Ms Rebecca McKeith v Mr Liam Alexander: 2500506/2020

EMPLOYMENT TRIBUNALS

Case No 2500506/2020

Between

Ms Rebecca McKeithClaimant

Mr Liam AlexanderRespondent

Before

Employment Judge Garnon

Date 27 May 2020

JUDGMENT

The claims of direct sex and pregnancy/maternity discrimination contrary to sections 13 and 18 of Equality Act 2010 are well founded . Remedy will be decided at a two hour hearing on a date to be fixed REASONS ( bold print is my emphasis and italics quotations )

[1]During the Covid19 pandemic, Tribunals and parties have to adapt. I, and some other Judges, am working from home without the paper file or printing facilities. It helps to have everything relevant in one electronically accessible document so I convert pdf to Word documents (which can lead to minor printing errors) then copy and paste parts into this one. The claim was presented on 4 March 2020. The claimant, born 7 January 1997, was employed from December 2017 and still is. She describes herself as a “personal assistant“. Her claim reads I received a message from my employer (Liam Alexander) saying he could no longer give me any hours as I was a "female" and was posing problems for him, despite being employed for nearly 2 years previously with no problems. This happened while I was roughly 6/7 months pregnant. This also caused me stress during my pregnancy which my doctor made me take sick leave for as the situation was making me very ill and it wasn't good for either me or the baby. Due to this I decided to seek legal advice and resolve the problem through ACAS to no avail. Since going through these proceedings my employer has withheld my wage/statutory maternity pay every month and I have had to chase it up - sometimes receiving it 5 days late. I have also received emails from my employer using vulgar language and making references towards me which are hurtful and disgusting and what I would also class as sexual and extremely unprofessional, all which I have evidence of. As for remedy claimed she writes I have seen fit to take legal advice on this matter and the person in question believes I should be seeking compensation for sex discrimination and injury to feelings. I have also lost out on maternity pay I was entitled to due to cancellation of shifts and me having to bring my maternity leave forward in fear of losing my job and being left penniless when I was having my son.

[2]The claim was served on the respondent’s address which is known to me as “supported housing”, including for elderly people. No response was received by the due date or even now as far as I am aware. I am required by rule 21 of the Employment Tribunals Rules of Procedure 2013 to decide on the available material (which may include further information a Judge requires parties to provide) whether a determination can be made and, if so, obliged to issue a judgment which may determine liability only or liability and remedy. The claimant by letter to the Tribunal replying to a query about the identity of her employer said: "Sorry for the confusion regarding my employer. Liam Alexander is my employer not Direct Payments. Direct Payments are a company involved in Gateshead Council’s payroll who give Mr Alexander the funding he needs in being able to employ people to care for him. Again, I am really sorry for any confusion this has caused and again would like to ensure it is clear that Mr Liam Alexander is my employer." Hope this helps!”

[3]I have encountered cases where a Local Authority, under a statutory obligation to care for vulnerable adults, funds their care but under an arrangement where the person receiving the care is nominally the employer of his carers. In some such cases I have seen strong evidence the “employer” does not have the mental capacity to enter into any contract, let alone understand his obligations under the Equality Act 2010 or how to put in a response. On consideration of the file Employment Judge Johnson said at a preliminary hearing today, to be by telephone due to the pandemic, we would discuss if Gateshead Council should be added as a respondent.

[4]I asked the claimant about the respondent. She informed me he is about her age, has muscular atrophy which results in him having little movement from his neck down but is studying for a university degree and has full mental capacity. His carers open his post and he gives instructions how to deal with it. He is IT literate and uses a laptop despite having little finger movement. He advertised for a carer which is how the claimant got the job. She worked for him without problems until she became pregnant. Three days ago, he emailed her asking if there was a way they could settle their differences.

