Mrs C E M Zougari v Kidzrus Nursery Ltd: 2420683/2020 and 2411487/2021
EMPLOYMENT TRIBUNALS
Case No 2420683/2020, 2411487/2021
Between
Mrs C E M ZougariClaimantKidzrus Nursery LtdRespondent
Before
Employment Judge SlaterMs A Dannreuther (instructed by counsel) for claimantDate 13 March 2025
JUDGMENT
[1]The complaint of ordinary unfair dismissal is well founded.[2]The complaint of automatic unfair dismissal relying on Section 99 of the Employment Rights Act 1996 and Regulation 20 of the Maternity and Parental Leave Regulations 1999 is not well founded.[3]The complaints of victimisation are well founded.[4]Remedy will be determined at a remedy final hearing on 20 January 2025.
REASONS
The Law
[1]The Tribunal gave oral judgment and reasons on 13 September 2024. The respondent asked for written reasons at the hearing so these reasons are provided together with the judgment.[2]There was insufficient time to deal with remedy at this final hearing so a further final hearing has been arranged on 20 January 2025 for the purposes of dealing with remedy. Separate case management orders have been sent to the parties for preparation for that hearing. Although a Spanish interpreter was provided, at the claimant’s request, for her evidence during this liability hearing (more of which below), the claimant has said that she does not require an interpreter for the remedy hearing. Claims and issues[3]The claimant presented two claims to the employment tribunal. The first contained complaints of ordinary unfair dismissal and automatic unfair dismissal for a reason related to pregnancy. The second contained complaints of victimisation under the Equality Act 2010. The complaints and issues were set out in the record of a private preliminary hearing held on 30 November 2021.[4]The claimant made an application at the start of this hearing to amend the part of the list of issues relating to the complaint of automatic unfair dismissal. However, the application was not pursued after the Tribunal pointed out that the amendment sought was based on law which was not in force at the relevant time.[5]The parties then agreed that the complaints and issues remained the same as recorded at the preliminary hearing.[6]After evidence and before oral closing submissions, the Tribunal raised with the parties whether the respondent wished to argue, as appeared might be the case from some of the respondent’s cross examination and parts of their written submissions, that the allegations relied on as protected acts were false and made in bad faith, so were not protected acts. This was not an issue set out in the list of issues. Ms O’Sullivan said the respondent did want to run this argument. The claimant did not object to the list of complaints and issues being amended to include this issue. By agreement, the issues relevant to victimisation were amended. The updated amended list of complaints and issues is set out in the Annex to these reasons.
Evidence
[7]We had a bundle of documents of 318 pages but, on the first day of the hearing, Ms O’Sullivan told us that she had not realised this bundle was different to the one agreed for a previously listed hearing and that some documents were missing. We, therefore, did not start hearing evidence until the second day so that Ms O’Sullivan could prepare for the hearing, using the new bundle, and supply missing documents. A number of documents were sent at different times through the hearing which were then collated into a 22 page supplementary bundle. References to pages in the main bundle are referred to as B[page number] and in the Supplementary Bundle to SB[page number].[8]In addition, on day three, during Karly Grainger’s evidence, the Judge asked the respondent to supply an unredacted copy of B207 since it appeared that the number of names redacted did not correspond to the number of people Karly Grainger gave evidence as having been selected for redundancy. The unredacted copy of this document was supplied on the morning of day four, while the Tribunal was reading written submissions from the parties. This showed that the numbers selected for redundancy was nine rather than the eight we had been told in Karly Grainger’s evidence. The Tribunal then made an order that an unredacted copy of the list of eighty-five employees considered for redundancy and the document which appeared, amongst other places, at SB19 to 21, should be provided. This was provided shortly before the parties were due to make oral closing submissions. Time was allowed, before oral submissions, for the Tribunal and parties to read and consider the unredacted documents and for the parties to consider their arguments in relation to the amended victimisation issue.[9]We heard evidence from the claimant and for the respondent from Karly Grainger, Business and Finance Manager, Nicola Fleury, Founding Director and CEO of the respondent and Gemma Fletcher, who is now Group Area Manager but, at relevant times, was manager of the nursery at Media Centre where the claimant worked and the claimant’s line manager. We had written statements for all of the witnesses.[10]The witness statements for Karly Grainger and Nicola Fleury were very lengthy but unfortunately, and perhaps surprisingly, omitted much of the basic information the Tribunal needed about the redundancy exercise. We obtained this information from the claimant’s counsel’s cross examination of the respondent’s witnesses. However, there were then disparities between this oral evidence and the unredacted documents subsequently provided.[11]We were very concerned by the disparity between the evidence given to us by the respondent’s witnesses in oral evidence about the redundancy process and the information that was revealed in the unredacted documents. We do not consider that we have had a satisfactory explanation for the disparities. It is possible that the respondent believed (as suggested in Ms O’Sullivan’s closing submissions), albeit incorrectly, that GDPR required them to redact the documents at B207 SB19-21. There is an exemption for documents provided for the purposes of litigation. We have not been told that the claimant, in preparation for this hearing, sought production of unredacted versions of these documents. The lack of legal representation does not provide an explanation or excuse for the respondent providing evidence which is inconsistent with the unredacted documents which were in their possession. It does not require legal expertise to give an honest account of what the respondent did in relation to the selection of employees for redundancy, consistent with relevant documents in their possession.[12]Paul Fleury, joint owner of the business with Nicola Fleury, his wife, did not give evidence at this hearing although he had been involved in the relevant events and was the author of some of the correspondence. Ms Dannreuther invited us to draw adverse inferences from his non-attendance as a witness. Since she had not questioned the respondent’s witnesses as to the reasons for his absence, and because we consider that Nicola Fleury was likely to have been involved in any decisions made by Paul Fleury so was in a position to give evidence about these, we do not feel able to draw any adverse inferences from his absence as a witness.[13]We also say something on the subject of interpretation since the respondent has, in correspondence and at this hearing, sought to make much of this. The claimant’s first language is Spanish, although the claimant speaks very good English and, indeed, does some translating and interpretation work herself. The claimant requested an interpreter for when she was giving evidence at this hearing. The respondent invited us to draw adverse inferences as to the claimant’s credibility from the claimant requesting an interpreter. We declined to do so. It is generally understood that the level of English required in Tribunal proceedings is higher than that required in everyday life. Also, when under stress, such as when giving evidence in the Tribunal, people’s ability to process, particularly when functioning in a language which is not their first language, is adversely affected. Consequently, it is not unusual for someone who speaks even what appears to be fluent English to request an interpreter for a hearing. The respondent was referred, in a letter from the Tribunal dated 2 August 2024, granting the claimant’s application for an interpreter, to the Equal Treatment Bench Book, specifically chapter 8 on the use of interpreters in legal proceedings. Despite this, the respondent continued, up to and during closing submissions, to suggest to the Tribunal that there was something disingenuous in the claimant’s request for an interpreter.[14]In accordance with the claimant’s request, the claimant began to give her evidence with all the questions and answers being interpreted. Unfortunately, the quality of the interpretation was not as good as should have been the case and the respondent’s representative said, fairly, after a short while, that she was confused by the answers given by interpretation. After a break to take instructions, the claimant decided that she would continue giving her evidence in English, without questions and answers being interpreted, but with the interpreter at hand to assist if needed.
Facts
[15]The respondent is an early years childcare provider with a number of nurseries in the North West. These nurseries include a nursery at Media City in Salford.[16]The claimant began work with the respondent as a Lunch Time Cover Assistant on 20 March 2018. At relevant times, the claimant worked at the Media Centre nursery where Gemma Fletcher was manager although, just before the pandemic, there was a possibility that she would have moved nurseries on her return from sick leave.[17]On 16 January 2019, the claimant was given a twelve months’ written warning for breach of policies and procedures resulting from accidentally dropping diabetes medicine on the pre-school floor. However, only shortly afterwards, on 25 January 2019, we note that the claimant was rated as outstanding in an appraisal given by Gemma Fletcher.[18]On 1 September 2019, the claimant changed her job with the respondent to become a Childcare Practitioner at Media City.[19]In the period 20 January to 23 March 2020, the claimant provided a series of sick notes giving stress related problems as the reason for her absence.[20]As we all now know, there was a global pandemic due to the Covid 19 virus and the first national lockdown was announced on 23 March 2020. The respondent’s business closed shortly before or on 24 March 2020. All the respondent’s employees, including the claimant, were put on furlough at that time.[21]On 2 May 2020, the respondent told its employees of their intention to re-open the business and that employees were needed to return to work on 1 June.[22]We accept that this was an extremely difficult time for businesses and particularly the type of business operated by the respondent. We accept that there were real and serious concerns about whether the business would survive.[23]On 3 May 2020, there was a management meeting about possible redundancies held by Nicola and Paul Fleury and Karly Grainger. They decided to get advice from Croner’s, an employment consultancy, about the redundancy process. They decided to offer voluntary redundancy first. They decided on the following selection criteria: qualifications (if staff had no qualifications); length of service; and disciplinaries. We accept that the respondent meant, by saying unqualified, not having any of the qualifications recognised by the Department of Education for the purposes of qualified staff to child ratios in early years settings.[24]At the time the claimant began working for the respondent, she had a certificate of unit credit towards a level 2 award in support work in schools which she had obtained in November 2014. The claimant’s qualification was not one which was recognised by the Department of Education for the purposes of the early years staff to children ratio. Whilst working with the respondent, the claimant did start working towards her level 2 early years foundation stage qualification, but she did not achieve this until after she had left the respondent in April 2021.[25]There was a further management meeting on 12 May 2020 with the same attendees. They decided to email staff notifying them of possible redundancies and asking whether anyone would like to take voluntary redundancy. They identified the same selection criteria as at the previous meeting. Karly Grainger was to produce a list of employees and their start dates with qualifications and any disciplinaries by 20 May.[26]A list of employees for the purposes of redundancy selection was duly produced listing eighty-five employees, ten of whom were said to be unqualified. The claimant was one of those designated as unqualified. By this time, the respondent had dropped the criteria of disciplinaries for their selection process since there was no column on this list for disciplinaries. This is the document which appeared at SB19-21 in a redacted form and was provided to the Tribunal and the claimant in an unredacted form on the fourth day of the hearing, in compliance with an order made by the Tribunal. The original list had blue highlighting showing some (but not all) of the employees with the shortest service. The original list also had pink highlighting for the employees classified as “unqualified”. Four employees were highlighted in yellow. These were said to be the four employees who resigned before the redundancy selection process. During the course of preparation for this hearing, we were told by Karly Grainger, that the red highlighting was adding to show which employees were pregnant at the time of the redundancy selection process. The claimant was the only employee designated as “unqualified” who was pregnant at the time. There were three other employees, who were pregnant at the time. These three employees all held relevant qualifications, unlike the claimant.[27]On 16 May 2020 the claimant wrote to Nicola Fleury saying she was concerned about returning to work. She said she was high risk with diabetes and that her son’s school would not be opening. She asked to return to work when it was a bit safer. Nicola Fleury responded, asking her to confirm her diabetes type. On 18 May 2020, the claimant sent an email to Nicola Fleury telling her that she had discovered that she was pregnant and saying that her diabetes type was type 2. The next day, on 19 May, the claimant sent an email to Matthew Dickinson, a trade union representative, saying she was scared of going back to work because of the Covid situation.