant suffered significant alarm and stress from the Respondent’s actions. In his witness statement, he described being in a constant state of significant upset and unable to sleep. He also felt his personal and professional reputation was destroyed. I accept this. His means of living had been summarily removed. Given his specialism, the circumstances of the dismissal also created an immediate and lengthy bar to alternative employment in that field. I will return this below.[20]The Claimant does not drive. He is unable to do so because of impaired eyesight. He last drove about eight years ago. The Claimant requires a magnifying glass to read standard print. I have seen this in the two hearings that have been conducted before me. It is, I recall, also part of the evidence in this case that when an alternative carer was brought on board by the Respondent, she considered it an advantage because that carer had a car and could drive her son to places, unlike the Claimant.[21]The result is that the Claimant is dependent on walking and using public transport to attend any workplace.[22]The Claimant has focused his search for work geographically in Accrington and in Blackburn.[23]Accrington is the Claimant’s nearest town. It has experienced closures of larger businesses. One of the biggest employers, Express Gifts, closed recently. Since the lockdowns of the pandemic, many pubs in Accrington and Blackburn have also closed.[24]It is 10–15-minute walk from the Claimant’s house to the bus and train station in Accrington. From there, available routes and approximate travel times are: Case No. 2413027/2023 5 Blackburn – By bus 30-40 minutes. By train, 15 to 20 minutes. Burnley – By bus between 1hr and 1hr and 20 mins. By train, 10 minutes. Preston – By train, 40-50 minutes by train. Manchester – By train, 1 hr and 10 minutes Leeds – By train, 1 hr and 10 minutes[25]The Claimant started his search for work around four months after his last day of work for the Respondent in June 2023. This was after he had dealt with the police interviews. I deduce from the Claimant’s expenses record sheet that the second interview took place on 4 September 2023 [LB, p.146]. He looked mainly for permanent full-time work.[26]He has not made any applications in the care sector. He expected these would be hopeless applications because of the allegations of the Respondent against him and the related police investigation.[27]His applications have mainly been for customer service assistant roles in retail. This has extended to work in a supermarket café. The Claimant has made around thirty such applications in total, in each case applying directly through the employer’s websites. Because he has no computer and no independent internet access at home, those applications have been mainly completed using his mobile phone. The Claimant has sometimes been able to get assistance from a friend who has a computer. In early course the Claimant alighted on the idea that direct applications are preferable and more than likely to bear fruit than applications made through an agency. I also accept that most of the agency jobs in his area are care roles.[28]When it comes to completing applications, the Claimant has hit a block on occasions where the proposed employer wanted a reference. I find that in November 2024 the Claimant posted a letter through the Respondent’s door requesting a reference. The Respondent ignored this.[29]The Claimant has not had any interviews or positive responses at all from employers he has tried. He has sometimes tried to obtain part-time work, even though this is not what he wants. He did so in recognition that there appeared to him to be relatively greater numbers of part-time vacancies.[30]The Claimant became registered as his elderly mother’s carer in around September 2023. She was then somewhat infirm but was supported by third parties to undertake chores and such like. She moved in with the Claimant in April 2024. Nevertheless, the Claimant’s preference and wish have consistently been to undertake work on a full-time basis. I accepted his evidence that he intended to finance the necessary daytime care (which is really to check on his mother for an hour a day) from his earnings. He also has good neighbours who could potentially help out. Case No. 2413027/2023 6[31]Since the liability hearing both the Claimant and separately, his solicitors have sought confirmation from the Police about the status of their investigation. Despite requesting contact back, no response has been received to date. Findings of fact relevant to Costs[32]The Claimant intimated his legal claim against the Respondent in his solicitor’s letter of 19 September 2023. This came on the heels of the Respondent ignoring the Claimant’s personal letter of 6 September 2023. A fair reading of the latter was to give the Respondent a chance to sort things out and treat the Claimant fairly despite all that had so far happened. He specifically said “you must allow time for the police to carry out there [sic] part of the investigation before you make any decision” [LB p.113]. The Respondent had to be brought through cross-examination to admit that she had even received the Claimant's letter.