[5]Rule 2 of the Employment Tribunal Rules of Procedure 2013 (the Rules) provides their overriding objective is to enable Tribunals to deal with cases fairly and justly which includes, in so far as practicable(a) ensuring the parties are on an equal footing

(b) dealing with a case in ways which are in proportionate to the complexity or importance of the issues

(d) avoiding delay , so far as compatible with proper consideration of the issues

(e) saving expense A Tribunal or Employment Judge shall seek to give the effect to the overriding objective in interpreting, or exercising any power given to it by the Rules The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal The reason for emboldening the word “cases” is that it is not only this case Employment Judges have to manage and Tribunal staff have to deal with. Especially during the Covid19 pandemic my aim is to give effect to the overriding objective, as best I can by reducing to a minimum the need for further hearings. Other relevant Rules include Disclosure of documents and information 31. The Tribunal may order any person in Great Britain to disclose documents or information to a party (by providing copies or otherwise) Requirement to attend to give evidence 32. The Tribunal may order any person in Great Britain to attend a hearing to give evidence, produce documents, or produce information. Addition, substitution and removal of parties 34. The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings; and may remove any party apparently wrongly included. Other persons 35. The Tribunal may permit any person to participate in proceedings, on such terms as may be specified, in respect of any matter in which that person has a legitimate interest.

[6]I had in the claim form sufficient to enable me to find the claims proved on a balance of probability but not enough to determine the sums to be awarded. I was until I spoke to the claimant at the preliminary hearing today cautious about issuing a Rule 21 judgment in case the respondent lacked the ability to have put in a response. I was minded to send questions to Gateshead Council Social Services Department. The claimant assured me they had said the respondent’s actions had nothing to do with them. I am reassured the respondent could have entered a response in time. He may still be heard on questions of remedy. A hearing in person cannot be arranged for many weeks unless by remote means so if either party wishes to inform the Tribunal of their ability to participate in one they should do so. I will order a schedule of loss. Employment Judge Garnon Judgment authorised by the

[1]The only issue is what remedy should be awarded for acts of discrimination upon which I gave judgment on 27 May 2020 under rule 21 of the Employment Tribunals Rules of Procedure 2013. The claimant, born 7 January 1997, was employed from 13 December 2017 as a “personal assistant“, which means she cared physically for the respondent who is physically seriously disabled and requires round the clock care . Her claim reads: I received a message from my employer (Liam Alexander) saying he could no longer give me any hours as I was a "female" and was posing problems for him, despite being employed for nearly 2 years previously with no problems. This happened while I was roughly 6/7 months pregnant. This also caused me stress during my pregnancy which my doctor made me take sick leave for as the situation was making me very ill and it wasn't good for either me or the baby. Due to this I decided to seek legal advice and resolve the problem through ACAS to no avail. Since going through these proceedings my employer has withheld my wage/statutory maternity pay every month and I have had to chase it up - sometimes receiving it 5 days late. I have also received emails from my employer using vulgar language and making references towards me which are hurtful and disgusting and what I would also class as sexual and extremely unprofessional, all which I have evidence of.

[2]Her Early Conciliation certificate named the respondent as on the claim form but added the words “ Direct Payments”. The claim was presented on 4 March 2020 and said employment continued. As for remedy claimed she wrote: I have seen fit to take legal advice on this matter and the person in question believes I should be seeking compensation for sex discrimination and injury to feelings. I have also lost out on maternity pay I was entitled to due to cancellation of shifts and me having to bring my maternity leave forward in fear of losing my job and being left penniless when I was having my son.

[3]She gave evidence on affirmation today her baby son was born on 2 December 2019. He is her first child.The baby had been due on 14 December and she had planned to work until November. She is a student at university and regularly did two twelve hour shifts caring for the respondent on a Friday and Saturday which fitted around her studies. She has a partner. Her own parents and his are willing and able to look after her son as often as needed. Had it not been for the discrimination, she would have returned to working the same shifts as before. I asked her how the respondent would cope if she or her son became ill and she could not attend a shift. She explained if she or any of the carers are sick at short notice, the one on shift transports the respondent to his own family who look after him until the next carer comes on shift. Because the respondent has not participated at all in these proceedings, to be fair to him, I raised all the obvious questions as to how, had it not been for the discrimination, which the claimant now accepts as having brought her employment to an end, she could in practice have returned, and I was wholly reassured she could and would have.