[28]The claimant obtained two letters from her GP on 19 and 27 May 2020. The first letter said that the claimant was at moderate risk due to diabetes, anaemia, stress and pregnancy. The second letter said that the claimant was in a high risk vulnerable group for Covid infection so was unable to go to her workplace in childcare because of pregnancy, diabetes, stress and some Arabic Middle Eastern heritage. We do not know exactly when those letters were sent to Nicola Fleury but we find, because of subsequent events, that it must have been shortly after 27 May 2020, the date of the second letter.[29]On 1 June 2020, the claimant was placed on unpaid leave. The claimant was no longer on furlough because the respondent understood that she was not eligible for furlough payments. The claimant had no sick note so the respondent did not pay the claimant any sick pay.[30]When the nursery at Media Centre re-opened at the beginning of June 2020, only about fourteen children attended out of the normal number of around eighty. The respondent did not need the normal full complement of staff because of the low number of children attending. The respondent operated a rota system with some staff coming into work and others being called in when some staff got sick. They operated a bubble system for each nursery so staff could not be moved around sites and supply staff could not cover for absent employees on any site in the way that they could have done pre-pandemic.[31]Four nursery workers resigned after the announcement of the reopening of the business and left the respondent’s employment. We find this was most likely before the announcement of the redundancies since the notice of 8 June does not invite voluntary redundancies as had previously been indicated, at the management meetings, would be the case.[32]On 5 June 2020 there was a further management meeting with the same attendees. It is recorded that they had taken advice from Croners and letters were to be sent to all employees on 8 June informing them that redundancies would take place. They did not refer to inviting employees to apply for voluntary redundancy.[33]On 8 June 2020 an announcement of redundancies was sent to all employees telling them that they were intending to make between ten and fifteen nursery workers redundant.[34]On 10 June 2020 there was a further management meeting with the same attendees. This set out the names of nine employees selected for redundancy. In Karly Grainger’s evidence, the respondent had asserted that eight employees were selected for redundancy. However, the unredacted copy of the document, obtained after evidence had finished, shows that it was, in fact, nine employees who were selected for redundancy. The minutes still refer to disciplinary issues amongst the selection criteria but we find that this criterion had, by this time, been dropped since it was not shown on the list of employees. The minutes record, and Karly Grainger gave oral evidence, that all those selected for redundancy had under two years’ service and were unqualified, except the claimant who had more than two years’ service. However, the unredacted documents show us that one unqualified employee with less than two years’ service was not selected for redundancy and that one employee with a Level 3 qualification but under two years’ service was selected for redundancy. This was inconsistent with the evidence which had been given by Karly Grainger on behalf of the respondent. The information given by Ms O’Sullivan about those two employees in submissions is not evidence and we cannot take it into account in making our findings of fact.[35]There were other unqualified employees who were not selected for redundancy but these had more service than the claimant. One of them only had one more month’s service than the claimant.[36]The minutes record that the respondent was to arrange a first consultation meeting with the claimant. We find, based on the evidence of Karly Grainger, that they were not having consultation meetings with those who were selected but had under two years’ service. Nicola Fleury could not explain in evidence why they had decided to make eight (although when we saw the unredacted documents, it turned out to be nine) people redundant at that time rather than seven or ten. The claimant was the only unqualified nursery worker made redundant who had more than two years’ service. The claimant was the only one of those made redundant who was pregnant at the time. There were other pregnant employees but they were not unqualified and they were not selected for redundancy.[37]By a letter dated 11 June but which was sent on 12 June 2020, the claimant was invited to a consultation meeting on 15 June. The respondent had, at this point, already selected the claimant for redundancy. Any consultation with her would not be including consultation about the criteria to be used for selection.[38]On 12 June 2020 the employees with under two years’ service who had been selected for redundancy left the respondent’s employment.[39]On 12 June 2020 the claimant replied to the respondent to say that she was not well and could they share the meeting in writing. She did not ask for a postponement of the meeting.[40]On 15 June 2020, a consultation meeting took place with Nicola Fleury, Paul Fleury and Carly Granger. The claimant did not attend as she had said she could not attend. The minutes of this meeting state that the claimant had been selected for not holding a full or relevant qualification. It said there was no alternative work available for her. It recorded that they would arrange a second consultation meeting on 22 June to discuss the minutes and provide a response and raise any questions. We accept that there were no alternative roles available at this time which could have been offered to the claimant. There were few children attending the nursery at this time. Any other roles were already filled or not needed because of the low number of children and number of nursery staff, in the case of lunchtime cover. Supply staff were not needed because of the number of staff who could be called in and the bubble system which meant staff could not work in different nurseries.[41]Gemma Fletcher emailed Paul Fleury, asking what had happened at the consultation meeting. Paul Fleury replied on 15 June to Gemma Fletcher saying that the respondent was making the claimant redundant on the basis that she was unqualified.[42]Nicola Fleury wrote to the claimant on 15 June informing the claimant that she was selected for redundancy due to being in an unqualified position. It is clear from Nicola Fleury’s second email of 15 June that there must have been an intervening email from the claimant but we have not been shown this. From the contents of Nicola Fleury’s second email of 15 June, it appears that the claimant’s email which is missing took issue with being categorised as unqualified.[43]On 15 June 2020 Nicola Fleurry emailed the claimant saying that her selection was due to being in an unqualified position. She referred to making arrangements for another meeting on 29 June. The email also refers to comments by the claimant in an email which we have not seen and refers to the claimant challenging that she was unqualified.[44]On or around 16 June 2020, Matthew Dickinson, the claimant’s trade union representative, sent to the respondent a grievance on the claimant’s behalf. This grievance was about alleged underpayment of wages; pregnancy discrimination in relation to redundancy; and alleged bullying by Gemma Fletcher. The claimant also took issue with being described as “unqualified”. The grievance did not include any allegation of race discrimination.[45]A grievance hearing was then held by zoom on 24 June 2020. The claimant attended with Matthew Dickinson, her trade union representative, and the respondent was represented by Nicola Fleury and Karly Grainger. If there were minutes of this meeting, as Karly Grainger told us that there were, we have not been shown them.[46]The consultation process in the redundancy was put on hold because of the grievance and, on 29 June 2020, Karly Grainger emailed the claimant to say that, due to the ongoing grievance, they would reschedule the second consultation meeting and confirm a new date that week. No further consultation meeting was, in fact, ever arranged.[47]On 7 July 2020, the respondent provided the claimant with a grievance outcome letter. On the basis of the evidence of Karly Grainger, the decision to dismiss the grievance was taken by Karly Grainger but endorsed by Nicola Fleury. The outcome letter said that the claimant was not level 2 qualified so the reason for redundancy was valid. It said they found no evidence of discrimination because of pregnancy.[48]The claimant appealed against the outcome of the grievance. She said, in this appeal, that she was qualified with a level 2 award. She asserted that she was being discriminated against because she was pregnant and shielding and had to stay off work.[49]A grievance appeal hearing was held on 23 July 2020 with Lydia Fitzpatrick, a manager of one of the respondent’s other nurseries, and the claimant and Matthew Dickinson. In this hearing, Lydia Fitzpatrick commented that the claimant’s qualification was not an approved one and that the claimant was not a qualified practitioner. She said she found no evidence of discrimination because of pregnancy.[50]The outcome of the grievance appeal hearing was confirmed in a letter dated 4 August 2020. This included the dismissal of the assertion that the claimant had been dismissed because of pregnancy. The letter confirmed that the claimant was not level 2 qualified and that the qualification she had was not one recognised by the Department of Education as being full and relevant in the early years.[51]On 9 September 2020, Matthew Dickinson wrote to Paul Fleury asserting that the respondent had forced the claimant onto unpaid leave and that the respondent had discriminated against the claimant because she needed to follow strict social distancing. He urged the respondent to compensate the claimant for some of the time she had had off because of following government guidance.[52]On 30 September 2020, Paul Fleury sent an email to Matthew Dickinson, copied to the claimant, replying to Matthew Dickinson’s email of 9 September. He asserted that Matthew Dickinson had been saying that they should pay the claimant off and Paul Fleury wrote that the claimant’s finish day was that day, 30 September 2020.[53]The claimant engaged in early conciliation with ACAS in the period 7 – 8 October 2020.[54]On 14 October 2020, Mr Dickinson wrote to Paul Fleury in reply to Paul Fleury’s email of 9 September. He denied that he had suggested paying the claimant off but suggested the claimant should receive what he thought the claimant was entitled to. He also asked Mr Fleury how they came to the decision about the claimant’s final day and was it redundancy. He wrote that, if so, the claimant was entitled to redundancy pay. If there was a reply from Paul Fleury to this letter, we have not seen it.[55]On 5 November 2020, the claimant emailed Paul Fleury saying she had received her payslip but no pay and asked when it would be received. On 25 November 2020 Paul Fleury emailed the claimant saying that the amount had only just been calculated so they hadn’t been able to pay it but he needed to know whether she accepted that the figure was correct. He wrote that redundancy pay would be paid in full and final settlement of all her claims. The claimant replied the same day to say that she accepted her redundancy payment.[56]On 26 November 2020 Paul Fleurry sent a further email to the claimant saying that he required her acceptance that £959.20 was in full and final settlement of her employment at the respondent and that no further claims would be made. He wrote that, once he received this, he would make payment.[57]The claimant presented her first claim to the Employment Tribunal on 24 December 2020. The claimant was not represented at the time. She does not name a representative on her claim form. We do not know whether Matthew Dickinson assisted the claimant at all in her drafting, although her statement in box 8.2 of the form that she was seeking advice from her trade union and saying she would provide further details of her claim in 21 days would suggest that she had not had advice from him. The complaints included in this claim were unfair dismissal, pregnancy/maternity discrimination, race discrimination, entitlement to a statutory redundancy payment which has still not been paid at this point and other money claims. Subsequently the pregnancy/maternity discrimination was identified for the claimant as being a complaint of unfair dismissal under Section 99 of the Employment Rights Act and not an Equality Act complaint but this was not clear from the claim form. The only reference to race discrimination in the particulars of claim was in the statement: “I believe that I have been subject to bullying, harassment and racial discrimination during my employment at KidsRUs.” No details of the alleged harassment related to race were given. The contents of the claim are not a public document, they are seen only by the parties and the Tribunal.[58]When the claimant was asked in cross examination why she thought she had been discriminated against because of her race, the claimant referred to being Muslim and to some things which had happened which she thought were for this reason. We find that the claimant thought that she was the only Muslim member of staff at Media City nursery at the time. We find that the claimant was genuine in believing that what she considered to be discrimination against her as a Muslim was race discrimination, although case law (of which neither the claimant, nor Ms O’Sullivan, who was cross examining her, were aware) is against her in finding that Muslims are not a racial group. Because the claimant withdrew her complaints of race discrimination long before this hearing, the Tribunal has not had to decide whether there was, or was not, any race discrimination against the claimant. It is possible that whatever treatment the claimant had in mind as being because of or related to race when she presented her claim was, in fact, nothing to do with race. However, the respondent has not satisfied us that the claimant knew, when she presented the claim, that she was making false allegations of race discrimination (if, in fact, the allegations were false).[59]We find that the claimant was genuine when she first presented her grievance and in her first claim to the Tribunal in believing that her selection for redundancy was related to her pregnancy. She disputed her categorisation as unqualified. The sequence of events, with notification of redundancy following her announcing her pregnancy and saying she could not return to work because of pregnancy and other conditions, made her think that her selection was related to pregnancy. The claimant was not aware, not being a member of the management team, of the management decisions about making redundancies, before the claimant informed the respondent of her pregnancy.