[33]At the time of receiving Farleys’ letter of 19 September 2023, the Respondent was not legally represented. She engaged Peninsula for legal advice at some point tween 4 and 18 October 2023. That was shortly before Early Conciliation commenced. That is established from correspondence in the Liability Bundle [LB pp.123-124]. The advice sought can only have been in respect of the legal complaints Farleys identified.[34]Their letter set out in robust, clear and cogent terms the reasons why the Claimant’s dismissal was wrongful and unfair. The contents align strikingly with what would prove to be my findings some 18 months later.[35]Farleys’ letter made the point that there were grounds for an appeal but that this would, in all of the circumstances, be a sham. The Respondent did not gainsay that, offer any different or neutral appeal manager or recant her false assertion that the Claimant had already been granted a hearing [see LB, p.104]. This was despite the clear light being shone on the strength of the Claimant’s legal position.[36]Farleys have also warned the Respondent in writing on a number of occasions in the course of these proceedings that their client’s case is strong; the response had no reasonable prospect of success and that it was being conducted in a misconceived manner. The whole of the inter partes correspondence was not produced but the assertion to this effect in Farleys’ immediate pre-application warning of 30 June 2025 [RB p.74] was in no way challenged. My finding is that Farleys drew attention to the Respondent’s flawed approach.[37]At the liability hearing in February 2025, all the complaints were denied by the Respondent only for some of them to end up being admitted months later by service of the counter schedule. Narrowing issues and acting reasonably is to be encouraged. However, nothing has been presented to me to explain why these concessions could not have been made sooner by the Respondent and time and money saved. Case No. 2413027/2023 7[38]I make no findings about privileged, without prejudice discussions between the parties. Ms Barlay attempted to address me about this but since there was no clear joint waiver of privilege, I did not allow it. Findings of fact about means[39]The Claimant has asserted in correspondence that the Direct Payment Scheme required the Respondent to hold employer liability insurance. That would seem likely and sensible. Nevertheless, and regrettably for all, I am satisfied that neither the liability remedies nor costs are underwritten. Quite why insurance was not taken or has been avoided has not been explained, but it defies belief that the Respondent would defend these proceedings alone were it otherwise. This is relevant to costs because I find the Respondent will be personally responsible for any sums ordered to be paid.[40]The Respondent works in the community as a carer for elderly people. She works varied hours on a zero hours contract, sometimes up to 70 per week. I find she can generally increase her hours in line with the financial demands upon her. This was the effect of her evidence. Her payslips demonstrate variability consistent with the facility to obtain more work when needed.[41]The payslips confirm that her rate of pay is the national minimum wage of £12.21 per hour. The Respondent’s hours dipped in March 2025 when she had treatment for carpal tunnel but even then, only down to around £1250 net of tax. I accepted her evidence that her average net earnings are £1,600 per month. Although I was provided evidence of MSK/Physio appointments in April and June 2025, I was not satisfied that the Respondent is facing a future disabling injury or condition that meaningfully reduces her capability for work.[42]She lives and shares household expenses with her husband. The house is a 3-bedroomed terrace with an attic. The other two inhabitants are Z and a second adult son who has been saving for a mortgage and does sometimes contribute to the house by buying groceries. He will be moving out soon. The Respondent’s evidence was that her household bills amounted to £800 including gas, electricity, phone, internet, pet insurance, water rates and house insurance. I did not hear about Council Tax, but the total already seems a little on the high side to me and was not supported with documentary evidence. I am prepared to assume £750. I do accept that grocery shopping is an additional expense item of around £600 per month for the family.