[4]She described her relationship with the respondent as one of friendship as well as employment saying she could not understand why his attitude to her changed so dramatically from the time she told him in about April 2029 she was pregnant, but it clearly did.

[5]The claim was served by post to the respondent’s address, which is known to me as “supported” housing, on 1 April. No response was received by the due date, or ever. An Employment Judge is required by rule 21 to decide on the available material (which may include further information a Judge requires parties to provide) whether a determination can be made and, if so, obliged to issue a judgment which may determine liability only or liability and remedy. The claimant by letter to the Tribunal replying to a query from Employment Judge Arullendran, about “Direct Payments “ possibly being a company which employed her, said: "Sorry for the confusion regarding my employer. Liam Alexander is my employer not Direct Payments. Direct Payments are a company involved in Gateshead Council’s payroll who give Mr Alexander the funding he needs in being able to employ people to care for him. Again, I am really sorry for any confusion this has caused and again would like to ensure it is clear that Mr Liam Alexander is my employer." Hope this helps!”

[6]I have encountered cases where a Local Authority, under a statutory obligation to care for vulnerable adults, funds their care under an arrangement whereby the person receiving the care is legally the employer of his carers. In some such cases I have seen strong evidence the “employer” does not have the mental capacity to enter into any contract, let alone understand his obligations under employment law, or how to put in a response. On consideration of the file Employment Judge Johnson fixed a preliminary hearing, by telephone due to the pandemic, to discuss if Gateshead Council should be added as a respondent.

[7]On 27 May 2020 I conducted that hearing which the respondent did not attend. I asked the claimant about him. She informed me he is about her age, has muscular atrophy which results in him having little movement from his neck down but he is studying for a university degree and has full mental capacity. His carers open his post and he gives instructions how to deal with it. He is IT literate and uses a laptop well despite having little finger movement. He advertised for a carer which is how the claimant got the job. She worked for him without problems until she became pregnant. Three days before the hearing, he had emailed her asking if there was a way they could settle their differences. I was, until I spoke to the claimant, cautious about issuing a Rule 21 judgment in case the respondent lacked the ability to have put in a response. I was reassured he could have. He could still be heard on remedy. The claimant assured me Gateshead Council Social Services Department had said the respondent’s actions had nothing to do with them. She told me today her statutory sick,and later maternity, pay came by transfer into her bank account from the respondent’s, not from the Council.

[8]I had in the claim form sufficient to enable me to find the claims proved on a balance of probability but not enough to determine the sums to be awarded. Therefore, on 27 May 2020, I gave judgment in default of a response that claims of direct sex and pregnancy/maternity discrimination contrary to sections 13 and 18 of Equality Act 2010 (EqA) were well founded. I ordered remedy would be decided at a two hour hearing on a date to be fixed. Notice of it was sent to the respondent. The claimant was to provide to the respondent and to the Tribunal, an itemised statement of outcomes sought to include(a) details of lost earnings

(b) state benefits she had received

(c) any other outcomes she sought such as an award for injury to feelings. She did so on 10 June by email copied to the respondent. The respondent was to file a response within 14 days thereafter but has not done so. LAW

[9]The statutory provisions of the EqA as far as relevant are in section 124 (2)The tribunal may—(a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate;

(b) order the respondent to pay compensation to the complainant;

(c) make an appropriate recommendation. (6)The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by a county court or the sheriff under section 119. Section 119 says the Tribunal must try to assess what the position would have been but for the discrimination and attempt to restore the claimant to that position Abbey National plc-v-Chagger

2010 ICR 397

. I need to compare the financial benefits she would have had if she not been treated unlawfully with those she has had, and will be likely to obtain in the future.

[10]Compensation for injured feelings is not meant to punish. What matters is the effect on the claimant. The reason employment tribunals sometimes appear to focus on the respondent’s conduct is best explained thus. If a person has been injured in a car accident, one does not read in a report of the case how bad the defendant’s driving was but about clinical findings, X rays and scans of the injury. Feelings cannot be scanned. If one watches a boxing match and sees a punch landing, one can imagine how much it hurts by drawing on experiences one has had of being struck. One can convey that to a person who has not seen it, by describing the blow. However, then one must remind oneself the person being struck is a professional boxer with a higher pain threshold than a frail person who would be hurt more by the same punch. We start by describing the conduct ,next asking “how would we feel if that happened to us ?”and finally“ Is this claimant more or less likely than us to feel hurt having regard to all we know about her?”. Just to listen to how a witness says she has been effected, risks giving greater compensation to better actors.