[60]The respondent presented a response to the first claim on 12 February 2021. Croners were named as the respondent’s representative and it appears likely, from the legal way the grounds of resistance were drafted, that Croners prepared these. The response included generalised denials of the claims brought. It gave no details of the numbers which had been dismissed by way of redundancy or the selection criteria used in the redundancy exercise. The response accepted that redundancy pay had not been paid at the material time but asserted that all sums due had now been paid. Indeed, on the same day that the response was presented, the redundancy payment was made to the claimant.[61]In April 2021 the claimant received her Level 2 award in early years childcare.[62]On 10 June 2021, Nicola Fleury wrote to the claimant with what was stated to be a notice of intention to issue legal proceedings against the claimant. According to the evidence of Nicola Fleury, this was sent on the basis of legal advice received. Whether this was, in fact, the case is not something we need to decide. The letter contains allegations that the claimant sought to mislead and/or defraud the respondent in relation to presenting herself as a trade union member and Matthew Dickinson as a trade union representative and having him accompany her to meetings. The letter says nothing about the claimant’s allegations of discrimination. The letter does not threaten legal action for defamation in relation to allegations including race discrimination as is suggested by Nicola Fleury’s witness statement at paragraphs 40 to 41. Nicola Fleury’s evidence makes it clear that at least part of the motivation for sending the letter was, however, because the claimant had made allegations of race discrimination as well as unlawful deduction from wages. Nicola Fleury wrote in her witness statement that the claims of race discrimination and unlawful deduction of wages “essentially labels me & my Organisation as Racists & Thieves by default, when we are neither”.[63]On 23 June 2021 Nicola Fleury sent a complaint to UNISON, asserting that Matthew Dickinson was not a qualified trade union representative and had been acting for individuals who were not even members of UNISON. By an undated letter from the UNISON Branch Secretary in response to this letter, they informed the respondent that Matthew Dickinson was employed by UNISON as a Local Organiser and was entitled to represent members.[64]On 1 July 2021 the respondent made an application to the Tribunal to strike out the claimant’s complaints. In that letter the respondent said they were no longer represented by Croners and that any correspondence in future should be sent to Nicola Fleury.[65]On 20 July 2021, UNISON sent a further letter to the respondent in response to an email of 6 July from the respondent, which we do not appear to have seen, confirming that Matthew Dickinson was entitled to represent members and a trade union official when he represented the claimant.[66]Gemma Fletcher, on behalf of the respondent, refused to supply a reference for the claimant to Supply Desk, an employment agency, possibly multiple times. The respondent says there were no requests from other employers or agencies. The claimant gave generalised evidence about other requests for references without specifying the employers or agencies. The claimant has not satisfied us that the respondent received requests and refused to give references to anyone other than Supply Desk.[67]Gemma Fletcher’s witness statement did not address why she did not give the reference. However, Karly Grainger did give evidence about this, although it is not clear whether she knew about the reference request at the time it was made and refused. Karly Grainger’s witness statement, at paragraph 76, is clear that the allegation of discrimination was a reason for refusing a reference. Gemma Fletcher’s oral evidence was consistent with Karly Grainger’s evidence in this respect. The part of the explanation later provided in the respondent’s response to the second Tribunal claim which referred to data protection being the reason for not providing the reference, was not a reason given in evidence by the respondent for not providing a reference.[68]The claimant’s second claim was presented to the Tribunal on 8 October 2021. By this time the claimant was represented by Thompsons, solicitors. The claimant alleged post-employment victimisation in relation to the refusal of references and the threat of civil legal action. The protected acts relied upon were the grievance and the first Tribunal claim.[69]On 10 November 2021, the respondent presented a response to the second claim. This was signed by Paul Fleury. This response fails to address why the respondent made the threat of civil action. The response accepted that the respondent had refrained from completing or responding to any employment reference requests in respect of the claimant from prospective future employers. It asserted that this was so as not to breach any data protection legislation. As previously noted, this is not an explanation which was given in evidence by the respondent’s witnesses. The response asserts that the claimant has made “various baseless, fabricated & fictious claims to the ET, which were not only recklessly vicious, vexatious & retaliatory, but that were crucially, allegations made by the Claimant without absolutely no supporting evidence whatsoever.” The respondent also wrote: “It is highly likely & probable that the Claimant & her very own conduct & behaviour to date as an Employee that may have indeed rendered her being in the position of experiencing difficulties acquiring alternative employment & not due to the actions, and/or inactions of the Respondent.”[70]On 30 November 2021 there was a Preliminary Hearing for the purposes of case management in both cases. At this the claimant withdrew her race discrimination complaint, the complaint about entitlement to a statutory redundancy payment, since it had by then been paid, albeit late, her claim for notice pay, holiday pay and unauthorised deduction from wages.[71]At the private preliminary hearing, the respondent’s various strike out applications, including the one dated 1 July 2021 were considered by Employment Judge Slater. As noted at paragraph (17) of the record of that hearing, some of the applications related to complaints which had, by that hearing, been withdrawn. After clarification of the complaints and issues which remained, the judge decided that evidence needed to be heard to determine the merits of the complaints and this was not, therefore, a suitable case to list a public preliminary hearing to decide whether the complaints had no reasonable prospect of success and, therefore, whether they should be struck out, or whether they had little reasonable prospect of success and a deposit ordered to be paid as a condition of continuing with any particular complaint. The judge wrote that the evidence needed to be heard and the merits considered at a final hearing. Submissions[72]Both parties prepared written submissions. We do not seek to summarise these since they can be read, if required. The parties read each other’s submissions and the Tribunal took time to read the written submissions before hearing oral submissions.[73]The parties supplied their written submissions to the Tribunal and each other by 9.30 a.m. on the fourth day of hearing. We had intended to hear oral submissions in the morning of the fourth day of hearing. However, after a discussion about the amendment to the issues relating to victimisation, and the production of the unredacted B207 and SB19-21, we adjourned at 11.35 until 1.30 p.m. to allow the parties time to consider their oral submissions in relation to these matters.[74]We reconvened at 1.30 p.m. but adjourned again, at Ms O’Sullivan’s request, to give her additional reading time, before reconvening to hear oral submissions at 2.15 p.m.[75]Both parties were limited to a maximum of 30 minutes each for their oral submissions. After the claimant’s oral submissions, we gave Ms O’Sullivan a 10 minute break before she made her oral submissions on behalf of the respondent. During Ms O’Sullivan’s oral submissions, the judge informed Ms O’Sullivan that the Tribunal could not take account of new information provided in submissions, which had not been given in evidence. We added on time to Ms O’Sullivan’s time allocation, to take account of the time spent in relation to this intervention. The claimant’s submissions[76]We summarise the oral submissions made by Ms Dannreuther on behalf of the claimant as follows.[77]The contents of the unredacted documents were shocking. The respondent had said there were two selection criteria: qualifications and length of service. By cross checking the documents, it was apparent that of those made compulsorily redundant, one was a level 3 qualified person (AT). One unqualified (NT) with less than 2 years’ service was not made redundant. This made no sense on the respondent’s case and it raises a question as to whether the respondent has given honest evidence. The fact that the unqualified employee with less service than the claimant was kept on shows the claimant’s selection for redundancy was not based solely on qualifications and length of service. If it had been, the claimant would have been kept on and NT dismissed. The process was entirely arbitrary. The claimant says her selection can only have been based on likes or dislikes or because of her inability to work at the time, due to pregnancy/diabetes and that she would be taking maternity leave in the future. Mr Fleury’s failure to attend to give evidence was suspicious. There was no evidence why the claimant was selected and two unqualified employees with longer service were not. It would have made commercial sense if the group selected all had less than 2 years’ service. In circumstances where the only person selected with more than 2 years’ service was the claimant and a level 3 qualified person was also selected, there was no evidence of appropriate selection criteria being properly applied.[78]In relation to victimisation, the claimant had not waivered from the time of her grievance until today in maintaining her allegation that her selection for redundancy was related to pregnancy. Clearly, from her oral evidence, she believed this. There was also convincing evidence that she thought she had been discriminated against on grounds of her race. She brought her claims initially as a litigant in person. Nothing should be taken from framing her race claims on the basis of being a Muslim. She was not required to understand the nuanced legal differences between race and religion. For there to be a protected act, it is irrelevant whether the alleged discrimination happened or not. If the allegations turn out to be false, the Tribunal has to consider whether the allegations were made in bad faith. In SAAD v Southampton University Hospitals NHS Trust UKEAT/0276/17, HHJ Eady QC said that the bad faith requirement, absent other context, had a core meaning of dishonesty. There was no evidence that the claimant made the allegations dishonestly. The claimant said she felt discriminated against because she was Muslim. There was nothing to suggest she was not genuine in her belief. The claimant dropped the complaint of race discrimination. This was not indicative of dishonesty. The Tribunal was not in a position to make a finding that the allegations of race discrimination were false. The respondent’s submissions[79]We summarise the oral submissions of Ms O’Sullivan as follows. We do not record new information, not heard in evidence, which Ms O’Sullivan introduced in an attempt to explain the information revealed by the unredacted documents. As was explained by the judge during Ms O’Sullivan’s submissions, the Tribunal cannot take account of new factual information provided during submissions; the Tribunal must base its findings of fact on the witness and documentary evidence.[80]The respondent submitted that the claimant had acted in bad faith throughout; her grievance was made in bad faith with a vexatious and retaliatory mindset. The claimant was absent from work January to April 2020. She was proficient at obtaining fit notes from her GP. She was aware these were required to get SSP. When employees were put on furlough, the claimant calculated it was more beneficial to her to go on furlough than sick leave. This was in bad faith and disingenuous. The claimant resisted submitting more fit notes for financial gain.[81]Ms O’Sullivan said it was nonsensical to suggest that, if it had not been for the redundancy process, the claimant would still have been employed. The redundancy process happened because of the pandemic. If the claimant had been a fully qualified level 2, she would not have been selected for redundancy.[82]All the allegations against the respondent were made in bad faith. They were vexatious and retaliatory, because the respondent would not continue with furlough. It was abhorrent to the respondent, as an equal opportunities employer, to be unfairly and wrongly labelled perpetrators of race discrimination, religious discrimination and pregnancy/maternity discrimination. This contributed to the pre-action notification. It was sent by Nicola Fleury to protect her business and professional reputation. The claimant has been master of her own disaster in being in receipt of the pre-action protocol. If she had not made her allegations, the respondent would not have needed to instigate this.[83]The claimant’s grievance, immediately after she was told her role was redundant, was a further example of bad faith. This was to garner more holiday pay or service. The respondent acted reasonably and fairly in its process. They temporarily suspended the redundancy process to exhaust the grievance process. This resulted in the claimant being in employment for an extra 15 weeks. All the others left on 12 June 2020.[84]The claimant made it known throughout her employment that she did interpretation/translation work. She is proficient in the English language. She made a disingenuous application for an interpreter.[85]The claim form was vague. The claimant was given multiple bites of the cherry. She casually withdrew her complaint of race discrimination. This was done in bad faith.[86]The information had been redacted because of GDPR. There was no sinister reason for this.
