Employment Judge ArullendranMr Brien (instructed by Counsel) for respondentDate 2 November 2020
JUDGMENT
The Judgment of the Employment Tribunal is as follows:[1]The claims under section 15 and section 20 of the Equality Act 2010, insofar as they relate to the claimant’s claim that the respondent failed to provide safe access to a disabled toilet and required the claimant to park in two parking spaces, are struck out under the principle of res judicata.[2]The remainder of the claimant’s claims (unfair dismissal, harassment, victimisation and the failure or delay in providing Asperger’s awareness training) shall proceed to a full hearing. The Employment Tribunal shall arrange a preliminary hearing as soon as possible to make case management orders in respect of these claims so that they can be bought to a full hearing.
REASONS
[1]I was provided with a joint bundle of documents consisting of 477 pages, the majority of which were not referred to by either side. The bundle of documents appears to have more relevance to the full merits hearing rather than this preliminary hearing and I explained to the parties that I would not consider all of the documents in the bundle and that I would only consider those documents which are relevant to the issues I have to decide in this preliminary hearing. Neither side calling witness evidence and both sides made submissions by reference to the previous Judgment promulgated by Employment Judge Hargrove on 28 March 2018 and the claimant’s current claims.[2]The issues to be determined by the Employment Tribunal at this preliminary hearing are as follows:2.1 to consider if any allegation of the claimant should be struck out on the basis that it is res judicata2.2 to consider if any allegation of the claimant should be struck out on the basis that it is caught by the doctrine in Henderson v Henderson2.3 to consider if any claim of the claimant should be struck out on the basis that it has no reasonable prospect of success pursuant to Rule 37(1)(a) of Schedule I to the Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013 (“the 2013 Rules”)2.4 to consider whether any argument or allegation advanced by the claimant has only little reasonable prospect of success and to consider ordering a deposit of not exceeding £1000 as a condition of continuing to advance such argument or allegation pursuant to Rule 39 of the 2013 Rules.[3]The claimant was asked by the Employment Tribunal whether there were any reasonable adjustments he required the Tribunal to make to assist him with his attendance at this hearing, in addition to the arrangements which had already been made to the hearing room to accommodate the claimant’s wheelchair. The claimant asked for breaks to be provided throughout the hearing and it was agreed that the claimant’s mother, as the claimant’s representative, would request breaks as and when required. I asked the parties at the end of the respondent submissions and claimant submissions whether a break was required, but both parties elected to continue with the hearing which lasted approximately 1 hour and 35 minutes.[4]I explained to the parties at the outset of the hearing the law relating to estoppel. I explained that a party cannot pursue a cause of action which had been dealt with in any proceedings and this is known as cause of action estoppel. I explained that a party cannot reopen an issue that has been decided in earlier proceedings and this is known as issue estoppel. I explained that the rule in Henderson v Henderson provides that if a party fails to raise an issue in the proceedings which he could and should have raised, that party maybe estopped from raising it in future if it would amount to an abuse of legal process and the reason why this rule exists is because there should be finality in litigation.[5]In preparation for this hearing Mrs Shield wrote to Employment Judge Hargrove asking for his recollection of the event at the hearing which took place in February and March 2018 on the basis that the claimant’s recollection is that that Tribunal did not make any findings of fact on any issues arising after the presentation of the ET1 in that claim. A copy of Employment Judge Hargrove’s reply can be seen at pages 134 and 135 of the bundle. Employment Judge Hargrove states “It is his clear recollection, supported by page 6 of his notes, that the full Employment Tribunal refused the claimant’s application to reply upon events taking place after the date of the ET1 in that case upon the basis that they had not been raised before the hearing; that if an amendment was allowed, there would be insufficient time to complete the hearing in the time allocated; and that in any event the claimant would be entitled to bring fresh proceedings against BPDTS in respect of those matters, the claimant being still employed. There was, in that respect, a reference to an Access to Work issue, the exact nature of which I do not recollect being identified, but which the Tribunal refused to consider. Accordingly, although I am not aware of the current issues raised by the claimant, the claimant was denied the opportunity to raise issues arising after the date of the ET1 in the earlier case.”[6]The claimant’s current claims, as set out in his ET1 form, can be seen at pages 71 to 85 of the bundle and a copy of the claimant’s further better particulars of claim can be seen at pages 93 to 109 of the bundle. The claimant’s ET1 form appears to have been completed by the claimant in person and the further and better particulars have been compiled by the claimant’s legal representative, Jason Elliott Associates. To summarise, the claimant has made claims of failure to make reasonable adjustments in failing to provide Asperger’s awareness training as recommended by Access to Work, failure to make reasonable adjustments and section 15 discrimination in the use of a toilet, failure to make reasonable adjustments and section 15 discrimination in requiring the claimant to park across two parking bays, harassment, victimisation and unfair dismissal.[7]The respondent’s response to the claimant’s current claims are set out in the response at page 86 to 92 of the bundle and the second response (in reply to the further and better particulars from the claimant) which can be seen at pages 113 to 120 of the bundle. The respondent argues that the principle of res judicata applies because the claimant had brought the same claims against the respondent under the case number 2500647/2017, for which the Judgment was issued on 28 March 2018. The respondent argues that the previous Tribunal made findings in relation to the section 15 discrimination and failure to make reasonable adjustments claim in respect of the respondent granting two ordinary car parking spaces to the claimant instead of one demarked disability car parking space, harassment on the grounds of the claimant’s condition of Asperger’s by way of criticism and comments from colleagues regarding his confrontational manner, poor timekeeping, extensive use of his mobile telephone and untidiness of his desk, and victimisation in that he was placed on a performance improvement plan and that he was criticised for his poor timekeeping and the use of his mobile telephone at his desk. The respondent argues that the previous Tribunal made findings that there was no breach of the Equality Act in relation to the claimant’s access to disabled toilet facilities, that there was no detriment to the claimant by not painting the car parking bays with a disability sign, that the comments made about the claimants confrontational attitude prior to 24 March 2017 did not amount to discrimination because the respondent had no knowledge of the claimant’s condition of Asperger’s, that any comments or criticisms made of the claimant did not relate to disability and therefore did not amount to harassment and that there was no victimisation as the claimant had not identified any acts of detriment.