[11]Tribunals put awards into at the time : a lower band of £900 to £8,800 (less serious cases); a middle band of £8,800 to £26,300 (cases that do not merit an award in the upper band); and an upper band of £26,300 to £44,000 with the most exceptional cases capable of exceeding that. CONCLUSIONS

[12]The liability judgment contains the declaration and the claimant seeks no recommendations. Her pay was £111 per 12 hour shift ie.£9.25 per hour. On various dates from telling the respondent she was pregnant in about April until September 2019, he cancelled 8 shifts for no reason she can think of other than her pregnancy, which he seemed to resent. That caused a loss of £888

[13]Due to the stress of the situation she was signed off on sick leave by her GP from 13 September -12 October 2019 during which she would have worked 9 shifts at £111. That sum, less statutory sick pay at £98.85 per week, gives a loss of £603.60

[14]She then brought her maternity leave forward and was paid statutory maternity pay until 10 July 2020. I accept, after all that has happened, she could not be expected to return to the respondent’s employment . Her statement of outcomes sought reads I believe it could potentially take me 6 months to find a new job that pays the same and also that I am able to accept due to the fact I am a parent now and future employers might not be so accommodating with hours I am able to do. I also believe that coronavirus will play a part in having an effect on this due to reduced recruitments and redundancies. . Her estimate of 6 months loss = 48 shifts from 10 July at £111 per shift is conservative £5,328

[15]As for injury to feelings the claimant had a close connection with the respondent as any carer does. She cannot understand what caused him to turn against her as he did, which is relevant to how much the way she was dealt with affected her at a time in her life which would otherwise have been one of great happiness. She describes that in her statement of outcomes sought: “I was extremely upset to lose a job that I had enjoyed and a job I believed was secure, especially when I felt this happened due to my pregnancy and my sex. It affected me hugely in regard to my own personal mental health and it had a huge effect on how I felt during the remaining months of my pregnancy. I was signed off on the sick by my doctor until my maternity leave started. Since my maternity leave has begun Mr Alexander has withheld my wage on more than one instance causing me further distress and worry and I have also received an email from Mr Alexander using derogatory terms that could also be classed as sexual harassment and very unprofessional.” Having spoken with her solicitor she said the appropriate injury to feelings award would be lower end of the middle band £10,000. I entirely agree.

[16]I am obliged to award interest at 8% per year but have some discretion as to how to fix the period it should cover. I believe it should for the past loss of earnings ( the first two elements above totalling £1491.60) be from the midpoint between mid April and mid October 2019, that is mid July 2019, to now in mid August 2020 =13 months = £129.27. For the injury to feelings (£10,000) which peaked in about mid October 2019 to mid August 2020 = 10 Months. Interest for that period at 8% per year = £666.67.

[17]Due to having to seek legal advice, the claimant asked me to award £500 in legal and solicitors’ fees. I explained to her under the Rules costs can only be awarded in restricted circumstances and none of them apply in my view. The respondent has offered no resistance to this claim at any stage despite myself and other Judges taking every precaution to ensure he could. The claimant’s last question to me today was whether he personally would have to pay the award, or could she ask the Council to pay it. She seemed genuinely concerned not only about being unable to enforce payment but for the effect of such liability on the respondent. He and he alone as her employer can be found liable. Being an employer brings with it responsibilities and I have often been concerned that in this model used to empower disabled people, whose care is publicly funded, those people are not sufficiently aware of potential liabilities which may attach to them or how to avoid incurring or insure themselves against such liabilities. I can do nothing to change that model . Employment Judge T.M. Garnon Judgment authorised by the