Law
[87]The law in relation to unfair dismissal is contained in the Employment Rights Act 1996 (the 1996 Act). Section 94(1) of the 1996 Act provides that an employee has the right not to be unfairly dismissed by his employer.[88]Fairness or unfairness of the dismissal is determined by application of section 98 of the 1996 Act. Section 98(1) of the 1996 Act provides that in determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason for dismissal and if more than one, the principal one and that it is a reason falling within section 98(2) of the 1996 Act or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. Redundancy is one of the potentially fair reasons for dismissal.[89]Section 98(4) provides that where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances, including the size and administrative resources of the employer's undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and this shall be determined in accordance with equity and the substantial merits of the case. In considering the reasonableness or unreasonableness of a dismissal, the tribunal must consider whether the decision to dismiss was within the band or range of reasonable responses.[90]Williams v Compair Maxam Ltd [1982] IRLR 83 EAT set out various factors to be considered in determining whether a dismissal for reason of redundancy was fair or unfair. These factors included establishing criteria for selection which, so far as possible, can be objectively checked against such things as attendance records, efficiency at the job, experience, or length of service; and the fair selection in accordance with these criteria. The Court of Appeal in British Aerospace v Green [1995] IRLR 433 said that, for a respondent to be held to have acted reasonably, it was sufficient for the employer to show that he had set up a good system of selection, that it was fairly administered and that ordinarily there was no need for the employer to justify all the assessments on which the selection for redundancy was based.[91]Section 99 Employment Rights Act 1996 (the 1996 Act) read with regulation 20(2)- (3) of the Maternity and Parental Leave etc Regulations 1999, as they applied at the relevant time for this case provide: “(2) An employee who is dismissed shall also be regarded for the purposes of Part X of the 1996 Act as unfairly dismissed if –(a) The reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant;(b) It is shown that the circumstances constituting the redundancy applied equally to one or more employees in the same undertaking who held positions similar to that held by the employee and who have not been dismissed by the employer, and(c) It is shown that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was a reason of a kind specified in paragraph (3). (3) The kinds of reasons referred to in paragraphs (1) and (2) are reasons connected with – (a) the pregnancy of the employee. …….”[92]The provisions relating to victimisation are contained in section 27 of the Equality Act 2010. This provides: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.”[93]As noted in Ms Dannreuther’s oral submissions, In SAAD v Southampton University Hospitals NHS Trust UKEAT/0276/17, HHJ Eady QC said that the bad faith requirement in a victimisation complaint, absent other context, had a core meaning of dishonesty.[94]Burden of proof provisions relating to complaints brought under the Equality Act 2010 are set out in section 136 of that Act. This provides. “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.” Conclusions “Ordinary” unfair dismissal[95]It was accepted by the claimant that the reason for dismissal was the potentially fair reason of redundancy. This was, we conclude, a correct concession based on the information before us. As we have recognised in our findings of fact, the business was in a very difficult position during the pandemic. Their need for nursery workers was reduced. Even when the nurseries reopened, the number of children attending was much lower than pre-pandemic. There was no certainty as to when the business would get back to full operation or even whether it would survive.[96]We must consider whether the decision to dismiss the claimant was fair in all the circumstances, which include the extraordinary circumstances of the time.[97]We conclude that there were serious flaws in the consultation process. Fair consultation includes consultation when the proposals are still at a formative stage. The decision as to the selection criteria to apply and the selection of the claimant for redundancy had been made before the claimant was invited to the first consultation meeting. The only possible thing left to consult about was alternative employment although, as we have found, there were, in fact, no alternative jobs available given the circumstances. The claimant should have been invited for consultation before the respondent took its final decision on the criteria to be used and her selection in accordance with those criteria. The promised second consultation meeting, put on hold whilst the respondent dealt with the claimant’s grievance and appeal, was never rearranged. Instead, Paul Fleury informed the claimant, via an email to her trade union representative on 30 September 2020, which was copied to the claimant, that the claimant’s employment was ending that day.[98]We do not criticise the respondent for proceeding with the meeting on 15 June where the claimant had asked them to do so in writing when she said she was unable to attend due to illness. The claimant had not asked for a postponement of the meeting. We consider it was reasonable in the circumstances for the respondent to comply with the claimant’s wishes by going ahead.[99]We consider that the respondent acted reasonably in considering a pool of nursery workers from which to select those to be made redundant.[100]The chosen criteria were whether the employee was unqualified, which we have accepted meant not holding a qualification recognised by the Department of Education for the purposes of the staff/child ratio, and also length of service. The designation of “unqualified” caused confusion for the claimant who held some qualification, although not of the type required. A better explanation from the start might have avoided some of the confusion and suspicion of the process which followed. We were told and accept that the criterion of disciplinary record was not used, although this had been referred to in the earlier discussions. We conclude that the criteria of unqualified and length of service were reasonable criteria to adopt.[101]The application of the criteria could have been reasonable if, as we were told in evidence by the respondent’s witnesses, the respondent had selected the number of employees they considered they needed to make redundant from the unqualified employees taking those with less than two years’ service, and then those with more than two years’ service but the shorter service. However, the production of the unredacted versions B207 and SB19-21 show that the selection was not done entirely in accordance with this method. One unqualified employee with less than two years’ service was not dismissed whereas the claimant, with more than two years’ service, was dismissed. The respondent gave no evidence which could satisfy us that the criteria were reasonably applied, given this anomaly. The new information given by Ms O’Sullivan in closing submissions, seeking to explain this anomaly, is not evidence which we can take account of.[102]Nicola Fleury’s inability to explain why they had decided on the particular number of redundancies which they did caused us some concern. The respondent had initially said they were looking to make between ten and fifteen nursery workers redundant. The lower end of that range could have been achieved without dismissing the claimant after four people resigned and they dismissed unqualified people with less than two years’ service. However, an employer has a broad discretion in making business decisions, including the number of people to make redundant, so we do not rely on this failure of explanation as a factor in concluding that the process was unfair.[103]We do not consider that there was alternative employment which could have been offered to the claimant.[104]Because of the flaws we have identified in the consultation process and the application of the selection criteria, we conclude that the claimant’s dismissal was not within the band of reasonable responses. The claimant’s complaint of ordinary unfair dismissal succeeds for these reasons. “Automatic” unfair dismissal – section 99 Employment Rights Act 1996 and regulation 20 Maternity and Parental Leave Regulations 1999[105]The claimant accepts, and we conclude, that the reason for dismissal was redundancy. The question for us to decide is whether the reason or principal reason for selection for redundancy was a reason connected with the claimant’s pregnancy.[106]There are factors which could suggest an inference should be drawn that the claimant’s selection was related to her pregnancy. These are as follows. 106.1. The claimant was advised by her GP not to attend work because of her vulnerability due to the pandemic due to a combination of her pregnancy and other factors. This meant that she was not available to work in the same way as other nursery workers as and when required. 106.2. The failure to explain in evidence why the claimant was selected for redundancy over an unqualified employee with less than two years’ service. 106.3. The respondent providing evidence which is inconsistent with the unredacted documents which were in their possession.[107]We do not consider that any inferences of selection because of pregnancy related reasons can be drawn from the failure of Paul Fleury to give evidence for the reasons given previously, from failures in consultation or the failure to offer alternative employment. By analogy with the approach taken in discrimination cases, unreasonable treatment by itself, which could include failures in consultation, is not enough to prove facts from which an inference of pregnancy related discrimination can be drawn.[108]Against the factors which could point towards selection being because of pregnancy related reasons are the following. 108.1. Other nursery workers who were pregnant at the time were not selected for redundancy. 108.2. The respondent, with a predominantly female work force, has an established record of employees taking maternity leave and then returning to work. 108.3. Given the low number of children attending nursery at the time, the respondent did not need to have every nursery worker available to work all the time so there was not a compelling need for the claimant to return to work. 108.4. The respondent had moved the claimant onto unpaid leave so had no substantial costs associated with her ongoing employment. The issue about whether not paying the claimant was correct was not raised on the claimant’s behalf by her trade union representative until after the claimant’s selection for redundancy.[109]Weighing up these factors, we conclude that the reason or principal reason for the claimant’s selection for redundancy was not because of pregnancy related reasons. The complaint of automatic unfair dismissal, therefore, fails. Victimisation[110]We found that the claimant was genuine when she first presented her grievance and in her first claim to the Tribunal in believing that her selection for redundancy was related to her pregnancy (see paragraph 59).[111]We found that the claimant was genuine in believing that discrimination against her as a Muslim was race discrimination (see paragraph 58). We cannot reach a conclusion that her generalised allegations of race discrimination in her first claim were false, because the claims were withdrawn before they were clarified and this Tribunal has not had to decide any complaints of race discrimination. Whether or not the allegations of race discrimination were, in fact, not true, the respondent has not satisfied us that the claimant knew, when she presented the claim, that she was making false allegations of race discrimination. We are not satisfied that the claimant acted dishonestly in making her allegations of race discrimination.[112]We conclude that the claimant did not make her allegations of pregnancy discrimination and race discrimination in bad faith. We conclude that she did protected acts when raising her grievance, which included an allegation of unlawful pregnancy maternity discrimination, and presenting her first claim to the Tribunal, which included an allegation of race discrimination.[113]The respondent’s witnesses gave evidence, and we found, that they refused to respond to requests for references for the claimant from Supply Desk. On the basis of the respondent’s own evidence, we found that the reason they did so was, at least in part, because of the claimant making allegations of race discrimination. We conclude that the protected act of making an allegation of race discrimination was of sufficient weight in the reasons for the respondent refusing the reference for the refusal to be because the claimant had done a protected act. We conclude that the refusal was subjecting the claimant to a detriment because, without a reference, she was less able to obtain work in the childcare sector. We conclude, for these reasons, that the complaint of victimisation in relation to the refusal of a reference to Supply Desk is well founded.[114]Nicola Fleury’s evidence proves that the claimant’s protected act of making an allegation of race discrimination in her first Tribunal claim was of sufficient weight in the respondent’s reasons for making the threat of civil action, for us to conclude that the action was because of the claimant doing that protected act. Whilst the claimant has not given any specific evidence as to the effect on her of this threat, we use our own judicial knowledge to conclude that it was more likely than not to have caused her at least some worry and distress and, therefore, to have subjected her to a detriment. We conclude that the complaint of victimisation in relation to the threat of civil action is well founded.[1]I have undertaken a preliminary consideration of the respondent's application for reconsideration of the parts of the judgment finding that the complaint of ordinary unfair dismissal and the complaints of victimisation are well founded. That application is contained in a 14 page letter plus enclosures, attached to an email dated 9 October 2024. References in square brackets (e.g. [25]) are references to paragraph numbers from the reasons promulgated with the judgment. References to B[page number] and SB[page number] are to pages in the main hearing bundle and supplementary bundle for the final hearing. The Law[2]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[3]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[4]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: 4.1.1. “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”[5]Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re- litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”[6]In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. The Application[7]The application is in 4 main parts: 7.1. “Issues with the ETM Process & Administration” 7.2. “Issues with the ETM Hearing – The Final Bundle” 7.3. “The Judgment for the ordinary unfair dismissal complaint” 7.4. “The Judgment for the victimisation complaint.”[8]I will deal with each of these in turn, and then provide a summary of my overall conclusions in relation to the application. “Issues with the ETM Process & Administration”[9]I am only considering an application for reconsideration of the judgment of the Tribunal sent to the parties on 25 September 2024. In so far as the respondent complains about case management decisions made prior to the final hearing, I will not be dealing with those. If the respondent considered a judge erred in law in relation to an earlier case management decision or wanted to apply to vary a case management order, an appeal against that decision or an application should have been made at the relevant time. I consider there is no reasonable prospect of success in the application to the extent that it relies on earlier case management decisions which were not challenged at the relevant time.