[8]With regard to the claimant’s claim that the respondent has failed to provide Asperger’s awareness training, as recommended by Access to Work, the respondent submits that this training was provided by the respondent on 21 and 22 June 2018 and that the respondent understands that the alleged failures relate to the delay in providing the training. The referral was made to Access to Work in April 2017 and the respondent’s case is that there was a delay in arranging the training because the claimant was absent from work between August and December 2017. However, the respondent concedes that, in light of the letter from Employment Judge Hargrove, it cannot submit that this matter was dealt with by the previous Tribunal. However, the respondent submits that this claim has little reasonable prospect of success as the delay in the provision of the training were caused by the claimant’s absence and the delay itself does not render the provision of the training unreasonable.[9]The respondent submits that the claimant’s claims relating to failure to provide the claimant with a disabled access toilet which others could not use and the provision of two parking spaces in the parking bay amount to an abuse of process as both the issues were dealt with by the previous Tribunal. The Judgment at pages 49 and 50 of the bundle, at paragraph 12, specifically deals with the claimant’s claim that it was a failure to make reasonable adjustments and discrimination contrary to section 15 in allowing other colleagues to use the disabled access toilet. The Judgment at page 41 of the bundle, at paragraph 6.1, deals with the claim for failure to make reasonable adjustments by requiring the claimant to park across two parking spaces. Therefore, the respondent submits that both these issues stand to be struck out on the grounds of res judicata.[10]The respondent submits that the claimant has made generic statements in his further and better particulars about his claims of harassment and victimisation. In particular, the respondent submits that the claimant has failed to particularise whom, when or how the harassment took place and how it related to the claimant’s disability. Further, the respondent submits that Employment Judge Hargrove previously rejected the claimant’s claim of harassment, which is set out at paragraph 15 of the Judgment and can be seen at page 51 of the bundle. The respondent submits that, as the claimant has not provided any dates or specified any acts in his claim, that there is no reasonable prospect of success, particularly as the claimant has not identified any incidents which postdate the previous Judgment, despite having two attempts to specify the nature of the harassment in his pleadings. Therefore, the respondent submits that this claim should be struck out.[11]The respondent relies on the same arguments in relation to the claims of victimisation as set out for the claims of harassment in paragraph 10, above. In particular, the respondent submits that the claimant, was referring to 2 grievances and contacting the CEO as his protected acts, but he has failed to specify any acts of detriment other than being unfairly disciplined. The respondent submits that the first grievance was in August 2017 which was covered at the previous hearing which took place in February and March 2018 and, therefore, is subject to the principle of res judicata. In addition, the respondent submits that this claim has no reasonable prospect of success as the claimant has failed to specify any detriment.[12]The claimant submits that he took instruction from Employment Judge Hargrove and submitted a new claim in respect of the issues arising out of Access to Work and that Employment Judge Hargrove has confirmed this in his letter, so this claim should proceed.[13]In relation to the claims relating to the provision of a disabled toilet and car parking, the claimants submit that Employment Judge Hargrove had stated that that Tribunal would not decide anything after 29 March 2017 and that his understanding was that he could submit a new claim for any events taking place after that date.[14]The claimant submits that the respondent increased the incidence of harassment and victimisation after receiving the Judgment from Employment Judge Hargrove in that they refused to hold meetings with the claimant by using email and failed to understand what it is meant by Asperger’s, which resulted in the claimant taking sick leave from the end of March 2018. The claimant submits that the training was not for the benefit of the claimant but it was for the claimant’s managers and colleagues, therefore the claimant did not need to be in attendance at work for the Asperger’s awareness training to take place. However, the claimant submits that the respondent was not interested in the training and just wanted to drive the claimant out of work. I asked Mrs Shield why there were no details about the alleged harassment or the detriment in respect of the alleged victimisation claim in the further and better particulars, to which she replied that the barrister who had drafted the further and better particulars had not asked for specific details and that the claimant was in a poor mental state at the time he was providing instructions.[15]I asked the claimant what was meant by wrongful and unfair disciplinary action, to which Mrs Shield said the claimant did not want meetings to be held face-toface, but the respondent was been difficult and obstructive in doing this by email which resulted in the claimant going off sick with depression. Mrs Shield claims that the respondent was not reading the content of the claimant’s emails. Mrs Shield claims that if the respondent had procured the awareness training earlier the claimant would not have been bullied and victimised and he would not have been off sick and, therefore, he would not have been dismissed. With regard to the issue relating to the toilet, the claimant claims that a wooden bench was obstructing the door which the respondent then removed but this resulted in someone else having an accident in or around the first quarter of 2018.
The Law
[16]Rule 37 of the 2013 Rules state: “(1) at any stage of the proceedings, either on his own initiative or on the application of a party, the Tribunal may strike out all part of the claim or any response on any of the following grounds- (a) that it is scandalous or vexatious or has no reasonable prospect of success; …”[17]Rule 39 of the 2013 Rules state: “(1) where at a preliminary hearing (under Rule 53) the Tribunal considers that any specific allegation or argument in a claim or response had little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit of not exceeding £1000 as a condition of continuing to advance that allegation or argument. (2) the Tribunal shall make reasonable enquiries into the pain party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.”[18]I refer to the case of Anyanwu v South Bank Students Union [2001] 1 WLR 638 in which it was decided that discrimination cases are fact sensitive and should be judged on the merits.[19]I refer to the case of Machkarov v Citibank [2016] ICR 1121 in which it was decided that the claimants’ cases should be taken at their highest and where there are core issues of fact which need to be determined, they should not be decided without hearing oral evidence.