[1]The respondent has applied for a reconsideration of a judgment on liability made by me under Rule 21 in circumstances where no response had been presented, by an email from a Mr Mohammad Islam of “ Premier Care” timed at 17:51 on 20 August 2020, copied to the claimant and to the respondent by email . It reads Application for a reconsideration of Ms Rebecca McKeith v Liam Alexander - Case Number: 2500506/2020 We act for the Respondent in the above proceedings who applies under rule 71 of the Employment Tribunals Rules of Procedure 2013 (ET Rules) for a reconsideration of the judgment made by Employment Judge Garnon on 27th May 2020 that the claims of direct sex and pregnancy/maternity discrimination contrary to sections 13 and 18 of Equality Act 2010 are well founded. The Respondent believes it is necessary for the judgment to be varied or revoked because the Respondent has not received any correspondence from the Tribunal of such a claim and was unable to submit a defence and was not aware of a tribunal hearing and also the remedy hearing. The Respondent received a text message from the Claimant’s partner today (20th August 2020) that they had succeeded the tribunal. The Respondent was unaware of what to do and this is when he contacted his representative and upon reviewing the judgement online, we immediately prepared the application. In accordance with rule 70 of the ET Rules, it would therefore be in the interests of justice to vary the judgment by allowing the Respondent the opportunity to submit a defence and comply with new case management orders and to attend a final hearing, or revoke the judgment. We further consider that making the order requested would be in accordance with the overriding objective because it would give the Respondent the opportunity to present their defence whereby both parties would be on an equal footing. We confirm that we have complied with rules 30(2) and 92 of the ET Rules by copying in the Claimant and advise them that any objection to this application must be sent to the tribunal as soon as possible and to copy ourselves in all future correspondence.

[2]The Rules include. 71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72.(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal.

[3]During the Covid19 pandemic, I, and some other Judges, were working from home without the paper file. The claim was served by post to the respondent’s address on 1 April, and, as it was a discrimination claim, a preliminary hearing was listed for 27 May. No response was received by the due date, or ever. An Employment Judge is required by rule 21 to decide on the available material (which may include further information a Judge requires parties to provide) whether a determination can be made and, if so, obliged to issue a judgment which may determine liability only or liability and remedy. Employment Judge Arullendran, working from home, spotted on the Early Conciliation certificate, after the respondent’s name, the words “Direct Payments“. This alerted her to the possibly a company may have employed the claimant so rather than running the risk of a judgment against the wrong respondent, she directed a letter be sent asking the claimant to clarify. It was sent on 7 May and the claimant replied on 12 May: "Sorry for the confusion regarding my employer. Liam Alexander is my employer not Direct Payments. Direct Payments are a company involved in Gateshead Council’s payroll who give Mr Alexander the funding he needs in being able to employ people to care for him. Again, I am really sorry for any confusion this has caused and again would like to ensure it is clear that Mr Liam Alexander is my employer." Hope this helps!”

[4]On 22 May a letter converting the preliminary hearing to a telephone hearing due to the pandemic was sent to both parties . On consideration of the claimant’s reply Employment Judge Johnson directed the parties could discuss at the telephone hearing if Gateshead Council should be added as a respondent. I was to conduct that hearing working from home.

[5]I and most Employment Judges have encountered cases where a Local Authority, under a statutory obligation to care for vulnerable adults, funds their care under an arrangement whereby the person receiving the care is legally the employer of his carers. In some such cases I have seen evidence the “employer” does not have mental capacity to enter into any contract, let alone understand obligations under employment law, or how to file a response. When I saw the information sent to me on 26 May, I recognised the respondent’s address as “supported” housing made available by Gateshead Council’s social services department for disabled people, many being elderly. I was alert to the possibility of post going astray during the pandemic and/or a disabled respondent not being able to send a response.