[43]The Respondent and her husband do not have a mortgage. The property was purchased for £94,000 using an equity loan from the Council of £25,000. This loan does not need to be repaid until sale and does not attract ongoing repayments. I accept the Respondent and her husband have a joint debt to family of no more than £19,000. The greatest part of the money borrowed was spent on upgrades to their home. There are no legally binding terms as to repayment. The Respondent seeks to pay this back as and when she can.[44]The Respondent’s husband works in a supermarket stacking shelves on nightshift. He is back to work having recently had six months off for a shoulder operation. He received full pay for half of that time followed by statutory sick pay. There is no reason to think he will not now be capable of full-time work Case No. 2413027/2023 8 going forward. The Respondent said his earnings were £1300 net per month, which I note is less than a net full-time salary paid at the national living wage.[45]I further find that, putting aside any vehicle, the Respondent does not have any other assets or income. Nor does she have any other liabilities.[46]There was no evidence that she needed to support Z financially other than through providing space in her home and providing meals when he is there. The Law Compensation for unfair dismissal
The Law
[47]The compensatory award must be determined in accordance with s123(1) of the ERA which provides: ‘…. the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to the action taken by the employer.’[48]The purpose of the award is to compensate for loss actually suffered and not to grant a bonus or punish the employer for its actions. Categories of loss that may be included are past and future loss of earnings, loss of pension and fringe benefits, loss of statutory rights, and expenses incurred in looking for other work.[49]The duty to mitigate the loss applies in the same way as it does to a damages claim (s.123(4)).[50]The Claimant is required to take reasonable attempts to mitigate their losses. The extent to which the Claimant has failed to do this should be taken into account by the Tribunal. It is, however, for the Respondent who seeks to argue a failure by the Claimant to mitigate his losses to show this to the Tribunal. A Respondent will not discharge that burden merely by showing the Claimant failed to take a step that was reasonable; the Respondent must show that the Claimant behaved unreasonably in so failing. It is settled that Tribunals should not apply too demanding a standard to the Claimant. Costs[51]An order for one party to bear the costs of another is an exceptional order in the Employment Tribunal. The Presidential Guidance on Case Management Guidance Note 7, paragraph 1 provides: “the basic principle is that Employment Tribunals do not order one party to pay the costs which the other party has incurred in bringing or defending a claim. However, there are a number of important exceptions to the basic principle...”.[52]Even when one of the exceptional grounds to order costs is made out under the rules, the purpose must only be compensatory and not punitive Lodwick v Southwark LBC [2004] ICR 884 CA and the costs awarded are limited to what is reasonably and necessarily incurred by the receiving side Barnsley Metropolitan BC v Yerrakalva [2012] IRLR 78 CA. Case No. 2413027/2023 9[53]The Tribunal’s jurisdiction to make a costs order is contained in rule 74 which so far as material provides as follows: 74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, or (b)any claim, response or reply had no reasonable prospect of success...[54]Just because the threshold for mandatory consideration under r.74(2)(a) and/or r.74(2)(b) has been attained, it does not follow that an order for costs in any amount should be made. This is stage one is an essentially three stage process. The remaining two stages are whether the Tribunal should exercise its discretion to make an award and the amount and form of the award. The means of the Respondent may be relevant to both additional stages. That is provided for expressly under r.82.[55]Where means are taken into account, findings of fact must be made based on evidence adduced, even if that involves drawing inferences Oni v NHS Leicester City [2013] ICR 91 EAT. Although a party should not be ordered to pay a sum that they have no realistic prospect of being able to pay if there is a realistic prospect that sometime in the future they may be able to afford to pay, I may take this into account (Herry v Dudley Metropolitan Council [2017] ICR 610 EAT and Vaughan v Lewisham LBC [2013] IRLR 713 EAT).[56]As for the nature and amount of the costs order, there must be a link of some kind between the costs and the conduct. That said, a precise causal link is not required, and the receiving party’s conduct also be a relevant consideration (Yerrakalva).[57]Rule 76 provides: 76.—(1) A costs order may order the paying party to pay— (a)the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b)the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i)in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles; ... Case No. 2413027/2023 10 (c)another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing; (d)an amount agreed between the paying party and the receiving party in respect of the receiving party’s costs. (3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000.[58]It is established that any order for unassessed costs (which is to say costs not subject to detailed assessment) must be for a fixed sum (Lothian Health Board v Johnstone [1981] IRLR 321 EAT). Analysis and Conclusions