[10]Since I was the judge who conducted the private preliminary hearing for the purposes of case management in this case on 30 November 2021, I will, however, comment on some of the points made in this section which relate to that preliminary hearing. In paragraph 3 of the application, the respondent asserts that the Tribunal never responded to the respondent’s strike out applications. This is incorrect. Paragraph (17) of the record of that hearing (B63) refers to the strike out applications and my decision that evidence needed to be heard to determine the merits of the complaints and this was not, therefore, a suitable case to list a public preliminary hearing to decide whether the complaints had no reasonable prospect of success and, therefore, whether they should be struck out.[11]The respondent suggests, in paragraphs 9-10 that I should not have presided over the final hearing since I had conducted a preliminary hearing in this case. I cannot comment on why Employment Judge Anderson directed that he should not sit on a particular final hearing, having no knowledge of this. There was no reason to recuse myself from this final hearing and the respondent made no application for me to do so. It is not uncommon for judges to sit on final hearings of cases which they have case managed. I did not direct that I should be the judge on the final hearing of this case. My allocation to the final hearing was done by the region’s listing team based on availability of judges on the relevant dates. As a salaried judge, I sit on very many cases. Prior knowledge of a particular party in the sense of having conducted a case involving that party previously, is not a ground for recusal. In any event, my knowledge of the respondent was very limited. I had conducted one preliminary hearing in this case nearly three years before the final hearing. If, as suggested by the respondent, I had been involved in another case in which this respondent was a party, I have no recollection of this and, without the respondent having given me details of the case number and name of the claimant, I have not tried to check whether they are correct in this assertion.[12]I do not consider there is anything in this section (paragraphs 3-10 of the Issues with the ETM Hearing – The Final Bundle[13]The respondent refers to the difficulty with bundles which [7] summarises. The respondent did not make an application to postpone the hearing. It appeared to the Tribunal that, by allowing the respondent time to compare the bundles and supply missing documents, a fair hearing could proceed. As noted in [7] we did not start hearing evidence until the second day to allow time for this. We adjourned at 2.50 p.m. on the first day. Mrs O’Sullivan did not tell us, at the start of the second day, that she was not in a position to proceed. We had a number of breaks to allow Mrs O’Sullivan to send additional documents to the Tribunal.[14]The respondent asserts in paragraph 14 that a crucial piece of evidence, being minutes of the grievance meeting, was omitted from the bundle by the claimant’s legal representatives. The respondent asserts that the Tribunal unfairly and unjustly criticised Mrs O’Sullivan for not producing this document at the hearing. I am unable to find where, in our reasons, the respondent considers we made such a criticism. We note [45] that, if there were minutes of the meeting, as Karly Grainger told us that there were, we had not been shown them, which is a correct statement of fact. In any event, our conclusions do not rely on the absence of this document in any way. The Tribunal can only make its decisions based on the evidence put before it. The respondent had an opportunity to supply important documents which it discovered to be missing from the bundle during the hearing and did so on a number of occasions. The respondent does not explain what difference it says having this document would have made to the Tribunal’s conclusions. In these circumstances, I conclude that there is no reasonable prospect of the Tribunal taking the exceptional step of admitting this new document in evidence and no reasonable prospect of the Tribunal revoking or varying its decision at a reconsideration hearing.[15]The respondent asserts that the statement at [7] is very unfair and unjust and a wholly inaccurate and a very misleading and misrepresentative version of what was actually said upon this issue. This was a summary of the situation and not a verbatim record of what was said. I do not agree that it was wholly inaccurate, misleading and misrepresentative. The statement accords with my note and my recollection of events. I do not consider that it bears the meaning attributed to it by the respondent in paragraphs 23 and 24.[16]In relation to paragraphs 25 to 28, no application was made by the respondent with which the Tribunal was required to deal.[17]Paragraphs 32 to 58 are complaints about, in particular, my conduct of the hearing, alleging that I demonstrated bias in favour of the claimant and against the respondent. This is, perhaps, a matter which is more aptly dealt with as a ground of appeal in an appeal to the Employment Appeal Tribunal, which the respondent has indicated they will be making. I understand that a judge at the EAT can, if they consider it necessary to do so, listen to relevant parts of the recording made of the hearing and can read the transcript which I understand the respondent is obtaining, but which I have not seen. I do not consider that a reasonably well informed reasonable listener to the recording or reader of the transcript would be likely to conclude that I demonstrated bias.[18]I do not consider it proportionate to attempt to engage with every point made in this section of the application, but I will seek to address the most significant allegations.[19]The respondent alleges (paragraph 32) that I sought to “actively coach, direct, instruct” claimant’s counsel. I dispute this. The example relied upon in paragraph 33 was an attempt to ensure that the Tribunal was given the relevant evidence it needed to decide the issues before it. I would have done the same if Mrs O’Sullivan had not addressed, with a witness for the claimant, an issue in relation to which the Tribunal needed to make findings of fact.[20]An example of me intervening in a way helpful to the respondent, was my intervention about the issues relating to victimisation, recorded at [6].[21]At paragraphs 35-36, the respondent refers to the claimant’s solicitor sending to the Tribunal a further remedy statement for the claimant the evening before the day on which the Tribunal was to give its judgment on liability, at a stage when the Tribunal was in deliberations. The matter of a supplementary statement had been raised by claimant’s counsel just before the Tribunal adjourned for its deliberations on liability. I directed that the claimant should send this to the respondent but not the Tribunal to give the respondent a chance to object to this being put in evidence before we saw it. At this stage in the proceedings, it was uncertain whether the Tribunal would have time to deal with remedy during the allocated listing, if it found in favour of the claimant. I was not aware of the statement being sent to the Tribunal until the morning of 13 September 2024. I can see from my email inbox that the claimant’s solicitor’s email sending the remedy statement (sent to the Tribunal at 15.44 on 12 September 2024) was forwarded to me at 17.51 on 12 September 2024 but I did not see it that evening. Before I saw the email from the claimant’s solicitor, I saw Mrs O’Sullivan’s objections to the Tribunal considering this document, sent to the Tribunal at 16.49 on 12 September and forwarded to me at 18.01 and a further email sent by her at 17.02 12 September and forwarded to me at 18.06. I saw Mrs O’Sullivan’s emails before that of the claimant’s solicitor because, having arrived more recently, they appeared higher up in my email inbox. I did not see any of these emails until the morning of 13 September. I did not read the remedy statement and I asked Mr Cunningham and Ms Heath to read the emails but not the remedy statement. The Tribunal continued their deliberations on the morning of 13 September 2024 without reading the remedy statement. During our deliberations, at 11.26, my clerk forwarded to me a further email from Mrs O’Sullivan sent to the Tribunal at 11.18 asking when she would receive a response to the remedy correspondence sent the previous evening. It appears, from the time I gave instructions for a reply, that I did not read this immediately it arrived, since I was busy in deliberations with my non-legal members. I gave instructions for an email to be sent to the parties, which was sent at 12.33. This read: “The Tribunal has not read the remedy statement provided by the claimant. The Tribunal will discuss the correspondence, if relevant, after giving judgment on liability.”[22]After giving judgment and oral reasons on liability, it was clear that there was insufficient time to deal with remedy, so we made arrangements for a separate remedy hearing and I made case management orders to prepare for this hearing. Mrs O’Sullivan raised the matter of the remedy statement. Ms Dannreuther explained that she had sent it to her instructing solicitor asking him to send it to the respondent. She said she had omitted, in error, to tell her solicitor not to send it to the Tribunal at the same time. I do not recall whether I made the comment exactly as reported by the respondent at paragraph 36 but I do recall saying something along the lines of us all making mistakes. I had no reason to disbelieve Ms Dannreuther’s explanation. I said something to the effect of asking Mrs O’Sullivan what prejudice she said the respondent had suffered by the statement having been inadvertently sent to the Tribunal unless she did not believe me when I said we had not read it. Mrs O’Sullivan assured me that she was not saying I was not telling the truth.[23]With the benefit of hindsight, it would have been helpful to record this explanation in the Tribunal’s judgment and reasons. However, the remedy statement was not relevant to the Tribunal’s decision on liability and Mrs O’Sullivan had, it appeared from what she said, accepted that the Tribunal had not read the statement. Not recording the events relating to the remedy statement was not done in an attempt, as suggested by the respondent (paragraph 39) to “cherry pick” the aspects of the hearing I recorded. The hearing took place over a 5 day period. The purpose of judgment and reasons is not to record everything that occurs during a hearing but what is relevant to the Tribunal’s decision. It appears that the respondent is now questioning the truth of what I said about the Tribunal not having read the remedy statement (see paragraphs 41 and 43). I do not recall whether I used the phrase “I’ll be perfectly honest with you” and, if I did, the context of this remark. I accept that, as a member of the judiciary, I have a duty to act honestly. I have acted honestly, telling the truth at the hearing and in these reasons, that I did not read the remedy statement before giving judgment on liability. I have still not read this statement.[24]In relation to the redacted documents, the Tribunal made no criticism of the original redaction. The issue of concern was that the respondent, which all the time had the unredacted versions, gave evidence which, once the unredacted versions were provided, was demonstrably incorrect in some respects.[25]The respondent complains that it was not permitted to introduce new evidence during closing submissions. I explained at the time and in the reasons that this was not permissible (see [75 and 79]). The comparison with Ms Dannreuther being able to make submissions on the unredacted documents is not a correct comparison. Ms Dannreuther was not seeking to introduce new evidence; she was commenting on documents put in evidence and witness evidence which had been heard. It would be an error of law for the Tribunal to make findings of fact on the basis of information put forward by Mrs O’Sullivan in submissions, which the claimant had not had an opportunity to comment on and the claimant’s representative had not had an opportunity to cross examine witnesses about.[26]I do not consider there is anything in this section (paragraphs 11-58 of the The Judgment for the ordinary unfair dismissal complaint[27]Paragraph 59 raises the same point addressed above in relation to not being permitted to introduce new evidence during closing submissions. Paragraph 61 repeats points made in relation to the hearing bundle and addressed above.[28]The respondent refers at paragraph 63 to government guidance on redundancy. I understand the reference to the rules in the guidance, where 20 or more redundancies are proposed, to be to the rules relating to collective consultation contained in the Trade Union and Labour Relations (Consolidation) Act 1992. Whilst these rules do not apply if fewer than 20 redundancies are proposed, an employer is still required to act fairly, within the band of reasonable responses when making redundancies of smaller numbers if they are not to be found to have unfairly dismissed an employee who has sufficient service to have the right not to be unfairly dismissed. This obligation to act fairly in all the circumstances will normally include adequate consultation with the relevant employees. The list of complaints and issues sent to the parties following the preliminary hearing in November 2021 informed the parties that whether the respondent adequately warned and consulted the claimant was likely to be something the Tribunal would decide in relation to deciding whether the respondent acted reasonably in all the circumstances in dismissing the claimant.[29]The remainder of this section is a disagreement with the conclusions reached by the Tribunal. A Tribunal will not reconsider a decision just because a party disagrees with it and wishes it had gone in their favour. This would be contrary to the principle of finality in litigation.[30]The Tribunal reached its conclusions on the basis of the facts it found and application of the relevant law. I do not consider there is anything in this section (paragraphs 59-67 of the application) which means there would be a reasonable prospect of the judgment being revoked or varied on reconsideration. The Judgment for the victimisation complaint[31]Paragraph 68 appears to argue that if the allegation of discrimination is not upheld by a Tribunal, this must mean that any detrimental treatment because of making such an allegation cannot constitute victimisation. This is wrong in law. As explained to the parties during the hearing, an allegation of discrimination will not be a protected act if it is both false and made in bad faith. If it is false, but not made in bad faith, it will still be a protected act. The Tribunal was not asked to decide a complaint of pregnancy discrimination under the Equality Act 2010. Whilst the Tribunal did not uphold the complaint of automatic unfair dismissal relying on s.99 Employment Rights Act 1996 and Regulation 20 of the Maternity and Parental Leave Regulations 1999, the Tribunal found that the claimant was genuine when she first presented her grievance and in her first claim to the Tribunal in believing that her selection for redundancy was related to her pregnancy [59 and 110]. The Tribunal concluded, for this reason, that the allegations of pregnancy discrimination were not made in bad faith [112].[32]Paragraphs 71 to 72 display the same misunderstanding in relation to the protected act of making an allegation of race discrimination although, as noted in [111] the Tribunal did not have to decide any complaint of race discrimination. For the reasons explained [111 and 112] we concluded that making allegations of race discrimination was a protected act because, even if the allegations were false, they were not made in bad faith.[33]The respondent reiterates in paragraph 74 allegations about the way the Tribunal (in particular Employment Judge Slater) conducted the hearing, which have been addressed in a previous section.[34]The remainder of this section disagrees with the Tribunal’s findings of fact in [58] and the Tribunal’s conclusions that the claimant did not make her allegations of pregnancy and race discrimination in bad faith. This is an attempt to have a “second bite of the cherry” which undermines the principle of finality. A Tribunal will not reconsider a decision just because a party disagrees with it and wishes it had gone in their favour.[35]I do not consider there is anything in this section (paragraphs 68-78 of the Summary of overall
Conclusions
[36]Having considered all the points made by the respondent I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The application for reconsideration is refused.