[6]On 27 May 2020 I conducted that hearing which the respondent did not attend. I asked the claimant about him. She told me he is a young man who has muscular atrophy which results in him having little movement from his neck down but he is studying for a university degree and has full mental capacity. His carers open his post and he gives instructions how to deal with it. He is IT literate and uses a laptop well. He advertised for a carer which is how the claimant got the job. She worked for him without problems until she became pregnant. Three days before the hearing, he had emailed her asking if there was a way they could settle their differences. She told me of her attempts and those of ACAS to contact the respondent being ignored. She had spoken to Gateshead Council who said they had no liability for what the claimant had done but they doubtless had social workers maintain contact with him

[7]Until I spoke to the claimant, I was cautious about issuing a Rule 21 judgment. After doing so,I was reassured he could have responded . He could still be heard on remedy. I had in the claim form sufficient to enable me to find the claims proved on a balance of probability but not enough to determine the sums to be awarded. Therefore, on 27 May 2020, I gave judgment in default under Rule 21. During the pandemic, it helped Judges working from home without printing facilities to have everything relevant in one electronically accessible document so I converted pdf to Word documents, copied and pasted all relevant parts of the claim into the written reasons running to two full pages. I set out when the claim was presented and served that a response had been due by 29 April but none was received even by the date of the telephone hearing . I set out the enquiries I made of the claimant and her evidence of how the respondent’s mental capacity , how his carers dealt with his post. and that he had contacted her by email three days earlier.

[8]The liability judgment sent to the parties on 28 May 2020 together with orders that remedy would be decided at a two hour hearing on a date to be fixed. Notice of it was sent with the judgment . The claimant was to provide to the respondent and to the Tribunal, an itemised statement of outcomes sought. She did so on 10 June by email copied to the respondent. The respondent was to file a response within 14 days but has not done so.

[9]I conducted the remedy hearing which the respondent did not attend. The judgment running to four full pages repeated some of my earlier written reasons.That judgment sent by post on 21 August would have been received by the respondent in the normal course of post by 22nd. There is no draft response with the application for reconsideration and none has been sent since, The claimant told me her statutory sick, and later maternity, pay came by transfer into her bank account from the respondent’s, not from the Council.

[10]I do not know who Premier Care are and the email address PremierCare@msl.co.uk takes one to a home care service in the Midlands .Mr Islam’s assertion, based on what the respondent has told him, is the Respondent has not received any correspondence from the Tribunal of such a claim and was unable to submit a defence and was not aware of a tribunal hearing and also the remedy hearing and that is the only basis of the application. After the claim was sent by post on 1 April with notice of a preliminary hearing, a letter converting the hearing to telephone due to the pandemic was posted on 22 May. On 28 May the liability judgment and orders for the remedy hearing were posted. On 10 June the claimant copied to the respondent her schedule of loss by email. On 13 July notice of the CVP hearing was posted to the respondent. Not one of four letters posted has been returned undelivered by Royal Mail

[11]It is, literally, beyond belief that four letters have gone astray between April and July, to say nothing of the emailed schedule of loss copied to the respondent and the email he sent her, which I have not seen, on about 24 May. Everything I have read and heard leads me to the view he ignored the claim. He had not responded to the claimant and though I can see why he would not deal with her , that is no reason for him not contacting the Tribunal. 12.The commonly cited cases eg Kwik Save-v-Swain, and Pendragon plc-v-Copus concern delay in responding, as Mummery P said in Kwik Save, “ as the result of a genuine misunderstanding or an accidental oversight “. That is not the case here. Under the 2013 rules, the only ground for a reconsideration is whether one is necessary in the interests of justice. That means justice to both sides and to other litigants.

[13]The prejudice to the claimant of a reconsideration would be that she has been through two hearings and obtained two judgments and would now be “back to square one”. I and the other Employment Judges who have dealt with this case have been ultra cautious to ensure there was no reasonable possibility the respondent, due to his disability and/or the pandemic, had not had the opportunity to have his say.The modernised rules are designed to do justice between the parties. Everyone is still entitled to a hearing if they follow the rules to avail themselves of that right. The Employment Tribunals send to every respondent very detailed explanations of what they must do, when they must do it and the consequences of not complying. For whatever reason this respondent has ignored the claim and a procedure has followed which resulted in two judgments. To allow a respondent, who has not taken advantage of the opportunity to defend, to do so after a Rule 21 judgment would not be just. EMPLOYMENT JUDGE T.M. GARNON

REASONS

[1]These are contained in orders of 6 November which have been sent to the parties EMPLOYMENT JUDGE T.M. GARNON