Conclusions
[20]Since submitting his ET1 form on 2 July 2018, the claimant has been dismissed from his employment with the respondent and the respondent has raised no objections to the claimant amending his claim to include a claim of unfair dismissal. Whilst the respondent has tried to argue today that that claim has little reasonable prospect of success because the reason for the claimant’s dismissal was capability and the claimant’s own evidence will be that he was absent from work from 4 June 2018 until the date of his dismissal, the claimant also has a claim under section 15 of the Equality Act 2010 arising from the same set of facts as the unfair dismissal claim. In the circumstances, taking the claimants pleadings at their highest and applying the guidance in Anyanwu, I find that this is an arguable claim and it cannot be said that it has no reasonable prospect of success.[21]The claim in relation to the delay in providing Asperger’s awareness training, as recommended by Access to Work, contrary to sections 20 of the Equality Act 2010, was not dealt with at the previous Employment Tribunal hearing. It is clear from the letter from Employment Judge Hargrove at page 134 the bundle that findings were not made on this specific issue at the previous hearing and, therefore, I find that it is not caught by the doctrine of res judicata and this claim should proceed to a full merits hearing, particularly as it appears that the claimant is arguing that the failure to provide this training at an earlier date contributed to the events which led to his dismissal. In all the circumstances, this is an issue that a full Tribunal can only make a decision on after hearing all the relevant evidence.[22]I find that the Employment Tribunal considered and made findings in relation to the claimant’s claim that the respondent failed to provide him with adequate disabled toilet facilities in the workplace, as set out at paragraph 12 of Employment Judge Hargrove’s decision. The claimant has today suggested that the respondent removed a bench from the bathroom which resulted in injury to others, although this is not pleaded in the claimant ET1 or in the further and better particulars produced by his legal representative. Employment Judge Hargrove found that “it is not possible or practicable for an employer to guarantee immediate access on demand to a disabled toilet. We are satisfied that there was adequate provision of disabled toilets at the premises. This is not a breach of section 15 or a failure to make reasonable adjustments.” In the circumstances, I find that this issue has already been determined by previous Tribunal and, therefore, is subject to the doctrine of res judicata/issue estoppel and stands to be struck out. Even if I am wrong, allegations raised by the claimant today do not, on the face of it, appear to amount to a detriment to the claimant, but rather a detriment to others and, as such, would stand to be struck out on the grounds of having no reasonable prospect of success.[23]I find that the Employment Tribunal considered and made findings in relation to the claimant’s claim that he was subject to a detriment because he was required to park in two parking spaces in the car park, as set out in paragraph 6.1 of Employment Judge Hargrove’s Judgment. In particular, Judge Hargrove made findings that he heard evidence that “on one occasion about two days after the move a facilities manager was observed pointing at the car and the way he had parked it. We do not accept that there was a breach of section 15 or section 20 in this respect and we do not accept that this amounted to a detriment.” In the circumstances, I find that this issue has already been determined by a previous Tribunal and, therefore, is subject to the doctrine of res judicata/issue estoppel and stands to be struck out.[24]I find that, taking the claimants pleadings at their highest, and applying the guidance in the cases of Anyanwu and Machkarov, it cannot be said that the claimant’s claims of harassment and victimisation have no reasonable prospect of success as the claimant refers to an end of year appraisal and communication between him and the respondent, in addition to the respondent’s internal processes leading to dismissal. I accept that there is much force in the respondent’s argument that the claimant has provided very minimal particulars in respect of the claims of harassment and victimisation, however, without hearing the evidence, it is not possible to say that the claims are bound to fail or have little reasonable prospect of success. A poorly argued claim is not the same as saying that a claim has little or no foundation in law. Whilst Employment Judge Hargrove made reference to the claims of harassment and victimisation in paragraph 15 of his Judgment, the claims appear to relate to the matters set out in paragraph 14 of that Judgment, i.e. poor timekeeping and the state of the claimant’s desk, which he found did not relate to the claimant’s disability. On the basis that the claimant’s current claim of harassment and victimisation appear to relate to his appraisal, communication with the respondent and the application of the capability/dismissal process, I find that the issues relating to harassment and victimisation, as currently pleaded, were not dealt with by the previous Tribunal and, therefore, are not caught by the doctrine of res judicata. In the circumstances, I find that the claims of harassment and victimisation should be determined by a full Tribunal after hearing all the evidence on the relevant issues. EMPLOYMENT JUDGE ARULLENDRAN
The Law
[25]During the claimant’s year-end appraisal his appraiser, Mr Moorhouse, did not make negative remarks to the claimant about his learning and communication style. Our findings in respect of this allegation are fully detailed above. In short, Mr Moorhouse’ remarks were essentially positive (574i): Mr Moorhouse referred to the claimant as being intelligent and having good technical understanding who could make a success of his role, increased his marking from 5 at the mid-year review to 4 at the year-end and recorded his intention to support him. Any negativity on the part of Mr Moorhouse during the year-end appraisal was limited to him noting the claimant’s slow progress and excessive use of his mobile phone, neither of which were therefore about his “learning and communication style”. In this regard the claimant suggested at the Tribunal hearing that he only used his mobile phone at work during the course of his knowledge transfer sessions when he would access the Notepad facility. He had never raised that explanation previously, however, and having balanced the evidence of him and Mr Moorhouse in this respect (the evidence of Mr Moorhouse being corroborated by documentary evidence) the Tribunal prefers his evidence and rejects this explanation of the claimant. Thus, the Tribunal finds that this reference by Mr Moorhouse to the claimant’s excessive use of his mobile phone is a genuine criticism of him using his phone during work time and is not related to his use of the Notepad facility during knowledge transfer. It became apparent during the hearing that the actual negative remark in relation to the year-end appraisal upon which the claimant relies in this respect came not from Mr Moorhouse but from feedback Mr Moorhouse obtained from SL. The Tribunal has recorded above that that feedback from SL was essentially constructive albeit the comment was made that the claimant, like everyone, could sometimes be distracted. Important points in connection with the assertion in this issue 25, however, are as follows: this remark was not made “by his appraiser”; at the time SL was not aware of the claimant having Asperger’s syndrome; the claimant has disregarded the otherwise positive feedback from SL and from JH; Mr Moorhouse did not take SL’s observation forward into the end of year review.