Remedy
[59]I am entitled to take into account the personal characteristics of the Claimant, including his age and health. I must also factor in contingencies such as whether and for how long he would have remained in his job and whether the level of earnings he enjoyed would have remained the same.[60]The Respondent did not make any argument that the Claimant’s earnings would have reduced. There is no basis to think that they would have done so. He has previously protested an attempt to unilaterally lower his hours.[61]I find nothing unreasonable in the Claimant leaving his job search until after he had dealt with the police interviews. The events that unfolded were a huge and unexpected broadside. He was under significant stress. He was also trying to obtain resolution with the Respondent by pointing out the flaws of her actions in early September.[62]I find the Claimant is entitled to have focused his search for work chiefly on permanent employment in Accrington and Blackburn. None of that has been demonstrated to be unreasonable in any way.[63]I reject the submission that because a trail of automated acknowledgment emails has not been produced, the Claimant’s veracity should be doubted when it comes to the number of applications. I considered his evidence to be given across both hearings in a conspicuously transparent way. He was not overegging his job search. If that had been his object he would not have limited himself to “at least 30 applications” in the time since his dismissal. Moreover, during unplanned questioning he was able to name particular places of application including, Primark, Tesco, Winfields and a local bakery. This added credibility to what he said.[64]I also find nothing turns on the lack of information or evidence in respect of the Claimant’s dealings with a “Work Coach”. The Claimant’s evidence, which I accept, was that he had not been advised by the Benefits Agency how to Case No. 2413027/2023 11 look for work. The Claimant has noted in his schedule of loss that he has consistently received Universal Credit since January 2024. This would suggest that, so far as necessary, the Claimant is compliant with any requirements imposed on him. The Respondent has not put forward anything different, whether as to the operation of Universal Credit generally or the Claimant in particular.[65]Although public transport is available that would take the Claimant to a number of other towns, the Respondent - who lives locally herself - has not demonstrated that there were any viable opportunities available there which the Claimant has unreasonably turned away from.[66]Ms Barlay provided evidence of caring posts advertised by Lancashire County Council in the Fleetwood, Fylde and Lancaster in January and February 2025. These places are further away again, necessitating the use of multiple buses or trains on each leg of the journey, bookended with a walk at each end. The travel expense is greater, and this would eat into the Claimant’s likely minimum wage salary. The fact the Claimant did not pursue these opportunities is not unreasonable.[67]Conversely, I find local work is naturally preferable for sound reasons that do not reflect the Claimant is work shy or seeking a lifestyle choice inconsistent with acting reasonably to mitigate his loss. It is, as Mr Williams argues, a matter of public record that East Lancashire - in which other towns like Burnley and Blackburn also sit - are amongst the most socially deprived areas in the country and have suffered as a result of extended lockdowns. This limits the opportunities available to the Claimant. So too does having to seek out employment at a very late stage in his working life. The Labour Demand information from Nomis refers to Lancashire as a whole in 2023, which is somewhat different.[68]I am amply satisfied that it was pointless for the Claimant to seek work in the care sector. The necessary disclosure required of him, reinforced by that from the police, meant no responsible organisation or person would have considered engaging the Claimant at any point before (at the very earliest) the published outcome of the liability hearing. That did not happen until March 2025. I would add for completeness; the concurrent police investigation does not mean the Claimant’s barrier to work was not, as a matter of causation, the result of his unfair dismissal. The police investigation simply overlayers what was set in motion by the Respondent’s decision to unfairly dismiss. Put another way, even if even if the police had not been investigating, the Claimant would not realistically be able to get a care-based job when honestly accounting for what was alleged and continued to be maintained against him.