Conclusions
[1]This was a remedy hearing, following oral judgment and reasons on liability being given at a hearing on 13 September 2024. Written judgment and reasons were sent to the parties on 25 September 2024. Case management orders for the preparation for this remedy hearing were sent to the parties on 18 September 2024.
The Law
[2]The original hearing had been listed to deal with liability and remedy (if appropriate). However, there was insufficient time, after giving judgment on liability, to deal with remedy.[3]The claimant succeeded in the following complaints: “Ordinary” unfair dismissal. Complaints of victimisation.[4]The claimant did not succeed in a complaint of automatic unfair dismissal relying on section 99 of the Employment Rights Act 1996 and Regulation 20 of the Maternity and Parental Leave Regulations 1999.[5]This remedy hearing was to determine remedy for the successful complaints of “ordinary” unfair dismissal and victimisation. The victimisation complaints were about the respondent not responding to requests for references and threatening the claimant with civil action.[6]The claimant had been represented at the liability hearing by Ms Dannreuther of counsel. The respondent had been represented by the respondent’s then acting managing director, Ms O’Sullivan.[7]At the remedy hearing, both parties were represented by different representatives. The Tribunal was informed that Ms O’Sullivan no longer works for the respondent.[8]The respondent has a pending appeal to the EAT against the judgment on liability. Prior to this remedy hearing, the judge refused a request to postpone the remedy hearing pending the outcome of the appeal against the judgment on liability. Issues for the remedy hearing[9]The judge informed the parties at the start of the hearing that we would want the representatives to address us on the “Polkey” argument i.e. what were the chances that the claimant would have been fairly dismissed and when, had the respondent followed a fair process. We had informed the previous representatives, prior to their closing submissions at the liability hearing, that we would deal with any “Polkey” argument at the remedy hearing, if the claimant was successful in any of her complaints. Mr Rix said he had thought that the Tribunal had decided at the liability hearing not to make any “Polkey” deduction, but the judge confirmed that was not the case.
Evidence
[10]Some variation to the case management orders to prepare for the remedy hearing had been agreed by Employment Judge Slater in a letter dated 17 October 2024. However, the parties had not complied with the varied orders, which required the hearing bundle to have been completed by 28 November 2024 and the witness statements to have been sent to each other by 19 December 2024.[11]A draft bundle had been sent by the claimant to the respondent on 10 January 2025, although we were told the claimant’s representative had tried making contact with the respondent before this.[12]The claimant objected to the respondent relying on documents and witness statements that had been sent to them on Saturday 18 January 2025, meaning that they had only reached the claimant’s counsel on the morning of this hearing. The Tribunal decided, after hearing submissions from both representatives, to admit in evidence the witness statement of Karly Grainger and the additional documents. Our reasons for this were given as follows: 12.1. There was woeful non-compliance with the case management orders by the respondent and a lack of any proper explanation as to why they were so late in the day in getting legal representation, which seemed to have triggered the witness statement and additional documents. However, there was also very late compliance by the claimant with the case management orders, although we noted that the claimant’s representative made attempts in December and January to contact the respondent’s then named representative, without success. 12.2. We had to consider the balance of prejudice and hardship that would be caused to either party by admitting or not admitting the witness statement and additional documents. We did not consider that the claimant was likely to be seriously prejudiced by admitting the witness statement and documents. The claimant had had some time already that morning to consider them with her representative. The Tribunal would allow the representative further time, if required, before cross examining Ms Grainger. Indeed, there could be some advantages to the claimant in allowing Ms Grainger to give evidence, since this would give the claimant’s representative an opportunity to cross examine Ms Grainger, if he wished to do so, on matters relevant to the “Polkey” issues. We considered there could be some prejudice to the respondent if we did not admit the evidence. Mitigation was an issue which we needed to consider. The respondent would be deprived of an opportunity to present evidence relevant to this if we did not allow the material in. 12.3. We concluded that the potential prejudice to the respondent in not admitting the evidence was greater than the potential prejudice to the claimant if we did admit the evidence.[13]We heard oral evidence from the claimant and Karly Grainger, both of whom had prepared written witness statements.[14]We had an electronic remedy bundle of 212 pages and the additional documents, in separate pdfs, which we had allowed the respondent to admit in evidence.[15]The claimant also provided some additional documents on the day of the hearing.[16]Page references in these reasons refer to pages in the remedy bundle, unless otherwise stated. Schedules of loss[17]For the original hearing, the claimant had prepared a schedule of loss (p.39) which claimed £10,000 for injury to feelings and £8,189.68 for unfair dismissal. This schedule did not seek compensation for loss of earnings arising from discrimination.[18]For this remedy hearing, the claimant had prepared a new schedule of loss. This sought slightly less compensation for unfair dismissal than the previous schedule but considerably more compensation for victimisation. The claimant claimed £27,000 for injury to feelings, aggravated damages of £4000 and substantial pecuniary damages for victimisation, on the basis that the claimant was unable to apply for work in her chosen profession as a child care practitioner because the respondent had refused to give a reference. The total amount claimed for victimisation, before interest and grossing up, was £43,374.30 in this new schedule of loss.