[26]Both this issue and issue 27 are predicated upon the Tribunal having found in favour of the claimant in relation to issue 25 (as are the sub-paragraphs of that issue 25). As the Tribunal has not found in the claimant’s favour in relation to that issue we do not need to address these related issues. See 26 above.[28]This issue is drawn from paragraph 51 of the Further and Better Particulars submitted on behalf of the claimant (52) in which it is explained that the communications were ostensibly due to the claimant’s timekeeping and the time spent away from his desk, such that he felt as if his movements were being monitored to a much greater degree than his colleagues. On the last day of the hearing, Mrs Shield particularised this complaint by providing a list of documents and email chains showing communications mainly between Mr Moorhouse and the respondent’s HR Department. An example of this is contained in the chain of emails between the claimant and Mr Moorhouse and he with SC of the respondent’s HR Department (509 to 501). That email chain relates to the claimant expressing concerns that he was being subject to “monitoring and reporting back and incorrectly raising false concerns” and feeling as if he was “being watched and timed”. This email correspondence shows Mr Moorhouse seeking to obtain from the claimant further detail of these concerns and also raising issues relating to the claimant’s working hours and his having returned to work on 22 January 2018 from 3 weeks’ sick leave without informing Mr Moorhouse, and what the claimant had referred to as being his “ET stressors”. In the course of this email exchange Mr Moorhouse sought advice from SC of HR as to the content of draft emails he proposed to send to the claimant. The context for this is referred to in our findings above: namely that despite the adjustment regarding his working hours, the claimant was either late or failed to notify Mr Moorhouse of his anticipated lateness as had been agreed. A second example is an exchange of emails between Mr Moorhouse and LH of HR on 2 March 2018 (524), which begins with Mr Moorhouse asking, “I’m just after some guidance around Jamie’s end of year review please”. While writing, Mr Moorhouse took the opportunity to inform LH that the claimant was absent from work that day and although he had not heard anything from him he assumed that it was due to the snow which had caused the claimant to be absent the day before when he had contacted Mr Moorhouse.[29]This issue and issue 30 need not be addressed given our findings in relation to issue 31 below. See 29 above.[31]As indicated in our findings above, the Tribunal is satisfied as to the following. First, it was understandable that the claimant’s arrival times and other movements within the office were monitored but such monitoring was related to the claimant’s failures to comply with the terms of the reasonable adjustment regarding the timing of his arrival at work and notifying Mr Moorhouse that he expected to be late and was not related to the claimant’s disabilities. Secondly, it was perfectly reasonable, indeed proper, for Mr Moorhouse to refer personnel issues such as those exemplified in paragraph 28 to HR and seek appropriate advice. It is also noted that although Mr Moorhouse was seeking this advice it was not something of which the claimant was aware at the time. For these reasons, the Tribunal is not satisfied that the communications between primarily Mr Moorhouse and the respondent’s HR advisers constituted unfavourable treatment of the claimant.[32]Once more, given our findings in relation to issue 31, this issue and issues 33 to 35 need not be addressed. See 32 above. See 32 above.[35]See 32 above. As a final aspect of the Tribunal’s consideration of each of the above four other complaints of discrimination arising from disability, the Tribunal again addresses the above points in the approach in Pnaiser. It can do so relatively simply, however, since only subparagraph (a) of that approach is relevant in respect of those four complaints. As explained above, the Tribunal is not satisfied that the substance of the first three complaints occurred at all: the respondent did not notify the claimant’s colleagues to avoid verbal communication with him; the respondent did not suggest that he disclose and explain his Asperger’s condition to his colleagues; the claimant’s appraiser did not make negative remarks to the claimant about his learning and communication style. As such, the Tribunal finds that there was no unfavourable treatment of the claimant by the respondent in respect of those first three complaints. As to the fourth of the complaints we have found that communications were sent to the respondent’s HR Department but there was a reasonable and proper basis for those communications and, therefore, once more, there was no unfavourable treatment of the claimant by the respondent in this respect. In light of these findings, it is unnecessary for the Tribunal to consider the remaining points in the approach in Pnaiser. In summary and conclusion of these four complaints, therefore, the Tribunal is satisfied that the respondent did not discriminate against the claimant as described in section 15 of the 2010 Act. Harassment – section 26 of the 2010 Act.[36]Although this issue relates to a complaint of harassment, the conduct relied upon by the claimant in subparagraphs a. to d. is precisely that upon which he relies in relation to the four complaints of discrimination arising from disability considered in respect of issues 19, 22, 25 and 28 above. This issue 36 is whether the respondent engaged in that conduct. The Tribunal has already found that it did not.[37]In light of that finding is not necessary for the Tribunal to consider this issue or issue 38.[38]See 37 above. Victimisation – section 27 of the 2010 Act.[39]For the purposes of section 27(2) of the 2010 Act, four protected acts are relied upon by the claimant in the Further and Better Particulars submitted on his behalf; we repeat at the time when he was legally represented. Those acts are his submissions of grievances in August 2017 and July 2018, his presentation of the 2017 Claim and his communication with the respondent’s Chief Executive in April 2018. Two preliminary points arising from this. The first is that the first of those protected acts, the grievance lodged in August 2017, was considered as part of the claimant’s 2017 Claim and, therefore, the Tribunal is satisfied that it should not be re-litigated in these proceedings. The second preliminary point is that in the written submissions that Mrs Shield handed in towards the close of the hearing she had added the three further communications set out above upon which she sought to rely as being protected acts. In this regard, the Tribunal accepts the submission made on behalf of the respondent that these additional acts were not raised in the Further and Better Particulars that had been submitted on behalf of the claimant (or at any other time prior to the hearing commencing) and were not raised in the claimant’s written or oral evidence at the hearing or in questions asked of the respondent’s witnesses. As such, the Tribunal is satisfied that they cannot reasonably be pursued as potentially protected acts at such a late stage in the proceedings.