[69]Even from March 2025, the Claimant faced the further hurdle of having been out of action and having no positive or even neutral reference. On that issue, the Claimant was challenged about not citing the Respondent as a referee to employees. That would be a wasted and absurd exercise in my view. He requested a reference in November 2024 and that was ignored. He had no cause at all to think the Respondent would react differently if approached by a would-be new employer. Case No. 2413027/2023 12[70]A reference has not been offered since the outcome of the liability hearing. The first time it has been offered, and even then, inferentially rather than expressly, is through cross-examination at the remedy hearing.[71]In respect of the Claimant’s caring role for his mother, this is not a full-time commitment nor is it is one which he actively sought out. Had he not been unfairly dismissed, I am persuaded he would have carried on working full-time and got help from third parties.[72]Looking at the position on 3 July 2025, the complexion of things has changed. The Claimant has the benefit of my findings and the outcome when seeking employment. It is true that he still does not have a reference. That may never come but the case is over, freeing him to fully focus his efforts on employment with the benefit of having been independently cleared of misconduct in his last role.[73]The criminal investigation is ongoing in the sense, at least, that no confirmation of closure has been obtained. I remind myself that I am concerned with the amount that is just and equitable having regard to loss sustained in consequence of the dismissal insofar as that loss is attributable to the action taken by the Respondent. To the extent that the police investigation forms a barrier to the Claimant obtaining work henceforth, I do not think that can be laid at the Respondent’s door. The police have taken a very long time. The Respondent has no power to influence a prompter conclusion.[74]I reject the Claimant’s claim for lost earning up to February 2026. He is entitled to loss of earnings only up to 3 July 2025. Calculations of Unfair Dismissal Compensation Preliminary Employment Start date – 15.03.18; End date – 1.09.23; 5 years' service. Aged 56 at Effective Date of Termination (EDT) Gross monthly pay - £1897.00; Gross weekly pay - £437.77; Net weekly pay - £376.48 Employer pension contributions per week - £9.53 The basic award 1.5 x 5 x 437.74 = £3283.27 The compensatory award Case No. 2413027/2023 13 Immediate loss of earnings (from the expiry of the notice period up to the Remedy Hearing) 6.10.23 to 3.7.25 = 90 weeks 90 x 376.48 (net weekly wage) = £33, 883. 20 net wages 90 x 9.53 (weekly pension) = £857.70 pension Total loss = £34, 740.90 Future loss of earnings The Tribunal made no award for loss of future earnings. Deductions There were no deductions for mitigation earnings or Polkey Increase/reduction under s.124 A (Acas Code) 0.25 x £34, 740.90 = £8685.20 Subtotal for compensatory award = £43, 426.13 Loss of statutory rights It would be just and equitable to award £500.00 for loss of statutory rights, to reflect the five years continuous employment the Claimant had with the Respondent. Recoupment The Employment Protection (Recoupment for Jobseeker’s Allowance and Income Support) Regulations 1996 take effect because the Claimant claimed Universal Credit. Jobcentre Plus will inform the Respondent of how much it must deduct from the compensatory award in order to reimburse the state for benefits paid. The balance will then be paid to the Claimant. Only the loss of wages element of the compensatory award forms the prescribed element for recoupment purposes (i.e. pension contributions must be excluded) Loss of wages = £33, 883. 20 Summary The Prescribed Element is £33, 883.20 The total monetary award is £47, 209.40 ( £3283.27 + £43, 426.13 + £500) The excess of total monetary award over the prescribed element is: £13, 326.20 Case No. 2413027/2023 14 The Prescribed Period is 6 October 2023 to 3 July 2025. Costs Submissions
Summary
[75]Mr Williams argued that the response was misconceived from the very outset and it was also unreasonable to have continued to defend the claim down to and including the remedy hearing. He submitted the response constituted a flat denial which was inadequate; there was no semblance of process, and the Respondent had resisted all attempts to make her see sense. She was clearly hoping, he said, that the case would fall away. The implication of the late concessions is that the Respondent did not have a genuine belief that the Claimant was treated in accordance with employment law. It was simply that she did not believe the Claimant did deserved to get anything.[76]In terms of the conduct of the litigation, he drew attention to the failed stay application which created additional cost and was in furtherance of the flawed defence. He also pointed to his client’s emphatic success at the liability stage. The disingenuous evidence and negative findings, he argued, were the icing on the cake of his costs application; they only made the established case for costs stronger.[77]As to the exercise of my discretion to order costs and the amount of costs, Mr Williams submitted, the Respondent’s means is not a factor that should weigh heavily unless there is financial difficulty and evidence is presented of no ability to pay.[78]Ms Barlay submitted that the response was not unreasonable; it could have succeeded. As parents, the Respondent and her husband were deeply invested in the case because they considered the Respondent’s behaviour was inappropriate to their son. They would not have the foresight that someone who is legally trained is going to have.[79]As to the exercise of my discretion and the amount of costs, Ms Barlay pointed to the Respondent’s salary being taken up completely with household expenses and grocery shopping. She said that the combination of the sums due under the liability judgment and the claimed costs would take the Respondent and her husband “over the threshold” such that costs should not be ordered. It would be contrary to the interests of justice. They had already been required to pay an ACAS uplift of 25%. She argued that any ordered costs should be proportionate to the income of the Respondent. Conclusions on costs[80]Despite the exceptional nature of costs orders, I am satisfied that the threshold for mandatory consideration is satisfied under rules 74(2)(a) and (b)).[81]The reasons I consider the response pleaded and pursued never had a reasonable prospect of success are these: Case No. 2413027/2023 15 a) The procedurally unfair aspects of this dismissal were writ large on the face of the ET1. They had already been well-rehearsed in correspondence. The failings read frankly like a textbook case of unfairness. The Respondent actively pleaded that a reasonable investigation was what underpinned her belief in misconduct. That was, as she well-knew, not the case. She actively decided not to investigate in any meaningful or reasonable way at all. Through her witness evidence, for the first time, her case morphed into a belief based instead on the amalgam of: a fleeting, implied admission from the Claimant, a previous report of misconduct, earlier concerns about the Claimant and a direct conversation with the witness of the alleged misconduct. Of these factors, only the latter could be approximated to an investigative step. Even if I had accepted the Respondent’s evidence, it was never going to constitute a reasonable investigation on its own. As it was, I rejected the Respondent’s evidence about it as well as the other new matters relied upon which were a contrived retrofit of reasons. Knowing what the Respondent did, it was or should have been as clear as day to her that the dismissal lacked any fair process and a declaration of unfair dismissal would follow on that basis alone. b) The Respondent not only knew she had undertaken no sufficient investigation, at the liability hearing she actively disavowed ever having any responsibility to do so. It follows that her hopes of resisting or reducing liability through her pleaded, alternative defences of Polkey and/or contribution substantially rested upon the outcome of a third-party investigation. That third party was the Police. The Respondent’s approach was highly speculative and grossly unreasonable. In no way did she go about in what I have seen trying to prove her own defence i.e.: “Further or alternatively, the Respondent contends that whatever procedure had been followed, the Claimant would have been dismissed in any event because of the substantive fairness of the dismissal, the seriousness of the misconduct and the evidence that the Claimant was guilty of that conduct” [My emphasis] c) Still less, at the time the response was lodged did the Respondent have available to her the grounds for that defence. The alleged written report of earlier misconduct was not received, on her own case, until late 2024 [RB p.44, paragraph 32]. d) It is right to acknowledge that there are other claims apart from unfair and wrongful dismissal. The pleaded response ran an effectively factual denial of them all. Ultimately however, only one matter was contested by the Respondent. Capitulation on the others came at the eleventh hour.[82]I have taken into account that litigants in person should be judged less harshly than represented parties. However, that only takes the Respondent to 18 October 2023. At the time of the submission of the ET3, she is to be treated as having the full benefit of representation. Proper, objective evaluation given Case No. 2413027/2023 16 on the basis of fully and honestly disclosed facts from the Respondent could only be that the response had hopeless prospects of defeating the claim.[83]I also find that in relation to rule 74(2)(a) that there has been abusive conduct by the Respondent which has contributed to avoidable costs in this case. These include the pleaded denial of the receipt of the Claimant’s appeal letter. There was a complete volte face in oral evidence. Ms Mitchell’s witness statement - prepared and filed to protect against other claims of non-receipt - could have been avoided without this. There were other respects in which the pleaded case differed materially from the witness evidence that was submitted without ever any explanation. There was a haphazardness and a carelessness with which the Respondent treated these proceedings.[84]In weighing up whether the tests under r.74 are satisfied, I have kept firmly in my mind that costs are an exceptional jurisdiction for the Employment Tribunal. The purpose of an order is compensatory. It should not be punitive. It is clearly important for parties to have an opportunity to defend claims, and evidence is often rejected without it warranting any finding of unreasonableness. I have also been careful not to conflate or to carry over into my evaluation of costs, the negative view I have formed about non-compliance with the ACAS code. I nevertheless conclude that analysed discretely and neatly, the threshold for costs is met.[85]We then get to the second and third stages of the costs determination: whether to exercise the discretion and if so, what award to make.[86]There is no persuasive reason to withhold from a costs order. The Claimant is not a man of comparatively better means as his receipt of Universal Credit marks. He engaged solicitors reasonably. They have needed to chart this litigation with conviction and effort, in the face of unheeding resistance.[87]As to the amount of the award, my decision is that the Respondent should pay the costs incurred by the Claimant which fall within the schedule [RB p.76-77] under the headings “Post Claims Issue/Case File Costs”. In other words, I am not finding her responsible for the pre-issue costs of £5101.20 including VAT.[88]In reaching the decisions at paragraph 86 and 87, I have considered the means that are available to the Respondent. I have noted Ms Barlay’s submissions. I can see there may be some difficulties and hardships ahead for the Respondent in discharging the judgments and costs. However, Ms Barlay relies on the wages of the Respondent being already eclipsed by the outgoings of the household, including food. That is not the full story of course. There is the Respondent’s husband to factor in. The outgoings will be at least shared between them, across both salaries. Their outgoings are lower than many households too because there is no rent or mortgage in payment.[89]Putting this together, it has not been demonstrated to me that costs are abjectly unaffordable. We are very far from there being no prospect of the Respondent ever being able to pay them. I can take into account that the costs may be discharged from future earnings, over time. Case No. 2413027/2023 17[90]I have also considered the proportionality and reasonableness of the costs claimed. I take the view that it is right to disallow all the pre-issue costs up to 7 December 2023, even though for some part of this period the Respondent was represented. It is right to give some allowance for the fact the Respondent is not a conventional or commercially driven employer. She became an employer to facilitate a particular model of caregiving for her vulnerable son. With that may come some reluctance to accept the full, and perhaps surprising, legal consequences of having assumed the role. From the Claimant’s point of view, costs incurred up to this point are a straightforward overhead of communicating and asserting his rights. He should bear the costs.[91]The reality shock of proceedings being issued was a watershed moment though. It called for a limited defence focused only on reasonably arguable grounds in law and fact. At its highest, this should have been the remedy defence of failure to mitigate. On that point, no part of the costs I am awarding relate to the remedy hearing. The latter costs have, rightly, not been claimed under r.74. I would not have ordered the Respondent to pay them. The arguments advanced for the Respondent at the remedy hearing were not intrinsically flawed. The Claimant has not succeeded to the extent claimed on the remedy issue.[92]Looking then at fees that have been incurred by the Clamant, they are not broken down in terms of the specific tasks done on each occasion. I am urged to take a broad-brush approach though. Doing that, what I can see is this. The disbursements reflect Counsel’s work in this case. His fees are eminently reasonable, if not at the lower end of the scale for the work that has been done across two contested hearings. We are then looking at Farleys’ costs. To my mind, considering the amount of preparation involved in the witness statements, the necessary collation of all of the materials relating to the wrongly disputed holiday pay and wrongly disputed deductions from wages, together with the work associated with the stay application and correspondence, I am satisfied that the £7606.00 plus VAT claimed is perfectly reasonable in all of the circumstances.[93]The total figure I find the Respondent must pay by way of costs is £11, 593.50 plus VAT of £1838.70. This comes to £13,432.20.[94]Finally, I apologise to the parties that there has been some delay by me in producing these reasons owing to other commitments. They will, I hope, have appreciated from the reconsideration directions that the request for Reasons was communicated to me by HMCTS over three weeks after it had been received. Approved by Tribunal Judge Miller-Varey acting as an Employment Judge 13 November 2025 Case No. 2413027/2023 18
Summary
[1]At the remedy hearing, neither side’s representatives submitted to the Judge (and it was not independently heeded by her) the need to apply the statutory cap as prescribed under s.124 (1ZA) ERA 1996.[2]It is common ground that the statutory cap for this case is the lower of £118, 223 and 52 x a week’s gross pay of the Claimant. The latter figure is £437.77.[3]Written reasons have previously been provided in respect of the original remedy judgment of 8 July 2025.[4]Those reasons continue to underpin the varied judgement save that the application of the statutory cap alters the calculation of the financial award for unfair dismissal compensation as follows (underlining is new/ different material): Calculations of Unfair Dismissal Compensation Preliminary Employment Start date – 15.03.18; End date – 1.09.23; 5 years' service. Aged 56 at Effective Date of Termination (EDT) Gross monthly pay - £1897.00; Gross weekly pay - £437.77; Net weekly pay - £376.48 Employer pension contributions per week - £9.53 The basic award 1.5 x 5 x 437.74 = £3283.27 The compensatory award Immediate loss of earnings (from the expiry of the notice period up to the Remedy Hearing) Case No. 2413027/2023 3 6.10.23 to 3.7.25 = 90 weeks 90 x 376.48 (net weekly wage) = £33, 883. 20 net wages 90 x 9.53 (weekly pension) = £857.70 pension Total loss = £34, 740.90 Future loss of earnings The Tribunal made no award for loss of future earnings. Deductions There were no deductions for mitigation earnings or Polkey Increase/reduction under s.124 A (Acas Code) 0.25 x £34, 740.90 = £8685.20 Subtotal for compensatory award = £43, 426.13 Application of the statutory cap being the greater of 52 x £437.77 (£22, 764) or £118, 223 = £22, 764. Loss of statutory rights It would be just and equitable to award £500.00 for loss of statutory rights, to reflect the five years continuous employment the Claimant had with the Respondent. Recoupment The Employment Protection (Recoupment for Jobseeker’s Allowance and Income Support) Regulations 1996 take effect because the Claimant claimed Universal Credit. Jobcentre Plus will inform the Respondent of how much it must deduct from the compensatory award in order to reimburse the state for benefits paid. The balance will then be paid to the Claimant. Only the loss of wages element of the compensatory award forms the prescribed element for recoupment purposes (i.e. pension contributions must be excluded) Loss of wages = £33, 883. 20 Adjustment of the Prescribed Element Case No. 2413027/2023 4 The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 4. Duties of the industrial tribunals and of the Secretary of the Tribunals in respect of monetary awards ... (2) Where the industrial tribunal in arriving at a monetary award makes a reduction on account of the employee’s contributory fault or on account of any limit imposed by or under the 1992 Act or 1996 Act, a proportionate reduction shall be made in arriving at the amount of the prescribed element. Resulting reduction from application of statutory cap, expressed as a % = 48% (i.e. £43, 426.13 - £22, 764 = £20, 662.12 £20,662.12/ £43, 426.13 = 0.475) Prescribed element (£33, 833.20) as reduced by 48% = £17, 593.26 Summary The Prescribed Element is £17,593.26 The total monetary award for the complaint of unfair dismissal is £26, 547.27 ( £3283.27 + £22, 764 + £500). The excess of total monetary award over the prescribed element is: £8954.01 The Prescribed Period is 6 October 2023 to 3 July 2025. Approved by Tribunal Judge Miller-Varey acting as an