Facts
[19]We rely on facts in our reasons for the judgment on liability. We repeat some of the most relevant findings in these reasons. Paragraph numbers refer to paragraph numbers in the reasons for the judgment on liability.[20]The claimant worked for the respondent from 20 March 2018 until 30 September 2020, when her employment was summarily terminated (paragraph 52). The claimant worked initially as a lunch time cover assistant and, from 1 September 2019, as a childcare practitioner at the respondent’s nursery in Media City, Salford.[21]The claimant’s dismissal followed a redundancy selection process and the claimant being informed, on 15 June 2020, that she was being selected for redundancy due to being in an unqualified position (paragraph 42). The claimant was not given notice of dismissal at this time. The consultation process in the redundancy was put on hold whilst the claimant pursued a grievance, which was not upheld.[22]In cross examination, Karly Grainger was asked some questions about the redundancy selection process. She gave evidence that the employee with no training and under 2 years’ service who was kept on was a supply employee on a zero hours contract. This evidence appears inconsistent with the unredacted copies of the documents produced at the liability hearing. These documents indicate that one of the employees on the list of those made redundant, Leah Wallace, was supply. However, the employee with less than two years’ service who was unqualified, but not made redundant, Neisha Taylor, was not described on the respondent’s document as “supply”. We do not accept Ms Grainger’s evidence about Neisha Taylor.[23]The claimant’s submissions, made by Mr Nix without benefit of seeing the unredacted documents, are incorrect in suggesting that Alicia Millership had been retained by the respondent despite being unqualified and having two years’ service. Alicia Millership is included in the list on the unredacted version of p.207 of employees to be made redundant.[24]The claimant was eventually paid her statutory redundancy payment but not until 12 February 2021, the day the respondent presented its response to the claimant’s first claim (paragraph 60).[25]The claimant was pregnant when her employment was terminated on 30 September 2020. The claimant would probably have started maternity leave in February or March 2021, based on her expected date of confinement but, as we note later, the baby was born 12 weeks early, on 22 December 2020.[26]On 1 October 2020, the claimant contacted an education employment agency, writing that she would be available from November onwards and asking to be informed of any vacancy (p.140). The claimant was suffering from pregnancyrelated illness and thought she would feel better from November.[27]On 6 October 2020, the claimant expressed interest in a Learning Support Assistant vacancy being handled by Prospero Teaching (p.142).[28]On 4 November 2020, the claimant expressed interest to Hays in a vacancy for a Teaching Assistant (p.144).[29]The claimant had an emergency C-section on 22 December 2020, delivering her baby 12 weeks early. The claimant believes the stress of losing her job contributed to her having her baby early. The claimant had to stay in bed for one month’s recovery after the birth and then had to stay close to her baby for the first few months. Her baby was often admitted to ICU.[30]Because the claimant had left the respondent’s employment earlier than the 15th week before the expected week of confinement, the claimant was not entitled to Statutory Maternity Pay. However, using the Tribunal’s judicial knowledge, we find that the claimant was entitled to Maternity Allowance which, at the time, was the lesser of a flat rate of £151.97 per week or 90% of an employee’s average weekly earnings. This would be the same as the claimant’s entitlement to Statutory Maternity Pay, if she had remained employed by the respondent. We heard no evidence as to whether the claimant claimed Maternity Allowance but assume that she did so. Maternity Allowance is payable for up to 39 weeks.[31]We find that the claimant would have returned to work 13 weeks after the birth of her baby, as asserted by the claimant, if she had found work. We accept the claimant’s evidence than she started looking for work earlier than she would otherwise have done, due to her financial situation.[32]On 25 March 2021, the claimant sent an email to Supply Desk, expressing interest in the role of SEN Teaching Assistant in Trafford – (email 1).[33]In April 2021, the claimant received her level 2 certificate in childcare.[34]On 24 May 2021, the claimant sent an email to Supply Desk, expressing interest in a role of Nursery Teaching Assistant with a primary school in Eccles, from September 2021 -(email 2).[35]In May 2021, the claimant applied for a position of receptionist (p.172).[36]We found that Gemma Fletcher, on behalf of the respondent, refused to supply a reference for the claimant to Supply Desk, an employment agency, possibly multiple times (paragraph 66). We concluded that the respondent’s refusal to respond to requests for references for the claimant from Supply Desk, was an act of victimisation (paragraph 113). We were not satisfied that the respondent received requests and refused to give references to anyone other than Supply Desk (paragraph 66). It was unclear from the evidence at the liability hearing exactly when Supply Desk had approached the respondent. A message from someone at Supply Desk to the claimant dated 18 June (without year showing) confirms that they had approached the nursery for a reference and got a reply back from Gemma in which she declined to provide a reference at that stage (p.318 of the liability hearing bundle). Since the victimisation claim, including a complaint about this refusal, was presented on 8 October 2021, we assume the date of the message to be 18 June 2021, so the refusal to supply a reference to Supply Desk was some time before 18 June 2021. In her witness statement for the remedy hearing, the claimant says she applied to Supply Desk around April or May 2021.[37]On 10 June 2021, Nicola Fleury sent the claimant what was stated to be a notice of intention to issue legal proceedings against the claimant (see paragraph 62). It is this letter that we concluded was an act of victimisation (see paragraph 114).[38]The claimant claimed universal credit jointly with her partner and received universal credit starting in August 2021.[39]The claimant has done occasional work as an interpreter with the Big Word and other translation companies (pp.113-139). She earned £3,210.41 from this work in the period March 2021 to December 2024. The claimant says in her witness statement that this was from December 2021. However, the table of earnings, shows two small payments earlier in 2021, in March and August (p.112), totalling £31.24. There were two small payments in 2022, two payments in 2023, with the majority of payments being in 2024.[40]In October 2021, the claimant contacted Supply Desk about vacancies for SEN Teaching Assistants (p.145).[41]On 2 November 2021, the claimant contacted Premier Education, another agency, saying she was interested in a teaching assistant vacancy (p.147).[42]On 9 November 2021, the claimant emailed Prospero Teaching about an EYFS Teaching Assistant vacancy in Cheetham Hill (p.149).[43]At the end of November 2021, the claimant registered interest with another agency, Teacher Active (p.154). One of the things she was asked to supply was an updated reference.[44]Also at the end of November 2021, the claimant contacted Empowering Learning about a position as Trainee Education Recruitment Consultant (p.150).[45]On 7 December 2021, she expressed interest in a number of TA positions (p.160).[46]There is then a considerable gap in the mitigation documentary evidence supplied by the claimant. We do not consider that the claimant has provided a satisfactory explanation for this gap, if she was continuing to look for work.[47]In August 2023, the claimant contacted the Prospero Teaching agency, saying she was looking for work from September 3 days a week as a teaching assistant in Salford (p.164).[48]On 1 September 2023, the claimant was in contact with Monarch, about steps needed to set up an account with them (p.166). They wrote that, following successful completion of the online forms and DBS application, they would initiate contact with the claimant’s employment/character references from the previous 24 months. They wrote that their input was essential so asked the claimant to inform the referees in advance.[49]In April 2024, the claimant applied for a position as a member of a Spanish visa team (p.173). The claimant did not receive a response to her application.[50]In September 2024, the claimant expressed interest in a position as Head of MFL in a Girls School (p.168). The school was looking for a Spanish specialist. Although the claimant is a Spanish speaker, we think it unlikely she had the qualifications and experience necessary to be the Head of Modern Foreign Languages in a school.[51]In November 2024, the claimant had a registration interview with Sennen Education (p.170). The claimant says that, because of the lack of a reference, the agency could not place her.[52]As at the date of the remedy hearing, the claimant had not secured an employed position.[53]An email from a director of Now Education to the respondent, dated 6 December 2024 states: “In regards to our safer recruitment processes, it is no longer compulsory for Education and Early years settings to provide references for employees as with other sectors. Therefore, if we have chased the reference a minimum of twice and over a two week period and we have no [sic] been successful in obtaining it then we will keep the evidence and then seek alternative references, this may even be a character reference or volunteering reference if we can obtain a previous safeguarding reference. As long as all other compliance checks are satisfied then we would look to offer employment to them.”[54]This suggests there was a time when a reference had to be provided from the last employer in the education and early years setting but does not tell us when the change occurred. Karly Grainger confirmed in evidence that there was a time when it was compulsory for nurseries to provide references. She thought this had changed by the time the claimant was dismissed but could not guarantee this. She accepted that there was possibly no reason for the claimant to know that the position had changed.[55]Karly Grainger agreed that a character reference was not as desirable as a reference from a previous employer. Karly Grainger accepted that, one of the most important parts of the due diligence process in employing someone in the regulated sector of early years education was obtaining a reference. We accept her evidence that the respondent has employed someone who arrived without a reference from their previous employer. The respondent has employed more than one childcare practitioner without a reference from a previous employer.[56]The respondent’s response dated 10 November 2021 to the claimant’s Tribunal claim 2411487/21 made it clear that the respondent would not provide the claimant with a reference during the course of the hearing (p.189 para 8).[57]No one from the respondent has contacted the claimant since the liability hearing to say that they are now willing to provide the claimant with a reference.[58]We find, based on the emails with recruitment agencies we have seen, that there were jobs available in the early years sector in the local area from at least the summer of 2021. Based on the evidence of Karly Grainger in her witness statement for this remedy hearing, we find that there has been a staffing crisis in the early years’ sector since about the beginning of 2023. Around the time the claimant was dismissed, there was not such a great demand for workers in the sector, due to the impact of the pandemic, which led to the respondent making redundancies. Evidence of injury to feelings because of victimisation and aggravated damages[59]The claimant has been having counselling for panic attacks, anxiety and depression. She attributes her need for counselling to her dismissal as well as the refusal to provide a reference and threat of a civil lawsuit (claimant’s witness statement paragraph 12). We have seen evidence of counselling appointments, the earliest of which was in November 2022 (p.174).[60]The claimant is currently taking Sertraline, an anti-depressant. It appears she was taking this prior to the victimisation, since she writes in her statement (paragraph 13) that since the victimisation she has had to continue to take this. The claimant says the dosage increased to the maximum, 200g per day, while this case has been ongoing. The claimant has suffered hair loss since the victimisation, which she attributes to the respondent’s actions.[61]The claimant, when asked in cross examination why her claim for compensation for injury to feelings had increased from £10,000 to £27,000, said it was because that was the maximum she could claim.[62]The claimant was very upset to lose her job. Chasing the respondent for payment of her redundancy payment caused her a lot of stress and anxiety. These are not matters for which we can compensate the claimant, since they relate to the dismissal, not the victimisation.[63]In the letter of 10 June 2021 (the letter which we found to be an act of victimisation) the respondent wrote that the claimant had “deliberately and intentionally sought to mislead, and/or defraud KNL” by purporting to be a union member, by having a Unison employee accompany her at the grievance, and asserting that he was not a trade union representative. They accused the claimant of “dishonesty and deceit”.[64]In their response of November 2021, the respondent included the following allegation about the claimant (p.188 para 5): “the Claimant’s allegations within her secondary ET Claim (2411487/2021) are similarly, altogether dishonest, fictitious, fabricated & fake without absolutely no supporting evidence whatsoever & once again the Claimant acting in an entirely retaliatory & vexatious manner towards me, the Respondent, motivated entirely by a self-entitled, financial compensationcarousel mindset & mentality.”[65]Similar allegations about the claimant’s motivation were made in applications to strike out the claim e.g. the application dated 16 November 2021, paragraph 6. The claimant’s credibility, honesty and reliability are questioned in paragraph 8 and a reference made to the claimant’s “bad character”.[66]The respondent’s witness statements for the liability hearing were written in similarly intemperate language, making allegations about the claimant’s conduct and character.[67]Examples of allegations/criticisms of the claimant in the respondent’s witness statements include the following. Karly Grainger describes the claimant in paragraph 36 as “very much perceived as being difficult, and/or on the take, and/or very grabby in her approach and attitude towards her KNL Colleagues, and/or towards the KNL Management.” In paragraph 44 she describes the claimant as having a “self-entitled & self-deserving attitude”. Nicola Fleury accuses the claimant of “fictitious and baseless claims” (paragraph 36), of “reckless & irresponsible lying” (paragraph 39). She asserts that the claimant’s complaints of race discrimination and unlawful deduction of wages “essentially labels me & my Organisation as Racists & Thieves” (paragraph 40). She accuses the claimant of “libelous and slanderous conduct” (paragraph 41). At paragraph 53 she writes “This type of dogmatic, tunnel-visioned & inflexible mindset, attitude & approach is typical of [the claimant] and her character.” In paragraph 79 she describes the claimant as “manipulative & victim-orientated.”[68]We accept the claimant’s evidence in paragraph 14 of her statement that she has suffered mental distress by the respondent’s words and deeds throughout the litigation process. She considers the way they have described her as “horrible”, giving as an example the description in the response to her victimisation claim of her as “motivated entirely by a self-entitled, financial compensation-carousel mindset & mentality..” Submissions[69]There was insufficient time at the hearing to hear oral submissions from the representatives unless they were willing to limit these to a maximum of 10 minutes each. Although Mr Rix thought he could do oral submissions in less than 10 minutes, to add to the submissions he had already prepared in writing, Mr Boyd did not think he could make his submissions in 10 minutes. The respondent, therefore, preferred that written submissions should be made. The Tribunal decided that the parties should prepare written submissions. The timetable for this was agreed with the parties, allowing for time for each representative to comment on the submissions of the other party, if they wished to do so.[70]Both parties provided written submissions and written comments on the submissions from the other party.