[40]Subparagrapha. of this issue is whether Mr Moorhouse and/or the respondent’s HR Business Partners made the claimant the subject of disciplinary proceeding. The short answer to that is that they did. This is borne out by the letter of 10 August 2017 (229a) inviting the claimant to attend a formal disciplinary meeting to consider issues of his timekeeping, failure to attend team meetings and demonstrating aggressive behaviour. Subparagraphb. of this issue is whether Mr Moorhouse and/or the respondent’s HR Business Partners gave the claimant warnings about his conduct. The claimant has not particularised in the Further and Better Particulars of his claim, his witness statement, questions he asked of the respondent’s witnesses or in submissions made on his behalf precisely to what he refers in the nature of warnings. As indicated in our findings above there have been occasions upon which Mr Moorhouse took the claimant to task about his late arrivals to work and other absences. The Tribunal is satisfied that those discussions and emails probably do not constitute “warnings” in the normal sense in which that word would be used in relation to an employment relationship; they were simply Mr Moorhouse discharging his role as the claimant’s line manager. Additionally, on the evidence available to the Tribunal, Mr Moorhouse was justified in the approach that he adopted. The claimant did, however, receive two formal warnings. The first was on 15 May 2018 (687) and was a written warning for misconduct, being the claimant’s failure to arrive at work at his designated time and failing to follow the agreed procedure for reporting anticipated lateness (687). The second was on 29 May 2018, which was a written warning for the claimant’s attendance (731). Thus, this warning was not about the claimant’s “conduct” in the normally accepted sense in which that word is used in relation to “disciplinary proceedings” referred to in subparagraph a.[41]As to subparagrapha. of issue 40, the Tribunal is satisfied on the evidence available to it that when the invitation to the disciplinary meeting was sent to the claimant the respondent had reasonable grounds for initiating that disciplinary action, and the respondent did not do that because the claimant had done any protected act. As to subparagraphb. of issue 40, the Tribunal is similarly satisfied that the respondent had reasonable grounds for giving the warnings to the claimant (whether that be the informal warnings or the two formal warnings referred to in the immediately preceding paragraph) and did not do so because he had done a protected act. For completeness, the Tribunal notes that the letter of 10 August 2017 inviting the claimant to the disciplinary meeting preceded two of the protected acts relied upon by the claimant (his grievance of July 2018 and his letter to the respondent’s Chief Executive in April 2018) and, self-evidently therefore, the disciplinary proceedings could not have been because the claimant had done either of those protected acts; similarly, the two formal warnings referred to above were each issued in May 2018 and the grievance of July 2018 came after those warnings and, therefore, they could not have been given to the claimant, because he had done that protected act. Conclusion 15. The unanimous judgment of the Employment Tribunal is as follows:15.1 The claimant’s complaint under section 111 of the 1996 Act that his dismissal by the respondent was unfair, being contrary to Section 94 of that Act by reference to Section 98 of that Act, is well-founded but only to the limited extent that it was outside the range of reasonable responses of a reasonable employer for Mr Smith not to have considered the claimant’s email of 5 March, which led to him proceeding to dismiss the claimant by letter of 11 March 2019.15.2 The claimant’s complaint that the respondent unlawfully discriminated against him by treating him unfavourably because of something arising in consequence of his disability contrary to sections 15 and 39 of the 2010 Act is not well-founded and is dismissed.15.3 The claimant’s complaint that, contrary to section 21 of the 2010 Act, the respondent failed to comply with its duty under section 20 of that Act to make adjustments is not well-founded and is dismissed.15.4 The claimant’s complaint that the respondent harassed him contrary to section 26 of the 2010 Act is not well-founded and is dismissed.15.5 The claimant’s complaint that the respondent victimised him contrary to section 27 of the 2010 Act is not well-founded and is dismissed.15.6 This case will now be listed for a one-day remedy hearing, in person, in respect of the claimant’s successful complaint of unfair dismissal. EMPLOYMENT JUDGE MORRIS
Conclusion
[1]As at the liability hearing, at the remedy hearing the claimant was represented by his mother, Mrs C Shield, who called the claimant to give evidence. The respondent was again represented by Mr M Brien, of Counsel, who called Mr D Smith, Digital Services Practice Lead, to give evidence on behalf the respondent.[2]The evidence in chief of or on behalf of the parties was given by way of written witness statements: that of the claimant comprising some seventeen pages with a six-page attachment; that of Mr Smith comprising three pages.[3]The claimant is a disabled person as that term is defined in section 6 of the Equality Act 2010. As had been the case at the liability hearing, as an adjustment to ameliorate the effects of one of his impairments, namely autism/Asperger’s syndrome, the Tribunal agreed that questions to the claimant would be asked and answered using Mrs Shield as an intermediary.[4]The Tribunal had before it a bundle of documents compiled for the purposes of the remedy hearing, which comprised 76 pages and included the Schedule of Loss that had been submitted by the claimant to the liability hearing (and which was updated by Mrs Shield during a short adjournment) and a Counter-schedule of Loss prepared by the respondent in respect of the remedy hearing.[5]The Tribunal also had before it the bundle of documents compiled for the purposes of the liability hearing. The numbers shown in parenthesis below refer to page numbers in that bundle.[6]At the conclusion of the evidence, the parties’ representatives made submissions, Mrs Shield both orally and in writing. The Tribunal fully considered all the submissions made and took them into account in coming to its decision. Initial decision as to remedy and its reconsideration[7]At the liability hearing the judgment of the Tribunal was that the claimant’s complaint under section 111 of the Employment Rights Act 1996 (“the Act”) that his dismissal by the respondent was unfair was well-founded. That being so, the Employment Judge explained to the claimant what orders may be made by the Tribunal in his favour and the claimant opted for the remedy of compensation.[8]As such, the Tribunal made such an award of compensation in accordance with section 118 of the Act.[9]Shortly after the Employment Judge began to announce the decision of the Tribunal as to remedy the claimant and his mother left the hearing room. She explained that the claimant was too upset to remain and that they would wait for the written reasons of the Tribunal, which the claimant subsequently requested.[10]As explained more fully below, the Tribunal decided that the claimant would have been fairly dismissed on 10 April 2019, that being the effective date of termination of his employment. That being so, the principal element of the compensatory award that, at the remedy hearing on 11 March, the Tribunal considered making in the claimant’s favour related to the pay that he might have received from the respondent in respect of the period of notice of the termination of his employment. At the remedy hearing it appeared that the general rule contained in section 88 of the Act (that if an employee is incapable of work because of sickness he must be paid his normal pay during the notice period notwithstanding that prior to being given notice his pay might have been reduced possibly even to nil, as in this case) did not apply given the exception contained in section 87(4) of the Act.[11]In this case, the claimant had exhausted his entitlement to sick pay from 1 January 2019 and was not receiving any pay either the time of his actual dismissal on 11 March 2019 or the date of the fair dismissal as determined by this Tribunal of 10 April 2019. That being so, at the remedy hearing, it had appeared that the claimant would not have been entitled to receive any pay during his notice period and the Tribunal therefore calculated the compensatory award on that basis. That is to say that as the claimant would not suffer any loss of pay in respect of his notice period following on from his fair dismissal on 10 April 2019 there was no basis for an award of compensation in that respect.[12]In the course of drafting the written reasons for the decision of the Tribunal that the claimant had requested, the Employment Judge identified that the above exception did not apply as the contract of employment between the respondent and the claimant provided that, given that the claimant had four years’ continuous employment, he was entitled to four weeks’ notice of termination; that equating to the minimum period of statutory notice provided for in section 86 of the Act.[13]In these circumstances, in accordance with rule 73 of the Employment Tribunal Rules of Procedure 2013, the Tribunal wrote to inform the parties that, on its own initiative, it proposed to reconsider the Judgment made on 11 March 2021 as to do so was considered to be necessary in the interests of justice. The above issue was the principal reason by reference to which the Tribunal decided to reconsider its Judgment but the parties were informed that the opportunity was to be taken to review two other aspects of the Judgment. Thus three reasons were given to the parties being as follows:13.1 The calculation of compensation by reference to the claimant’s loss in respect of his period of notice.13.2 Whether the claimant should be compensated for continuing loss, being the difference between the net pay that he received from the respondent and that which he received from his new employer.13.3 Whether, if the compensatory award were to be increased beyond that awarded at the remedy hearing, the Recoupment Regulations would be applicable.[14]The Tribunal then engaged in correspondence with the parties during the course of which the principal matters that were addressed included the following:14.1 the parties’ respectively made submissions in relation to the above three issues;14.2 the claimant explained the steps he had taken to mitigate his financial losses and provided a revised Schedule of Loss;14.3 the claimant clarified the benefits that he had received since his dismissal by the respondent;14.4 both parties stated that they were content for the reconsideration to be undertaken by the Tribunal without the need for a further hearing, the claimant explaining that due to his mental health he was not in a fit state to attend and be subjected to further anxiety and stress.[15]In light of the parties’ agreement at paragraph 14.4 above the Tribunal decided that a reconsideration hearing was not necessary in the interests of justice and, in accordance with Rule 72(2), gave the parties a reasonable opportunity to make further written representations.[16]All of the above matters we brought into account by the Tribunal. On a point of detail, in respect of the matter referred to at paragraph 14.2 above, the claimant’s evidence was that he had commenced alternative employment with a new employer on 13 May 2019, in respect of which he had actually been approached by that new employer prior to his dismissal by the respondent. That had been temporary employment that had terminated in June 2020. The pay that the claimant received from his new employer was £351 net per week, which is £70.07 net per week less than the £421.07 that he had received from the respondent. Decision on reconsideration[17]For the reasons set out both above and below, having undertaken its reconsideration the Tribunal decided, in accordance with Rule 70, that in respect of the matters referred to at paragraphs13.1 and 13.3 above its original decision should be varied whereas, in respect of the matter referred to at paragraph13.2 above, its original decision should be confirmed.[18]The remainder of these Reasons sets out the reasons for the Tribunal’s Judgment as to Remedy as varied upon reconsideration. Award of compensation[19]As set out above, at the remedy hearing the claimant opted for the remedy of compensation and, therefore, in accordance with section 118 of the Act, the Tribunal makes such an award consisting of a basic award and a compensatory award as particularised below. Basic Award[20]The parties were agreed as to the calculation of the basic award. At the time of his dismissal, the claimant was 30 years of age and had four years’ continuous employment with the respondent. That, therefore, produces a ‘multiplier’ of 4. His gross weekly wage was £519.23. Thus, his basic award is £2,076.92 (£519.23 x 4). There was no dispute that the claimant is entitled to that basic award without any adjustment by reference to, for example, contributory fault or the ACAS Code of Practice on Disciplinary and Grievance Procedures (2015). Compensatory Award[21]In this connection the Tribunal first reminds itself that section 123 of the Act provides as follows: “…. 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 insofar as that loss is attributable to action taken by the employer”.[22]The Tribunal accepts the evidence given by Mr Smith in the following material respects:22.1 Had he accepted as genuine the claimant’s indication in his email of 5 March 2019 (1011) that he would return to work on 1 April 2019, he would have begun to prepare for that. Such preparation would have included a back to work plan (including goals, review dates and training) and agreeing a phased return to work. These matters would have been discussed and agreed with all relevant parties including the claimant, his line manager, his task manager and others such as HR. At the liability hearing Mr Smith referred to these matters as being him “undertaking the art of the possible”.22.2 Mr Smith would not, at that point, have referred the claimant to OH or have undertaken a risk assessment or a well-being assessment as there had been no material change in the claimant’s circumstances since the last report.22.3 The above process would have taken at most three weeks.22.4 As such, the earliest date upon which the claimant would have returned to work would have been that proposed by him of 1 April 2019.[23]All the above is consistent with the Tribunal’s findings of fact at the liability hearing.[24]In accepting the above evidence of Mr Smith the Tribunal rejects the alternative evidence given by the claimant at the remedy hearing that although it would have been difficult, he would nevertheless have returned to work on 1 April even if the above was all that Mr Smith had done and, therefore, that the conditions he set out in his email of 5 March (1011) in respect of a further referral to OH and the respondent undertaking both well-being and stress assessments had not been met. The relevant section of that email is as follows: “…. dependent upon OH referral would predict that I should be in a position to return to work around 1st April 2019. However, full well-being, stress risk assessment and OH would need to be completed prior to me committing to a return.” (1012)[25]The above evidence given by the claimant at the remedy hearing that he would have returned to work on 1 April even if the respondent had not made a further referral to OH or undertaken both a well-being assessment and a stress assessment was inconsistent with the evidence he gave at the liability hearing and the contemporaneous documents and, therefore, with the Tribunal’s findings of fact at that liability hearing. In that respect, an excerpt taken from paragraph 13 of the Tribunal’s Judgment on Liability bears restating here: “…. the Tribunal considers that after Mr Smith had done everything he said he would have done by way of “the art of the possible” and reverted to the claimant to seek a commitment for a return to work date, the claimant would have remained dissatisfied with the respondent’s response to the conditions he had set for his return and would not have actually given such a date or returned to work.”[26]The claimant’s evidence in this respect at the remedy hearing is also inconsistent with the fact that he did not raise the position that he now adopts at that time, or at any time during his notice period.[27]On the contrary, the claimant’s conditions for a return to work on 1 April not having been met by the respondent the Tribunal is satisfied that he would have refused to return to work; not least because the respondent not meeting his conditions would have fuelled his dissatisfaction with and mistrust of the respondent and his managers.[28]Thus, the Tribunal is satisfied that the claimant would either have informed the respondent, in advance of 1 April, that he would not be returning to work on that date or would simply have failed to attend work on that date.[29]In either case, that would have caused the respondent to re-engage the attendance management process, the ‘trigger points’ in that process already having been met; furthermore, given everything that had gone before, from that point the process would have been quickly concluded.[30]The Tribunal accepts Mr Smith’s evidence that the letter inviting the claimant to an attendance review hearing would have been sent fairly soon after that: either that day (1 April) or more likely the following day. That being so, the Tribunal’s assessment is that the invitation letter would have been received by the claimant on Wednesday 3 April and would have given him five clear days’ notice of the hearing, which would have taken place on 9 April 2019.[31]In all the circumstances, dismissal would have ensued that day and the Tribunal is satisfied, for the reasons set out in its Liability Judgment, that it would have been a fair dismissal. In all the circumstances, the Tribunal is satisfied that, as happened on the last occasion, Mr Smith would not have informed the claimant orally of his decision but would have done so in writing that day. The Tribunal considers, therefore, that the claimant would thus have been informed of his dismissal on 10 April 2019.[32]The Tribunal is satisfied that in all the circumstances surrounding this case that date of 10 April 2019 would have been the effective date of termination of the claimant’s employment and that, rather than his employment continuing until the end of the notice period, he would have been paid in lieu of is entitlement to notice.[33]In relation to the dismissal of the claimant by letter of 11 March 2019 (1029) he was given five weeks’ notice. As intimated above, that was one week more than the claimant’s entitlement, whether by reference to his contract of employment or the statutory minimum. In the written representations submitted on behalf of the respondent in connection with this reconsideration, it is submitted, “It appears to be an anomaly from the Respondent’s side as to why the Claimant was provided with more notice than he was entitled to contractually upon his dismissal.” Whether it is an anomaly or not, the Tribunal is satisfied that in the same way as the claimant was given five weeks’ notice in the letter of 11 March 2019, he would have been regarded as being entitled to the same period of five weeks’ notice when Mr Smith would have written his decision letter in April 2019. The Tribunal assesses that period of notice, in respect of which the claimant would have been paid in lieu, as expiring on 15 May 2019, being five weeks after it considers that the claimant would have received the letter of dismissal on 10 April 2019.[34]As indicated above, pursuant to section 88 of the Act, notwithstanding that the claimant’s pay had reduced to nil given that he had exhausted his entitlement to sick pay as a consequence of his lengthy absence from work, the payment in lieu of his five weeks’ notice period would fall to be calculated by reference to his normal pay.[35]The parties are agreed that the claimant’s contractual net weekly pay was £421.07. In respect of the five-week period, therefore, that produces a sub-total of £2,105.35 (£421.07 x 5). Additionally, the respondent’s Counter-schedule of Loss disclosed that “the Claimant received a Core Allowance of £125, and a LTD Allowance of £8.33 per month, as a result of his TUPE transfer”. Thus, a combined total of those two allowances of £30.77 a week. In respect of the fiveweek period that produces a further sub-total of £153.85 (£30.77 x 5). In respect of the five-week period, therefore, the Tribunal is satisfied that the claimant would have been paid the combination of those two sub-totals, namely a total payment in lieu of notice of £2,259.20. The Tribunal awards that amount as part of the claimant’s compensatory award.[36]In its Counter-schedule of Loss the respondent concedes other elements that would form part of the compensatory award as follows:36.1 “Employers pension contributions at 6% = £135 per month.”36.2 “Loss of statutory rights £500”.[37]The respondent has, however, calculated pension loss by reference to one month whereas, for the same reasons as are outlined above, the Tribunal’s approach is to compensate the claimant for such pension loss during the fiveweek notional notice period; namely, £155.75.[38]A further element that would feature in many cases where a tribunal considers that, as in this case, the employee would have been dismissed fairly soon after the actual date of dismissal is that the employee would typically be compensated for his or her loss of income from the date of the unfair dismissal until the date upon which it is considered that a fair dismissal would have been effected.[39]In this connection, the Tribunal has applied the decisions of the House of Lords in Polkey v AE Dayton Services Ltd [1988] ICR 142 and of the Employment Appeal Tribunal in Young’s of Gosport Ltd v Kendell [1977] ICR 907 and Software 2000 Ltd v Andrews [2007] IRLR 568; albeit noting that in respect of that latter decision the statutory Dismissal and Disciplinary Procedures are no longer applicable. In that decision it was stated that if the employer has shown that the employee would have been dismissed if a fair procedure had been followed there were five possible outcomes. The Tribunal is satisfied that the fourth of those outcomes applies in this case, namely, “The tribunal may decide that employment would have continued, but only for a limited period.”[40]In this case, the Tribunal is satisfied that such a limited period would have been the time between the date of Mr Smith’s actual decision to dismiss the claimant on 11 March 2019 and the date upon which the Tribunal is satisfied that he would have effected a fair dismissal of the claimant on 10 April 2019. In many cases in such circumstances, an employee would then be compensated for his loss of earnings in that period. In this case, however, as stated above, as the claimant had exhausted his entitlement to sick pay from 1 January 2019, and he was therefore not receiving any income from the respondent during that period of approximately one month, there is no loss of earnings in respect of which he can be compensated.[41]As set out above, by the end of the five-week notional notice period the claimant had secured new employment on 13 May 2019 in relation to which his net weekly pay was £70.07 less than that which he had received from the respondent.[42]This gives rise to the second of the matters considered by the Tribunal as part of its reconsideration of whether the claimant should be compensated for continuing loss, being the difference between the net pay that he received from the respondent and that which he received from his new employer; in respect of which it sought and obtained representations from the parties.[43]An important consideration in this regard is that, as set out above, section 123 of the Act provides amongst other things that in assessing the compensatory award the tribunal must have regard to loss sustained by the claimant “in so far as that loss is attributable to action taken by the employer”.[44]As found above, the Tribunal is satisfied that the claimant would have been fairly dismissed on approximately 10 April 2019 and that would have been the effective date of the termination of his employment. That being so, that date would represent the ‘cut-off point’ for any loss attributable to action taken by the respondent; subject to the claimant receiving a payment in lieu of five weeks’ notice calculated up to 15 May 2019 as set out above. That being so, the Tribunal is satisfied that it cannot be said that any loss sustained by the claimant beyond the effective date of the termination of his employment can be attributable to action taken by the respondent. That applies to the principal matter of the difference between the claimant’s pay from his new employer and his pay from the respondent. It applies equally to other elements that the claimant had included in his Schedule of Loss such as his pension loss in that new employment or is continuing loss arising since the end of that employment.[45]As such, and having considered the representations from the parties, the Tribunal is satisfied that the original decision it made on 11 March 2021 to the effect that the claimant should not receive an award of compensation in respect of continuing loss should be confirmed. In essence, for the reasons set out in its Liability Judgment and above, the Tribunal is satisfied that the claimant’s dismissal on 10 April 2019 would have been a fair dismissal. As such, again applying the decisions in the case authorities set out above, given that this Tribunal has found that the claimant would have been dismissed in any event on 10 April 2019 with a payment being made to him in lieu of his entitlement to notice, the Tribunal is satisfied that he should not be awarded compensation in respect of any future loss beyond the effective date of termination of his employment on 10 April except in relation to the compensation in respect of a payment in lieu of the notional notice period ending on 15 May 2019.[46]Taking the above elements together, therefore, the Tribunal has calculated the total compensatory award to be £2,914.95 that comprising the following:46.1 total payment in lieu of notice of £2,259.20;46.2 employer’s pension contributions of £155.75;46.3 loss of statutory rights of £500.[47]Thus, drawing together the basic award of £2,076.92 and the compensatory award of £2,914.95 the total award of compensation that the Tribunal orders the respondent to pay to the claimant is £4,991.87.[48]The third and final reason why the Tribunal considered it appropriate to reconsider its original decision was whether, if the compensatory award were to be increased beyond that awarded at the remedy hearing, as it has been, the Recoupment Regulations would be applicable. The Tribunal did consider those Regulations at the remedy hearing on 11 March 2021 but given that it appeared at that time that the only component parts of the compensatory award were pension loss of £135 and loss of statutory rights of £500 it was agreed that the Regulation should not apply.[49]That notwithstanding, it is clear from the Regulations that payments under an award of compensation for unfair dismissal such as the Tribunal has made in this case are subject to the Regulations; the matter to which the prescribed element is attributable being described as, “Any amount ordered to be paid and calculated under section 123 [i.e. of the Act] in respect of compensation for loss of wages for a period before the conclusion of the tribunal proceedings”.[50]Under section 27 of the Act “wages” is defined for the purposes of that Part of the Act as meaning any sum payable to the worker in connection with his employment including “any other emolument referable to his employment”. Adopting that approach, the Tribunal is satisfied that the amount referred to in the Regulations comprises the award of compensation in respect of the payment in lieu of notice of £2,259.20 plus the employer’s pension contributions of £155.75: a total of £2,414.95.[51]Thus, the Recoupment Regulations apply to the above award of compensation, details of which are set out in the Annexure to this Judgment, in respect of which the Tribunal sets out the following particulars:51.1 the monetary award is £4,991.87;51.2 the amount of the prescribed element is £2,414.95;51.3 the dates of the period to which the prescribed element is attributable are 10 April 2019 to 15 May 2019;51.4 the amount by which the monetary award exceeds the prescribed element is £2,576.92. EMPLOYMENT JUDGE MORRIS