Law
[71]Section 123(1) Employment Rights Act 1996 provides that 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 action taken by the employer.[72]In accordance with principles set out by the House of Lords in Polkey v AE Dayton Services Limited [1988] ICR 142, a tribunal may reduce a compensatory award for unfair dismissal by up to 100% if there is evidence to suggest the claimant might have been fairly dismissed, either at the time the claimant was dismissed or at some later date.[73]The EAT in Software 2000 Limited v Andrews [2007[ ICR 825 said at paragraph 53 in relation to applying the Polkey principle, “The question is not whether the tribunal can predict with confidence all that would have occurred; rather it is whether it can make any assessment with sufficient confidence about what is likely to have happened, using its common sense, experience and sense of justice. The guidance in paragraph 54 included the following: “(1) In assessing compensation the task of the Tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal. “(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the Tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future). “(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.”[74]Section 124(6) of the Equality Act 2010 provides that the amount of compensation which may be awarded for a breach of the Equality Act in relation to work is “the amount which could be awarded by a county court…under section 119”. Section 119 provides that the county court has power to grant any remedy which could be granted by the High Court in proceedings in tort and section 119(4) provides: “an award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis)”. The aim of damages in tort is to put the claimant in the position they would have been in, had the act of discrimination not occurred. Compensation (with the possible exception of exemplary damages which may be relevant in rare cases) is to compensate for loss caused by the act of discrimination. There is no limit on compensation for discrimination.[75]In relation to compensation for injury to feeling, we have regard to the guidelines in Vento v Chief Constable of West Yorkshire Police (no.2) [2003] IRLR 102. We note, in particular, the guidance that awards are compensatory and not punitive. Vento sets out the bands that we must consider. These were amended by subsequent case law. The Presidents of the Employment Tribunals in England and Wales and Scotland issued joint guidance in September 2017 to update the Vento bands to take account of inflation and to incorporate an uplift in accordance with the Simmons v Castle [2012] EWCA Civ 1039 and 1288 CA authority. Addendums each year have updated the relevant amounts.[76]The claimant’s claim was presented on 8 October 2021. The relevant updated Vento bands are, therefore, those which appear in the Fourth Addendum to the Presidential Guidance. These are: lower band £900- £9,100 (less serious cases); middle band £9100 - £27,400 (cases that do not merit an award in the upper band); and upper band £27,400- £45,600 (the most serious cases). In the most exceptional cases, the award can exceed £45,600.[77]The Tribunal has power to make an award of aggravated damages. In Commissioner of Police of the Metropolis v Shaw [2012] ICR 464, Underhill J (as he then was) identified three broad categories of aggravated damages. The claimant relies on the third, which is where subsequent conduct adds to the injury, for example, where the employer conducts Tribunal proceedings in an unnecessarily offensive manner or “rubs salt in the wound” by plainly showing that it does not take the claimant’s complaint of discrimination seriously. The Tribunal may make a separate award for aggravated damages or take account of the aggravating factors in assessing the injury to feelings award. Aggravated damages are compensatory in nature; they are not a punishment to the offender.[78]Interest is normally payable on awards of compensation for discrimination. This is currently at the rate of 8%. Interest on compensation for injury to feelings normally runs from the date of the act of discrimination until the calculation date. Conclusions Unfair dismissal
Conclusions
[79]The claimant received, albeit very late, her statutory redundancy payment, so no basic award is due.[80]We conclude that no reduction in the compensatory award under the Polkey principle can be applied in this case. This is a case where no sensible prediction based on the evidence could properly be made. We found at the liability hearing that the selection of employees for redundancy was not in accordance with the method the respondent had asserted i.e. selecting those unqualified employees with less than two years’ service and then those with two years’ service but shorter service. We have rejected Karly Grainger’s evidence at this remedy hearing as to why Neisha Taylor, an unqualified employee with less than two years’ service was not dismissed. The respondent’s own document did not support the assertion that Neisha Taylor was supply.[81]The claimant began looking for work almost immediately she was dismissed. She then had her baby about 12 weeks earlier than expected. We conclude that, in the period up until the birth of her baby, the claimant had taken reasonable steps to mitigate her loss and award her full loss of earnings for this period.[82]We accept the submission for the claimant that the evidence suggests that the claimant would have taken only 13 weeks maternity leave, until 25 March 2021, had she been able to get work to start then. For the 13 week period of maternity leave, we conclude that the claimant has no loss since the Maternity Allowance to which she was entitled was equivalent to the Statutory Maternity Pay she would have received from the respondent in that period, if she had not been dismissed.[83]We have seen evidence of continued job hunting from 25 March 2021 until early December 2021. However, there is then a big gap until we see further documentary evidence of job hunting in August 2023.[84]We conclude that the claimant was disadvantaged in getting employment in the childcare sector due to the respondent’s failure to provide a reference. Although we were not satisfied, in our liability judgment, that more than one agency had applied for a reference, we conclude that the claimant could reasonably expect that the respondent would take the same approach if other applications for references were made. The respondent confirmed as much in its response dated 10 November 2021 to the claimant’s second claim (see paragraph 69 of liability reasons).[85]However, we consider it likely that at some point, had the claimant pursued opportunities in the childcare sector, she would have been able to obtain employment, even without a reference from the respondent. The evidence we heard suggested that, although a reference from the most recent employer was desirable, this was not always essential. A point must also be reached at which, if efforts to find employment in the desired sector were not successful, the claimant, in taking reasonable steps to secure alternative employment, should have looked at jobs in other sectors. There is some limited evidence that the claimant did this, but no documentary evidence of this happening in the period January 2022 to July 2023. There is no evidence of the claimant seeking minimum wage level jobs in other sectors e.g. retail or hospitality. The claimant had been earning minimum wage with the respondent, so this would not have involved a drop in earnings.[86]We conclude that the claimant took reasonable steps to obtain alternative employment up to the end of 2021 but not beyond this. We have not been persuaded by the claimant’s oral assertions, not supported by documentary evidence, that she continued to look for work. We conclude that, had she taken reasonable steps, she would have obtained work at a comparable wage, even if in another sector, by the end of 2021. We, therefore, award loss of earnings on this basis in the compensatory award. The claimant must give credit for her earnings from translation, although they are small, in 2021. We award £500 for loss of statutory rights.[88]The calculation of compensation is set out at the end of these reasons. The calculation takes the compensatory award above the equivalent of 52 weeks’ pay, weekly pay being £158.70 based on 18.2 hours work per week and her rate of pay at the effective date of termination, £8.72 per hour. The statutory cap of 52 weeks’ pay must, therefore, be applied. Victimisation – financial loss[89]We conclude that the claimant lost the chance of a position through the agency Supply Desk, when the respondent refused to supply a reference. We are not persuaded that there was a particular job which was definitely going to be given to the claimant, if the respondent provided a reference. The claimant’s own witness statement does not go this far. The claimant says, at paragraph 7, that Supply Desk told her that “they had work for me as soon as the process was complete and I could go on their books.” This is more consistent with the agency having jobs for which they would put the claimant forward, once they had the reference, rather than the claimant being guaranteed to get a job.[90]We have concluded, when dealing with compensation for unfair dismissal, that the claimant failed to take reasonable steps to mitigate her loss after the end of 2021, so that should be the end point for compensation for loss of earnings. That reasoning applies equally to the claim for financial loss arising from victimisation as to compensation for unfair dismissal. Since full loss for the period to the end of 2021 is awarded as compensation for unfair dismissal and, based on our conclusions, any financial loss for victimisation would only be based on loss of a chance, with many uncertainties, we consider it appropriate to award all the financial loss under the heading of compensation for unfair dismissal rather than awarding some under the heading of compensation for victimisation. We note this was the approach taken in the claimant’s first schedule of loss, drawn up before the liability hearing, with legal assistance. Victimisation – injury to feelings[91]Some of the evidence from the claimant about hurt feelings related to her dismissal and is not, therefore, relevant to an award for victimisation by the failure to give the reference and threat of legal proceedings against her. We have to separate out the injury caused to the claimant by the acts of victimisation from injury caused by the unfair dismissal (for which we have no power to award compensation). Whilst there are two acts of victimisation, we do not consider it possible to separate out the injury caused by each individual act of victimisation. Both acts took place within a short space of time.[92]It appears that much of the upset caused to the claimant was because of her dismissal, rather than because of the victimisation. Although her witness statement was drafted with legal assistance, it has not provided a great deal of information about how the victimisation affected her.[93]The claimant has been having counselling for panic attacks, anxiety and depression. We conclude that the victimisation exacerbated these conditions. The claimant was taking Sertraline, an anti-depressant, before the acts of victimisation but has had to increase the dose. The claimant has suffered hair loss since the victimisation.[94]Based on the evidence we have, we conclude that an appropriate award for injury to feelings would be towards the lower end of the middle Vento band. We conclude that £10,000 would be an appropriate award, leaving aside additional injury caused by matters which we consider under the heading of aggravated damages. Aggravated damages[95]We have found that the claimant was upset by the way she has been described by the respondent in various documents in these proceedings, following her complaint of victimisation. We note that the respondent was not legally represented when presenting its response to the second claim and up to and including the liability hearing. Nevertheless, we consider the language used by the respondent and allegations made about the claimant in the various documents go beyond what is acceptable as robust defence of the claims. We conclude that the respondent’s conduct of the proceedings in the period from the response to the second claim up to the liability hearing falls into the third category outlined in Shaw, of conducting the proceedings in an unnecessarily offensive manner. This has included attacks on the claimant’s character. This has increased the injury to feelings suffered by the claimant.[96]We consider an award of £4000 for aggravated damages to be appropriate. This is to compensate the claimant for additional injury to feelings suffered because of the way the respondent conducted proceedings, it is not to impose a penalty on the respondent.[97]We have considered the totality of the award for injury to feelings plus aggravated and consider it is an appropriate award, not double-counting injury suffered by the claimant. Interest[98]Interest is normally payable on awards of compensation for discrimination and there is no reason put forward why we should not award interest on the compensation for injury to feelings and aggravated damages.[99]Interest on injury to feelings compensation normally runs from the date of the act of discrimination. The two acts of victimisation occurred in June 2021. However, the award of aggravated damages relates to conduct in the period beginning with the response to the second claim, on 10 November 2021, up to the liability hearing. We consider, in these circumstances, that it would be appropriate to award interest from a date roughly halfway between the acts of victimisation and that response i.e. to run it from 1 September 2021 until the calculation date, which is 10 March 2025. The interest rate is 8%. The calculations Unfair dismissal No basic award since C received statutory redundancy payment Compensatory award Full loss of earnings from dismissal until birth of baby: 1 October 2020 to 22 December 2020 (12 weeks) 12 x £8.72 per hour x 18.2 hours per week = 1,904.45 Maternity period 22 December 2020 to 25 March 2021 (13 weeks) No loss since C was entitled to Maternity Allowance of the same amount 0 as SMP Full loss of earnings 26 March 2021 to 31 December 202126 March 2021 to 31 March 2021 (1 week) 1 x £8.72 per hour x 18.2 hours per week = 158.70 1 April 2021 to 31 December 2021 (39 weeks) 39 x £8.91 x 18.2 hours per week = 6324.32 Total loss of earnings 8387.47 Less translation earnings in 2021 31.24 Net loss of earnings 8356.23 Loss of statutory rights 500 Total compensatory award (before application of cap) 8856.23 Cap of 52 weeks’ pay applies (52 x 158.70) 8252.40 Total compensatory award after application of cap 8252 Victimisation Injury to feelings (for both acts of victimisation) £10,000 Aggravated damages £4000 Total non-pecuniary loss: £14,000 Interest at 8 % from 1 September 2021 to 10 March 2025 (1286 days) 8/100 x 1286/365 x 14,000 = £3,946 Approved by: