Ms Wan Kit May Leung v Oriental Merchant (Europe) Ltd: 2503361/2018
EMPLOYMENT TRIBUNALS
Case No 2503361/2018Venue North ShieldsHearing 8-11 October (deliberations 29 October}2019
Between
Ms Wan Kit May LeungClaimantOriental Merchant (Europe) LtdRespondent
Before
Employment Judge GarnonDate 30 October 2019
JUDGMENT
[1]The claim of direct discrimination because of age, resulting in dismissal and subjection to other detriment, is well founded.[2]The claims of harassment by conduct related to the protected characteristic of religious belief on or about 24 April and 12 June 2018 and by conduct related to the protected characteristic of race on or about 13 June 2018 are well founded.[3]Remedy will be decided on a date to be fixed.[4]The remaining claims are not well founded and are dismissed. REASONS ( bold print is ours for emphasis and italics are quotations) 1 Introduction and Issues 1.1. The claimant was employed by the respondent from 9 October 2017 as a Sales Administration Assistant (SAA). She was dismissed on 13 July 2018. By a claim form presented on 2 November 2018, following Early Concilaition from 1 August to 1 September, she brought complaints of(i) direct discrimination because of the protected characteristics of age, race, religious belief and “perceived” disability resulting in dismissal and subjection to other detriment(ii) victimisation resulting in dismissal and subjection to other detriment(iii) harassment related to the protected characteristics of race and religious belief(iv) automatically unfair dismissal because she made a protected disclosure and(v) an uplift to awards under s. 38 Employment Act 2002 for failure to provide a statement of change of terms and conditions. 1.2. The claimant, born on 8 July 1970, is of Hong Kong Chinese origin, her first language is Cantonese, she is a devout Christian and relies on “stress” as the perceived disability. 1.3. At a Preliminary Hearing on 14 February 2019 Employment Judge Shore ruled a transcript of a Skype meeting on 10 July 2018 should be admitted in evidence despite the respondent’s objection to it so being. He adopted the parties’ agreed list of issues but we discussed and refined them at the outset. The right not to be unfairly dismissed in section 94 of the Employment Rights Act 1996 (“ERA”) does not apply if an employee has less than 2 years service ending with the effective date of termination but section 108 (3) sets out exceptions including section 103 A which applies if the principal reason for dismissal is that she made a protected disclosure. Where an employee does not have 2 years service, she has the burden of proving the principal reason was the making of the protected disclosure (Smith v Hayle Town Council [1978] IRLR 413 affirmed in Ross-v-Eddie Stobbart). The only basis upon which she can succeed is if the Tribunal finds that. If it does, the dismissal is automatically unfair. If not, no matter unfairly the matter was handled, the claim will fail. There is no claim of subjection to detriment short of dismissal. The respondent does not accept a protected disclosure was made but, if we find one was, accepts it was made in accordance with section 43C to her employer. 1.4. With those points in mind, the liability issues are 1.4.1. Did the claimant make one or more disclosures of information ? 1.4.2. Did she reasonably believe (i) they tended to show the relevant failure pleaded (Ms Ephraim agreed the only one pleaded is that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject) and (ii) the making of the disclosure was in the public interest? 1.4.3. Was the principal reason for dismissal that she had made a protected disclosure? 1.4.4. Did the respondent treat the claimant less favourably than it treated or would have treated (i) a younger employee (ii) an employee of Malaysian or Singaporean origin (iii) a non-Christian employee (iv) an employee who was not perceived as having a disability? 1.4.5. If so, did it dismiss or subject her to any other detriment, at least in part, for that reason? 1.4.6. Did the respondent engage in unwanted conduct relating to race or religious belief which had the purpose or effect of (a) violating the claimant’s dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for her? 1.4.7. Did the claimant, by raising an informal grievance about the behaviour of Venus Teng do a protected act or did the respondent believe she had done or may do a protected act? 1.4.8. If so, did it dismiss or subject her to any other detriment, at least in part, for that reason? 1.4.9. Were there changes in the claimant’s terms and conditions of employment in the relevant period which required a statement of changes to marit an increase to any award under s 38 Employment Act 2002? 2. Findings of Fact 2.1. Due to similarity of some family names, we shall in these reasons refer to some people by forenames to avoid confusion. We heard the claimant and, for the respondent, Ms Venus Teng (“Venus”) manager of the UK administrative office in Gateshead, Ms Fei Li Toh (“Fei”) a SAA there, Mr Clement Lee (“Clement”) Head of UK operations, and Mr Cyril Cheang (“Cyril”) Global HR Manager. Venus was born on 7 May 1983, raised in Kuala Lumpur, Malaysia and is fluent in English, Malay and Mandarin. Fei was born on 10 May 1996, raised in Singapore and is fluent in English and Mandarin. Clement was born on 28 September 1947, raised in Hong Kong and is fluent in English and Cantonese. Cyril was born on 15 May 1965, raised in Singapore and is fluent in English and Mandarin. Those fluent in Mandarin speak some Cantonese and vice versa. Cyril is based in Melbourne, Australia, as is Clement for half the year .They and Venus are Christian. All witnesses gave evidence in English which they spoke well but their responses to questions were a little slower than would be expected of people speaking their first language. We drew no adverse inference from hestitency in replies. 2.2. After being interviewed on 13 September 2017 by Cyril, the claimant was offered a job as a SAA on 28 September. She was 47 at the time. The respondent knew of her Hong Kong origin and that she was a practising Christian. She started on 9 October 2017. The office hours were 8.30am - 5pm initially but changed to 9am - 5.30pm in November 2017. 2.3. The respondent provides over 600 products to 250-300 Chinese supermarkets in the UK. Its European base is in the Netherlands through which products are imported. The claimant’s duties included confirming orders; chasing order confirmation from Sales Representatives (SRs) and amending orders. She also responded to customer queries and complaints, liased with transport companiesand handled the mail 2.4. She was told when interviewed to report to Teresa Lok, the Assistant Finance Manager who travelled from Australia to train her to use the Systems Application and Products ("SAP") database, and in how the office worked. Michael Ho was the Sales Team Manager. Clement was in overall charge of the UK office. 2.5. The claimant worked full-time. There were 2 part-time staff, Christine Tan (“Christine”) who worked 3 days a week), and a Taiwanese woman, Julie who worked 2 days a week. The office atmosphere was fine in the beginning. Venus was not always there. The claimant handled orders until the generation of the purchase order (PO), then the part-time staff handled them until delivery, uploading them to the Netherlands warehouse and dealing with logistics. In a meeting on 3 November 2017, Clement and Ms Lok said staff should work with each other, and, if one’s workload was too heavy, share the work. This accorded with their flexible job descriptions. 2.6. When Ms Lok returned to Australia in November 2017, the claimant was informed by Clement she would now report to Venus who would be in charge of the Gateshead office. This was confirmed at a UK team meeting on 8 January 2018. Venus had been a SR for some time and earned her promotion to manager as it was felt she would be the best person to run the Gateshead office given her experience in the field. Her role was to manage the staff in Gateshead but she too would do some administrative work. 2.7. The UK based SR’s go out and secure business from retailers . The SAAs would liaise with them the Netherlands and the logistics companies to ensure the products bought were confirmed as to quantities and any variations up to the point of delivery. Wholly absent from the response form and the statements of any of the respondent’s witnesses was Clement’s oral evidence on Day 3 of the hearing that (a) the respondent shut its UK office in London in about June 2017 and after 2 months closure relocated it to Gateshead partly to be near where Venus lived, though Cyril later explained there were many other business reasons for leaving London (b) Venus was with Teresa at the claimant’s training and after it expressed the view the claimant may find it difficult to work under her management and (c) Venus felt insecure having been promoted with fewer qualification than the claimant and other employees. 2.8. Mornings were busy as 11.30am was the deadline for uploading orders to the Netherlands for dispatch that day. “Order confirmation” involved generating a list of customers to the SRs, chasing them to call the customers to confirm the orders and any amendments and sening the amended order back to the customer for confirmation. Then the claimant generated the PO. She maintained her own paper version of the order details to make it easier for colleagues to check and find them. She did this of her own initiative. Only Venus was authorised to contact the Australia office. 2.9. The claimant heard Venus speaking with Ms Lok and Clement about not being happy with Julie’s work When she repeated her concerns in January, Cyril dismissed Julie on the same day for failing her probationary period. Venus told the claimant she had passed her probationary period which was confirmed by letter on 15 January 2018. The claimant asked when her appraisal would be completed, and her salary adjusted. Venus did not answer but produced a document for her to sign. The claimant did not as she was waiting for the answers, which shows she did not unquestioningly do everything Venus asked. The document was the appraisal and showed the claimant as 'consistently exceeding all expectations' or 'exceeding most expectations' in every category. The only note for improvement was to improve her Mandarin language skills. To do the job well, staff need to speak English, Mandarin and Cantonese. To this point there is no allegation of any unlawful act, but tension existed betweenthe claimant who with several qualifications including teaching mathematics and a Masters Degree in Education and experience as a secretary would have initiative, and Venuswho wanted all her subordinates to do as they were told--no less and no more. Clement said he knew of Venus’ doubts about the claimant but, not wanting to “stir things up”, did nothing. 2.10. In a meeting on 30 January 2018 with Clement, Venus and Christine, the claimant proposed changing working hours back to 8.30am-5pm, so they would have more time to upload orders before 11.30. Clement statement says the request was so the claimant could car share with a colleague but in oral evidence he agreed that was a by product of the change not the reason the claimant proposed it which was her using initiative for the good of the company. During the meeting, Clement said they needed to replace Julie, and the Managing Director, Bernard Tat Kin Yiu wanted to hire 'fresh university graduates'. The claimant interpreted what he said as being young employees were willing to work longer hours, and Malaysians were more willing to work hard - including over the weekend and it was because of these factors Mr Yiu promoted Venus. The conversation was in Cantonese. Clement’s statement says the claimant was hired when younger candidates applied and his saying he would rather hire university students for the vacant part-time position was only because they can be more flexibile in hours. As for his mentioning Malaysians, his statement says he does not know where the claimant got this from and in his oral evidence he started by saying her account was “ fabrication” . Venus corroborated this. Under questioning, Clement said he did, at that meeting, describe Venus as a “Malaysian girl” who worked very hard 7 days a week. He said every other member of staff should obey and support her. Different people may give different accounts of the same event due to variations in their recollection and/or perception. We find the claimant’s account credible but she misinterpreted Clement as saying the respondent wanted to employ young people instead of older applicants and Malaysains instead of other nationalities. Both Venus and Clement were, on several points evasive, equivocal and sometimes self contradictory. Eventually Clement said his inaccurate witness statement was influenced by him feeling the claimant was accusing him, in her claim form though not before, of being racist and ageist. 2.11. A recurring feature in this case is the respondent’s witnesses in their statements and initially in oral evidence, saying something which is best improbable, at worst shown to be false, and accusing the claimant of lying about events which they could have said simply represented the claimant misunderstanding something . They chose to deny nearly all her allegations rather than accepting them in part and tendering an explanation. 2.12. Clement confirmed the change in working hours suggested by the claimant in February, with effect from 1 March 2018 and asked Venus to deal with customer calls after 5pm which meant she had to return to the office every day. She did not like having to do this and blamed the claimant. Fei started part time in March 2018. She was studying for a business degree at Durham Universtiy. She spoke only a little Cantonese, so in order to improve her fluency, Venus asked the claimant to speak to Fei in Cantonese. This made Fei confused but the claimant followed Venus's instructions as she feared what would happen if she did not. Venus denied giving the instruction. This made no sense as if she wanted the claimant to improve her Mandarin why would she not want Fei to improve her Cantonese? When our Employment Judge asked her, she could not answer. 2.13. Fei’s statement says she felt resentment from the claimant. Her basis for saying this was that having been trained by Teresa, remotely from Australia, to operate the SAP system, on her first day, she had to amend one order in SAP, which was eligible for the “buy 10+1 trade deal”. She used the method Teresa taught of putting one line for 10 cases with normal price, and another line for the extra one at a price of £0. Venus had advised that too. However, the claimant said she was more familiar with SAP than Venus who did not it as much and Fei should input 11 cases at the price of 10. Venus said both methods are acceptable and as Fei was still learning the claimant should be less critical. Fei adds “In the following months, May only managed SAP. She did not answer phone calls or get involved in any logistics issues. When I had any questions, she suggested I seek help from Venus or Teresa by simply saying that she ‘wasn’t sure’. ( This is true as the claimant had little experience in logistics which the 2 part timers had done) ... May did not communicate with me which orders she had left me to amend and which ones she had completed. As a result, we would frequently end up doing the same orders and tasks. In turn, rather than electing to, in future, discuss to clarify matters relevant to both parties, May insisted that I report to her anything SAP related I have done, instead of reporting to Venus only so that she could keep track” . Absent from Fei’s statement is when all this happened. She started in mid March so it must have been between then and mid April. Her perception was the claimant was picking on her, but the claimant was just trying to help her get things right. Again we have differing perceptions but neither witness is being untruthful. We accept whatever mistake Fei made Venus would regard as not being a problem, but if the claimant did anything Venus regarded as wrong , Venus would come down on her harshly . 2.14. Fei writes of another incident on Friday 20 April “ .., , May reprimanded me in front of Clement..rather than talking to me directly to solve this relatively minor issue using a system I was still getting used to,.... It seemed as though May’s exaggeration of the severity of the error, in the presence of Clement and in the absence of Venus, was intended to make me look incompetent. Fei told Venus about this by telephone over the weekend. There is no mention of it in Clement’s statement. He had been a teacher in Hong Kong and by now was in his seventies. We found him to be a likeable man who wanted only a smooth running office with no rivalries. 2.15. On Tuesday 24 April 2018, Fei made a duplicate order confirmation for which the claimant criticised her. The claimant’ statement says I do not know why this led her to believe that I disliked her. .. I also reported the incident to Venus and Clement the next day. In a follow-up meeting ..two days afterwards on 26 April 2018 , I mentioned that it may be better to have someone else in the office along with me and Fei. But Clement stated, as I was older, more mature, and a Christian, I should be more understanding and considerate of Fei. So that there was a record, I sent a follow up email (p. 115-116), and inputted the incident into the Excel office routine document. This is there so that the Australia office can review what is happening in the UK office. I am not aware of any complaint being made about me by Fei as alleged by the Respondent (at 23, p. 30), and I am also not aware of any investigation being carried out (at 24, p. 30) or any "mediatory" meeting (at 24, p. 30) - especially as we could not have had one of 24 April 2018, since that was the day of the actual incident. Christine later told me that Venus deleted this incident from the Excel document. 2.16. We accept Venus’s oral evidence the entry was “hidden” (which means not showing all columns on an Excel spreadsheet) not deleted. However, in sharp contrast to what follows there is a paper trail of a significant event created by the claimant . Fei spoke to the claimant later. She was emotional, crying, and said how stressed she was as a result of studying and working at the same time. The claimant tried to comfort her, and advised her to explain to both Venus and Clement how she was feeling. Fei’s version in parts of paragraphs 4 and 5 of her statement is not inconsistent “4….. When May came back to the office, I decided to chat with her on how we can cooperate and work together more effectively. .. I explained to her that my working style is more independent as I used to work in a company with a larger work environment and population. I was not used to reporting to my colleague constantly and not having an equal two-way communication. She suggested that she could print the emails and put in on the table so that I could go to her desk and collect some task to work on. We later agreed that it is more ideal to let each other know what we were going to do.[5]Towards the end of the talk, I confided to her about my hopes to do well in this company, hoping she could empathise with me and be more understanding in future. Due to exhaustion and accumulating stress from university work in the critical moment of my academic year, coupled with anxiety developed from prior incidents at work, I began to cry. She comforted me for a bit before she went home. This shows two people giving what they perceive to be truthful and accurate accounts. We find neither is lying. Fei’s oral evidence helped the claimant in respects which will be seen . 2.17. Clement’s statement says “the respondent” received a complaint from Fei that the claimant had “bullied” her. He does not say who received it or when. He asserts an “investigation” found the claimant had acted in an inappropriate manner, repeatedly displayed unprofessional conduct and failed to follow reasonable management instructions from Venus , refused to answer incoming calls or get involved in any logistics related issues, blamed Fei for her own mistakes, failed to follow policies and procedures and publicly ridiculed Venus . He adds 24 April was the date of ‘informal mediation’ to attempt to resolve all this of which Clement’s statement says “9. During the meeting .. I did state to the Claimant that she was “older” and “more mature”, however this was not said in a malicious context. These comments were a compliment to the Claimant on her being more “wise” and “understanding” due to her position within the company. The Claimant had more life and work experience and therefore greater perspective and, given this, should be more understanding of a younger employee. I also asked the Claimant to be more “forgiving” for any hardship received from Ms Toh due to her patient and respectable nature.” 2.18. That apart, the respondent’s version makes no sense. How can there have been an investigation no-one realised was taking place and which produced no paper trail at all? Clement’s oral evidence was Venus told him while he was driving a car in which Venus was a passenger the claimant was too hard on Fei and he just accepted that. We find the truth of the matter is the claimant was not acting in as subservient a manner as Venus would have liked, and whatever Venus said as regards which of the claimant or Fei was in the wrong was accepted by Clement, and later Cyril. In short they believed the person in charge is always right and her subordinates should do whatever she says. That is not unreasonable in itself. The problem for the respondent is that the thought processes of Venus, Clement and/or Cyril may have included a subconscious preference for the younger person and bias against the older person for expressing a view of her own and using initiatve both of which Venus viewed as challenging her authority . 2.19. About this time, Venus shouted at the claimant , 'you are Christian - you don't tell a lie and you are unsuitable for this work'. Venus’ strenuously denies stating this to the claimant. Venus is Christian but not, to use a word put to her by Ms Ephraim, as “pious” as the claimant . This is the first of two examples of conduct related to religion being used by Venus to mock the claimant and thus create a humiliating environment for her. We find Venus probably had the purpose of harassing her, but, if she did not, her conduct had that effect and it is reasonable it would have. Despite this incident the claimant hoped the office would return to an amicable atmosphere. She knew Fei sometimes hurried in without breakfast so when Venus was not around, offered her biscuits in the morning. She accepted these, and thanked her. Fei accepts this happened at least once. 2.20. At the end of April 2018, in a meeting with Christine and the claimant Clement stated the direction of the company was now to hire young people since they were more driven. All office staff were to follow Venus’ instructions because she was young and driven. He said younger people would be more able to obey Venus and a fresh graduate is like a ' white paper', willing to obey and follow instructions. Clement accepts he did state Venus was in charge of the office and the claimant should follow her instructions but denies saying younger employees were more likely to do so or are like “white paper”. The phrase was spoken in Cantonese, The English idiom is “ like a blank sheet of paper”. We find Clement did say something like that as this is a level of detail it is improbable the claimant would invent. In oral evidence Clement accepted younger people with less experience bring to any new job less “baggage” from past employments so can be more easily schooled in the respondent’s preferred ways. As a result of what he said , the claimant felt her job was insecure. She brought in references from previous employers, certificates of qualifications and offered to be re-interviewed. Clement accepts she did so and could give no reason why she would if she were not trying to prove her worth and that her age and experience were an asset not a hindrance. 2.21. On 14 May Clement emailed staff saying Jacques Vaessen in the Netherlands had decided to abolish the “ order confirmation “ stage from 1 June to speed up processing of orders.We, and the claimant, accept this would reduce administrative work when the new system was operating efficiently.This was an anticipated reduction in the requirement for employees to do work of a particular kind–in law a redundancy situation. 2.22. However in several important respects Clement and Cyril’s statements and oral evidence were incredible. Both say, in May 2018, the SR’s were given IPads which enabled them to liaise directly with the distribution centre in the Netherlands, so SAA’s work significantly decreased. Venus gave evidence first then Fei. Both said the iPad did not enable the SRs to liaise with the Netherlands, only with the customers but that did save SAA’s having to deal with order amendments. Clement in his oral evidence later had to say the same adding SAA’s now simply had to “press a button” to forward information to the Netherlands. That is essentially what the claimant said too. Accepting there was need to reduce staffing, the question is “ by how much?”. 2.23. On Clement’s explanation there was a need to reduce from one full-timer (the claimant) and 2 part-timers (Christine and Fei) to one and a half full time equivalent. Venus’s version was that before anyone spoke to the claimant she had spoken with Christine who said she could notwork her hours on five mornings instead of three full days. Clement’s version was that his preferred order of staff to retain would have been the claimant, then Christine then Fei, so the claimant was spoken to first. He said Venus had simply become confused as to the order of events. That still does not explain why, by the time of the claimant’s dismissal the respondent needed to reduce further from one and a half full time equivalents to only one part timer. Clement’s account that it was because of improved working of IT systems and that he had asked Venus to spend more time in the office, simply does not provide a sufficient explanation as will be seen. 2.24. On 16 May 2018, in the office, the claimant was told by Clement and Venus to meet them in a nearby coffee shop the next morning. They did not tell her the purpose of the meeting. At 8am on 17 May 2018 they met. They told her half of the responsibilities of her role would change. She could take more administrative and logistics work, and remain employed or accept redundancy. She wanted to keep her job so accepted the different responsibilities. We accept her evidence Venus looked unhappy with her decision. 2.25. Later on 17 May 2018, Venus asked the claimant to carry out a logistics task. When she asked for instructions on how, Venus became furious ignoring the question and shouting instead. Clement and Christine were present. About a week later Michael Ho rang the claimant saying Clement had told him Venus had shouted at her, and Clement had asked her to change her manner so things should improve. Venus says “ I completely deny though becoming angry or shouting at the Claimant when she refused. I was though very firm with the Claimant that this was part of her role and that, as her manager, she should follow my reasonable managerial instruction”. We find the claimant did not “refuse” to do the task , simply asked how. Clement does not mention this in his statement at all and said in oral evidence Michael Ho and/or the claimant must be lying. We find neither are. 2.26. At 4pm on 25 May 2018 (a Friday), Venus found out Fei had forgotten to book in 10 customers for delivery, and made inaccurate bookings for 18 customers. Fei was off work, so the claimant offered to either stay late or return on Saturday to call the customers and share the workload. Venus refused the offer. In evidence, Venus did not disagree with this.It shows the claimant was not at all unwilling to do whatever was needed to help. 2.27. Early on 29 May 2018, the claimant received a WhatsApp message from Christine that she had been dismissed on 28 May 2018.This shows Venus version she was spoken to before 17 May is improbable. 2.28. On 31 May 2018, Venus called a meeting with the claimant and Fei, whose working hours had been changed to 9am-1pm every day instead of 2 full days, so she would uploading orders to the warehouse before11.30am, and the claimant any after then.The claimant started to prepare an ' out of stock' list every day, and was assigned more logistics work. Her workload had increased but it was unclear exactly what her responsibilities now were. She asked Venus for an updated job description. She did not get one. Throughout this time, she kept on greeting Venus in the morning but she would never greet her back. One time, Venus slammed a pile of documents down on the table next to the claimant. 2.29. In June 2018, the claimant and Fei had conversations when Venus was not in the office about a holiday Fei was planning. The claimant felt their relationship was improving and we find it was .We do not think it was ever bad, but can understand why the claimant would come across to Fei as a strict mother figure, and Fei would come across to the claimant as not careful enough in her work. Around this time Fei said the respondent was going to make arrangements for her to do her “placement year” with it, so she would be able to work full time from October 2018. This is almost exactly what happened. The respondent’s witnesses’ statements that Fei continued to work part-time, but flexibly, after the claimant’s dismissal were completely undermined by Fei’s clear evidence that from mid July 2018 to October 2019 she worked 40 hours per week because she is allowed to do so on her placement year as opposed to being limited to 20 hours a week when she had to spend part of every week in University. 2.30. Freeman Hung (“Freeman”), who is from Hong Kong started on 1 June 2018 as a SR in the South-East. Around 5 June 2018 Venus had an argument with him about using Excel, and called Michael Ho, Teresa Lok and Clement to complain about him. On Monday 11 June 2018 in the afternoon, Freeman telephoned the Gateshead office to ask for the contact number of a customer and information about the estimated time on deliveries. The claimant answered his questions. Venus shouted at her she should not have done so. Venus’ statement says when Freeman phoned “ . I informed the Claimant not to answer any specifics and that I would contact Mr Hung back when available. I didn’t shout or abuse the Claimant when I did this. The Claimant though disobeyed my instruction and proceeded to try to answer Mr Hung’s queries”. We do not accept she gave a prior instruction which the claimant disobeyed. 2.31. On Tuesday 12 June 2018, Venus shouted at the claimant she should not have taught Freeman what to do. The claimant replied she was only answering his questions - not teaching. Venus said all other staff outranked the claimant so she was not in a position to teach someone else. She pressed her to admit she was wrong or she would give her a warning letter. Venus then swore at her. Venus’ statement says: “3 This resulted in an altercation between myself and the Claimant on the 14th June 2018. I strongly questioned the Claimant as to why she had disobeyed my explicit instruction and very openly criticised her for this. I did use the work “tiu” under my breath which is best translated as “fuck off”. It wasn’t very professional of me. It was though just born out of the Claimant refusing to follow a simple managerial instruction…. 2.32. Venus’ timescale makes no sense. Why wait 3 days to speak to the claimant about what she says is blatent insubordrination? Probably on this day, Venus asked the claimant to resign and let Fei become full time as part of her work placement. The claimant said she would not resign, since, as a SAA, answering questions from an SR was justified. She begged Venus to stop the shouting. A few minutes later Venus said sorry in a strained tone, but in a few minutes, started shouting again: 'you are Christian - don't say swear words? Don't fight back? Only patient?!' Venus denies saying this but we do not accept her evidence. Again she was mocking the claimant as a “pious” Christian. The claimant’s statement says: “This was all very intimidating. I felt that she was making threats about my job security without a good reason and was trying to verbally humiliate me. … The only thing I could do was be patient, and not talk back. I kept telling myself that the company was paying me to do my job and so, since I needed to keep the job, I had to do everything well.” We find Venus probably had the purpose of intimidating and humiliating her, but, even if she did not, her conduct had that effect and it is reasonable it would have. 2.33. On 13 June 2018, a SR called to let the office know some orders had not been uploaded before 11:30am. Fei had stopped uploading orders after 10:45am. Fei’s statement, in which we find she has made a mistake about the date, says “ On 12 June 2018, the system was slow for the entire morning, and crashed frequently. It was difficult to start the system to upload orders after 10.45am, but luckily most orders had been uploaded already. If that was the case neither Fei nor the claimant were at fault but Venus said it was the claimant’s fault because as the full-timer, she should handle everything. The claimant replied Fei was supposed to do uploads until around11:25am each day. Venus then transferred this task to the claimant saying Fei was now her personal assistant, so would only have to do what Venus instructed her. The claimant felt this was an unbalanced and unfair workload, so requested a new job description. Venus replied there was no point providing one since, as the full-timer, she had to do everything. Fei’s statement includes “.. Venus … . . pointed out that it was May’s job responsibility to upload orders after she had confirmed one. In addition, on my job description issued on 31 May 2018, uploading orders was not included. Instead, as the only other full-time Sales Administration Assistant, uploading orders is also rightfully part of May’s responsibility of managing sales order”. In essence Fei agrees the claimant’s version that Venus unconditionally and unquestioningly sided with her against the claimant. Also when Fei talks about what is in her job descriptions she is not criticised, whereas, as will be seen, the claimant even requesting a updated job description is viewed as defiance not only by Venus, but later by Clement and Cyril. 2.34. At 4pm, Freeman called with some queries. The claimant asked Venus for instructions and , as requested, handed the call over. This, save for the date, matches Venus own evidence “A few days later Ms Hung phoned the office back. The Claimant asked what she should do. I asked her to pass Mr Hung through to me which is what happened”. However Venus shouted at the claimant for not knowing how to answer people's queries, then called a meeting between just the two of them at which she said 'I knew you are Hong Konger and Freeman is Hong Konger as well. You Hong Kong people like to help Hong Kong people'. Venus denies this but we believe it was said. Venus husband is from Hong Kong and Clement’s current sales team comprises five Hong Kongers and one Chinese. As we explain later, harassment can occur even if the reason for the conduct is not the protected characteristic. We do not find this had the purpose of harassing her but in all the circumstances it would reasonably have that effect because Venus was dismissing the claimant’s reason for answering Freemen, which was that it was part of her job, and attributing her actions as due to her and Freeman both being from Hong Kong . This is the only claim of harassment related to race. 2.35. At the end of the meeting, she said the claimant could launch a complaint about her attitude and swearing to the HR department but if she did, they would fire the claimant and not her. Again, this is exactly what happened. 2.36. On 14 June 2018, at around 9am, a logistics problem arose, which the claimant passed to Fei, as she usually handled those. Venus said, from now on, logistics would be the claimant’s responsibility. The claimant felt it was unreasonable to have her handling so much work and becoming more unclear as to what her responsibilities were so again she requested job description. Venus said if she wanted a job description, she should talk directly to Clement. Venus called Clement and passed the phone over. Clement asked why the claimant wanted a job description. She replied it was the unbalanced workload, and mentioned Venus “bullying” her but gave no factual examples. He said he would pass her complaint to HR to handle immediately. His oral evidence was he did, HR being Cyril, based in Melbourne. When Venus heard that, she was furious and left the office. Fei’s statement says Venus took a half day off work. 2.37. The claimant started feeling unwell on 14 June and called her GP surgery. Dr Douglas advised her to go home and rest. She said she could not leave. He gave her a same day appointment to see her usual GP, Dr Foo. Fei got her a cup of water, and helped with the phones for the rest of the morning. Michael Ho phoned to check a delivery and said her voice sounded bad. She told him about the incident. He said he was concerned about her, and told her to seek help from ACAS. She left the office as normal, at 5.30pm, and went to see Dr Foo who signed her off sick due to work related stress from 15 - 25 June .Her husband said she should think about recording discussions if they were making her uncomfortable. She saw Dr Foo again who said she was still not fit for work, gave her another sick note and prescribed tablets. She returned to work on 3 July 2018. 2.38. Clement’s statement does not mention Venus threatened to resign and was later invited to go to Melbourne but that was his oral evidence on Day 3. He could not remember the date but said he had received an email from Venus but had not disclosed or mentioned it due to a connection with her having health problems . Overnight that email was “found”. It was from Venus to Clement, he being in Australia at the time, sent on 13 June(UK time) but we do not have the time of sending. In her resignation letter Venus says her reason for leaving is “ I’m unable to perform my current job role and my personality problem affects atmosphere in the office . The serious point is I found out , when I am impulsive or if I lose my temper I could say “bad words” which is unacceptable in working environment “. She does not mention ill health. 2.39. Ms Ephraim applied to recall Clement who said he believed he had sent a copy of this to Cyril but could not say when .Cyril’s evidence had started at the end of day 3 and on day 4 he said it had not been sent to him until August . That still did not explain why he had not disclosed it earlier. Our Employment Judge put it to him it appeared documents had been suppressed, probably by him, because if he had sent them to Mr Howson he would certainly have disclosed them .He admitted he had not sent them but denied he had suppressed them . As the morning of day 4 wore on, it became obvious this nondisclosure was the tip of an iceberg in that when asked whether he had taken any notes of the critical meeting held by Skype on 10 July he said he had, but did not disclose them because they were his “working notes”. Moreover, he said he had written a report to Mr Yiu, the CEO, and to Clement but that had not been disclosed either. 2.40. Ms Ephraim made an application to strike out the response on the basis of this material non-disclosure which we refused but the non-disclosure spoke volumes about credibility . It may be relevant to costs and aggravated damages too. Cyril then said there was no reason for him not to disclose documents which helped the respondent by showing it had been found in an “investigation” the claimant made a mistake and had tried to blame Fei . That had been suggested by Clement ( see 2.17 above) but he had no documents to evidence any investigation 2.41. This is not an unfair dismissal case but the claimant’s argument is that the reason for her being dismissed rather than Fei , even if there was a redundancy situation , was at least in part due to a protected characteristic. Therefore, we needed to have all the facts about who decided what and when to assess their thought processes. The respondent’s approach was only to tell the claimant, and us, what suited its case . It was not the claimant’s case there was no reduction in the requirement of the respondent for employees to do certain kinds of work, rather that her selection was due to a desire to keep Fei and not her. The question to be answered was why? 2.42. A non-dscriminatory reason would be they only needed one part time worker. Fei’s statement says “Since May’s dismissal my hours have been adjusted again. As I remain at University I work around 16 hours per week over two or three days per week during term time. These hours can and increase outside of term time if my employer needs me to work more hours.” This is plainly misleading. In our view, Fei was, in late 2018, not only invited to write a complaint about the claimant, but told what the respondent wanted her to put in her statement. 2.43. Cyril said a further reduction in manpower to one part timer was needed after the dismissal of Christine but what he said did not explain Fei’s evidence she went full-time in mid July. Cyril said he had checked the records and she did not go full-time until mid- August, which does not make the respondent’s arguments much better, but those records had not been disclosed either. When our Employment Judge said he could not understand why Cyril thought any of the undisclosed material was irrelevant, Cyril said it was “negligence on my part ” not to send it to Mr Howson. In our view it was not negligence but deliberate suppression of documents which undermined its case . 2.44. On 10 July 2018 the claimant had a Skype call with Cyril who had arranged for Venus to be present but did not tell the claimant that. He says the call was always intended to be about the redundancy situation which does not explain when he was intending to deal with the claimant’s complaint of bullying which Clement passed to him. Cyril says: Around the middle of June 2018 I received information from Mr Lee that the Claimant had complained about Ms Teng. The Claimant had apparently stated that she felt bullied by Ms Teng. At this time I knew that the position of the Claimant was perhaps coming to an end. The roll out of the new technology to the sales reps was near completion. Ultimately I knew that we would only need a part time sales admin going forward. We had already made Ms Tan redundant. Therefore either the Claimant or Ms Toh would also need to be made redundant. 2.45. He says the main purpose of the meeting was intended to be the first step in a preredundancy consultation process, however, the Claimant asserted that the meeting should also bedirected towards Ms Teng’s alleged behaviour against herself…..In line with the company’s policy, the Claimant was required to submit a written statement (outlining any concerns) in order for us to fully understand the extent of the concerns raised. The Claimant chose not to do this regardless of being aware of the need to do so. Appreciating that the Claimant appearedsignificantly aggrieved during the meeting, I allowed the complaint to be heard. As Ms Ephraim established in cross examination none of the respondent’s policies require the informal stage of a grievance to be in writing. Ms Ephraim asked if Cyril was expecting something in writing why had he not written to the claimant to say so in June ? His answer was she had been repeatedly off work but as we have seen her absence was less than three weeks and would not preclude some communication to her. 2.46. The response form was pleaded before the respondent knew any part of the Skype call had been recorded and much of Cyril’s witness statement appears to have been copied and pasted from it. The claimant recorded approximately the last 30 minutes of a call of about 45 minutes . 2.47. The claimant says “Redundancy was not mentioned at all in the 10 July 2018 meeting. I tried to stand up for myself, by highlighting the bullying, and asking for an updated job description, and then they found a way to get rid of me.” We accept that version. Cyril’s statement says “The potential redundancy was also discussed in the meeting and the Claimant was afforded the opportunity to put herself forward for voluntary redundancy. The Claimant was informed of the reasons of the potential redundancy, namely, that we had introduced new technology which had led to a reduction in the duties of Sales Administration Assistant. Potential alternatives to redundancy were also discussed. The Claimant accepted that her duties had substantially decreased. He now had to say all that was in the first 15 minutes because there is nothing of it in the recorded part. We do not accept his assertion that during the call Venus said she would apologise and the claimant refused to accept it. The recording shows the opposite. 2.48. Certain passages in the transcript are very illuminating. The person transcribing it indicates where things are inaudible and has helpfully numbered the paragraphs. At the outset the claimant mentions being being”fired” and Cyril replies “ All right if that’s the case, you know, and I have no choice, all right you know to exercise this separation really because the relationship become untenable, all right, as well you have actually highlighted you can’t work with your boss, you know, you don’t trust your boss, all right and you will not undertake any other job description other than the prescriptive few . Is that correct?”. The claimant replies “Uh-hm” and Cyril says “All right so then in that case has become very difficult all right now a —" at which point the claimant interrupts and says “ But the problem is I got bullying and harassment from her ?”, 2.49. At no point can Cyril have known or believed the claimant was not prepared to do work outside her job description unless he had been told so by Venus whom, in oral evidence, he said he had not consulted in advance. At point 15 we read him saying “ of course I did actually have conversations with her as well too, all right “ which is wholly inconsistent. 2.50. At point 16 the claimant says Venus threatened to give her a warning letter. Cyril said he did not understand what she meant. When she explained his response was “ …the thing is you know May I didn't even want to touch on that. Do you know why? Because if I were to touch on that all right and for example you know and if she give you certain instruction, if you refuse to follow the instruction you know what happen? You should be given a warning letter—" In the background Venus is heard saying "Yeah” 2.51. The claimant’s statement says “Once the recording had started I asked again that, if it was her working style, why this ' style ' only happened to me (at 37,). Again, my question was ignored”. Cyril denies saying shouting was Venus’ working style but adds I did emphasise though the importance of both the Claimant and Ms Teng understanding each other’s point of view and that everybody has a different style of working”. Cyril avoids addressing the allegation made by the claimant that Venus only shouted at her. 2.52. Various passages repeat the allegation the claimant is disobedient and questioning of orders . At point 23 Cyril says “ if you question every time of instruction then it is not right. She has the authority, you must understand that ok.” He also said the claimant refused to work with Venus and demanded she be removed. The claimant says she does understand that and at point 27 makes it clear she is not asking for Venus to be removed as her boss only to change her attitude. Point 40 shows the claimant saying she then could work with Venus. 2.53. The claimant said she needed a job description because Venus treated Fei more favourably, and all Fei's workload had been transferred to her which was unfair and unbalanced.She does not suggest a discriminatory reason Cyril said she did not trust Venus which was the real problem. The crux of this case is seen at point 45. Cyril says: “So whatever, I know, and uh, that she says to you, you know, you just follow suit. Because at the end of the day-that you don’t question your boss every decision that she makes, seriously, alright. At the end of the day, look, you are not accountable : she is accountable .. You , because she is the boss it stops at her level .Alright ? So she has every right to demand the required standard and expectation of the subordinate of hers” He discusses his need to obey his own boss Mr Yiu and at point 63 returning to Venus says “ if she asks you to charge you charge. I can understand some time the boss asked me to run. It’s not ( inaudible) I wiil ask my boss “why must I run “? It’s not -- I will ask my boss “how far do you want me to run “. Is very different “how fast you want me to run ?” Is very different from challenging the boss “why must I run “ ( laughs ),,..,,.,,, In “ The Charge of the Light Brigade”, Tennyson wrote of the soldiers told to charge “ theirs not to reason why, theirs not to make reply”. It is such total obeduience Cyril was demanding. 2.54. Cyril denies saying Venus had a harder role or that the claimant should resign for the sake of her health. Read as a whole the transcript shows him repeatedly suggesting the claimant, if she was too mentally weak to take the pressure from Venus, would be better off resigning. Towards the end he used some biblical versus to convey to her there is a season for everything and this is Venus’s season not hers. The claimant said during her evidence the culture in Chinese companies is that no subordinate must ask questions or complain but must obey all orders. We need not find whether that is a culture specific to Chinese companies because there is no doubt from the content of this transcript it was exactly what Cyril expected. The major vulnerability for the respondent is there is no evidential basis for Cyril’s assertions that the claimant was “insubordinate” other than what he was told by Venus. The possibility therefore looms large that one or all of Venus, Clement and Cyril made the stereotypical assumption , the claimant would be questioning of orders because she was older than Venus, whereas Fei would be blindly obedient because she was younger. In short , this transcript sseriusly undermines the respondent’s pleaded case and its witness statements. 2.55. The claimant says “ I further believe that what I disclosed in the call counted as information about the breach of the Equality Act 2010, which was in the public interest. Although, it was about what was happening to me, I wanted to make sure that such behaviour was highlighted - since I did not want it to happen to anyone else either” . We cannot find in the transcript the claimant conveying facts which would show the relevant failure pleaded. Neither can we find any reference to protected characteristics being the basis for Venus bullying her. It would be conjecture that Cyril or any other member of management anticipated a protected act may follow from the allegations the claimant was making. Ms Ephraim in cross examination did not suggest that was so. 2.56. On 11 July 2018 Cyril called the claimant to propose she resigned because the relationship with Venus had broken down, and because of her health. She said she would not resign. Cyril ‘s statement says: A further consultation meeting was held on 11th July 2018 by way of telephone. Ms Teng was not present. The Claimant was informed that we had explored all potential alternatives and that there were no vacancies within the UK, but there was a vacancy in Holland if the Claimant was willing to consider relocating. The Claimant stated that she would not consider the relocation. The decision was therefore made to terminate the Claimant’s employment on the ground of redundancy after the two consultation meetings on 10th and 11th July 2018 as there had been an organisational restructure of the Respondent and new technology had been introduced as outlined above. .. It was decided to retain the services of Ms Toh. Ms Toh was and still is a university student and young than the Claimant. Ms Toh is also employed mostly in a part-time capacity. Ms Toh usually works two days, 16 hours per week. Outside of term time she can and does increase this to four to five days per week. With Ms Toh being a university student, her flexibility allows us to better accommodate having only one sales admin role. I must stress that the decision to make the Claimant redundant and retain Ms Toh had nothing to do with the Claimant’s age, nationality, perceived disability/illness or the complaint she made against Ms Teng. Prior to the Claimant being made redundant, we made a younger employee (Ms Tan) redundant who was of Chinese descent. The Claimant raised an informal grievance regarding Ms Teng’s attitude towards the Claimant on 10th July 2018. The Claimant stated that Ms Teng shouted at the Claimant, gave her more work and gave her work that was not her responsibility. The Claimant did not make any allegations of discrimination in that she did not refer to her alleged disability, nationality, age or religion. The emboldened words we now know are untrue. 2.57. The claimant saw Dr Foo again on 12 July 2018 who gave her two days sick leave so she could get well for attending her daughter's graduation for which in April 2018, she had booked leave from 16 - 20 July 2018. She was thinking of how to write a formal grievance letter when on 13 July 2018 she received a redundancy letter (via email), to sign and return by 16 July 2018. The letter starts by saying 70% of her role 'had already been taken over by the Sales Team', The next paragraph mentions '"lack of trust in your Manager", making the relationship untenable' Quotation marks were used to imply she had said that but the transcript shows it is what Cyril had repeatedly stated. She was given an ex gratia payment . 2.58. On 17 July 2018 the claimant emailed Cyril acknowledging the letter. On 30 July 2018 she went to the office to collect belongings and was let in by Fei. Both the claimant and Fei took photographs of the items retrieved. Fei then emailed Venus and Clement to report ‘unauthorised entry’. In her evidence Fei said this was not a suggestion the claimant had done anything wrong but she had no “authority “ to let the claimant in without Venus or Clement’s permission 3. Relevant Law 3.1. Section 43A of the ERA says a “protected disclosure” is a qualifying disclosure (defined by section 43B) made by a worker in accordance with any of sections 43C- H. 3.2. Section 43B includes “any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following… (b) that a person has failed , is failing or is likely to fail to comply with any legal obligation to which he is subject 3.3. Section 43C says(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure ...— (a) to his employer, 3.4. Section 43(3) says “Any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention.” 3.5. Cavendish Munro Professional Risks –v-Geduld, drew a distinction between a disclosure of information and simply voicing a concern, raising an issue or setting out an objection. Kilrane-vLondon Borough of Wandsworth said it is rare a communication will contain no information but the example given by Slade J in Geduld is good . A nurse saying to a manager, “ there are health and safety breaches in this hospital” gives no information or facts. If the nurse prefaces it with “Ward 10 has not been cleaned for two days and there are sharps lying around” it does . 3.6. A disclosure need not be objectively correct provided the makers beliefs are reasonable, Darnton-v-University of Surrey and Babula-v-Waltham Forest College . The requirement it is “made in the public interest” does not require it to be in the interests of all the public but of a significant sector- Chesterton Global -v-Nurmohammad. 3.7. Turning to the claims under the Equality Act 2010 (EqA), Section 13(1) says: A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Section 23 adds On a comparison of cases for the puroses on s13.. there must be no material difference between the circumstances of each case “ 3.8. Section 27 includes A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a)bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. 3.9. Section 40 makes harassment unlawful and section 26 which defines it includes : A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. 3.10. Section 109 includes (1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer.(3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval.(4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A— (a) from doing that thing, or (b) from doing anything of that description. This respondent does not plead ss(4) , rather it denies its employees have done the alleged acts. 3.11. Section 39 includes an employer must not discriminate against or victimise an employee by dismissing her or by subjecting her to any other detriment, the latter meaning anything which places her at a disadvantage . 3.12. in direct discrimination and victimisation, we must determine the reason why the claimant was treated as she was. The protected characteristic or the protected act need not be the only or even the main reason. It is sufficient it is a significant in the sense of being a more than trivial factor, Shamoon-v- Royal Ulster Constabulary. Before harassment was a separate statutory tort, if a person engaged in conduct towards another which was related to a protected characteristic but did not do so because of it , there was no direct discrimination see Porcelli –v-Strathclyde Council. Under section 26 the link is now between the protected characteristic and the conduct not the “reason why” the conduct occurred. Section 212 prevents a finding that acts which constitute harassment can also be a detriment under section 39. 3.13. As said above, in direct discrimination and victimisation we must look for the “reason why” treatment was afforded. Detecting either involves a process of fact finding and inference drawing. Unreasonableness of treatment does not show why acts were done, neither does incompetence (Glasgow City Council –v- Zafar and Quereshi-v- London Borough of Newham). Elias J as he then was, in the EAT in a case of race and sex discrimination Law Society –v- Bahl said 93. There is clear authority for the proposition that a tribunal is not entitled to draw an inference of discrimination from the mere fact that the employer has treated the employee unreasonably. This is the important decision of the House of Lords in Glasgow City Council v Zafar 94 The reason for this principle is easy to understand. Employers often act unreasonably, as the volume of unfair dismissal cases demonstrates. Indeed, it is the human condition that we all at times act foolishly, inconsiderately, unsympathetically and selfishly and in other ways which we regret with hindsight. It is however a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman then it is legitimate to infer that our unreasonable treatment was because the person was black or a woman. All unlawful discriminatory treatment is unreasonable, but not all unreasonable treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour. In order to establish unlawful discrimination, it is necessary to show that the particular employer’s reason for acting was one of the proscribed grounds. Simply to say that the conduct was unreasonable tells us nothing about the grounds for acting in that way…….. . 100. By contrast, where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. … 101. The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation given than it would if the treatment were reasonable. In short, it goes to credibility. If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination. But it will depend upon why it has rejected the reason that he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not in fact discriminated on the proscribed grounds may nonetheless sometimes give a false reason for the behaviour. They may rightly consider, for example, that the true reason casts them in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest that there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support a finding of unlawful discrimination itself..” 3.14. The law as stated in para 101 was undoubtedly correct before the statutory reversal of the burden of proof , but is it still? Section 136 says (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. 3.15. This reversal of the burden of proof was first explained in Igen-v-Wong. Quoting selectively Elias LJ in paragraph 40 of the post reversal case Ladele-v-London Borough of Islington (3) As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination: "Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer." If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the Tribunal must find that there is discrimination. (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great Britain-China Centre 3.16. What if the evidence of a non-discriminatory reason comes from a source other than the respondent, including the claimant herself . In Eagle Place Services Ltd –v- Rudd His Honour Judge Serota Q.C. cited the Court of Appeal in Bahl with approval even after reversal of the burden of proof was introduced : “The inference may also be rebutted – and indeed this will, we suspect, be far more common – by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. Employers will often have unjustified albeit genuine reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made. Even if they are not accepted, the tribunal's own findings of fact may identify an obvious reason for the treatment in issue, other than a discriminatory reason.” 3.17. The Court of Appeal gave judgment on 11 October 2019 in Base Childrenswear Ltd v Otshudi [2019] EWCA Civ 1648 . An Employment Tribunal (ET) had upheld a claim of a racially discriminatory dismissal .The respondent appealed saying there was no evidential basis for the ET's finding the claimant had proved a prima facie case and, even if she had, its decision the respondent had not proved a defence under s 136(3) was flawed. In that case redundancy was given as the reason for dismissal though in truth it was misconduct. The Court stated the way s 136 EqA 2010 works is that, if a respondent fails to show the relevant protected characteristic played no part in its motivation, it fails. The Court confirmed something more than a mere finding of less favourable treatment is required before the burden of proof shifts but, as Sedley L.J. said in Deman v Commission for Equality and Human Rights ,‘the “more” needed to require an answer need not be a great deal. In some instances, it will be furnished by non-response, or an evasive or untruthful answer. In Solicitors Regulation Authority v Mitchell EAT 0497/12, the EAT held an ET had been entitled to apply the shifting burden of proof rule in a claim of direct sex discrimination where the employer had given a false explanation for less favourable treatment. Judge Serota explained: ‘The employment tribunal was… entitled to treat the combination of the less favourable treatment, the difference in gender between the claimant and [her comparator], and the false explanation given as being evidence from which it could infer, in the absence of the satisfactory explanation, a discriminatory reason for the less favourable treatment.” 3.18. Malicious motive towards the claimant, is not a requirement where one is looking for the reason why something is done. However, benign motive does not save a respondent from liability where the necessary causation between the “protected characteristic” and the subjection to detriment is established, Amnesty International-v- Ahmed. The alleged discriminator, sometimes subconsciously, may make stereotypical assumptions. As explained in Anya-v-University of Oxford 2001 IRLR 377 facts which are not obviously discriminatory may point to sub-conscious, but still direct, discrimination particularly when good equal opportunities practice exists but is not followed. As is clear from Anya, we must look for indicators from before or after the time of the acts complained of and in a wider context than those acts, which point towards, or away from, a legitimate inference that a protected characteristic was a factor in the minds of decision makers. Also, finding someone would behave equally unreasonably towards others should not be based on the hypothetical possibility that he might, but on evidence that he does. 3.19. Subjecting someone to detriment has been equated by case law to “placing her at a disadvantage”. If in an age discrimination case the only act complained of is dismissal, as it was in CLFIS (UK) Ltd-v-Dr Mary Reynolds OBE , one looks at the thought process of the person who took that decision. Dr Reynolds was about 70 years old and, although the quality of her work was impeccable , due partly to family circumstances and partly to preferences her working style did not fit in with the new working methods of CLFIS. The manager who took the decision to dispense with her services, a Mr Gilmour , did so because he believed she was not capable of changing her working practices. A stereotypical assumption often made about older people is they are unwilling or unable to change their ways as illustrated by the old proverb “ you can’t teach an old dog new tricks “. Other managers may well have held and expressed such views but the ET found Mr Gilmour based his view on detailed knowledge acquired over many years of how Dr Reynolds, as an individual, worked. Reynolds is a good example of a case where a witness gave a full and cogent explanation, which was accepted, that he was not motivated by her age. Underhill LJ spelled out how the case could have been put to give the claimant the remedy she sought, if others were motivated by her age:- (1) By making an adverse report about the claimant , someone ( Y ) subjects her to a detriment (2) If Y was motivated by her age, his act constitutes discrimination (3) If that discriminatory act was done in the course of Y's employment it would be treated as the employer’s act; and it would be liable (4) Y would also be liable for his own act(5) The losses caused to the claimant by her dismissal could be claimed for as part of the compensation for Y's discriminatory act, since they would have been caused or contributed to by that act”. Ms Ephraim confirmed her case was that even if Cyril was the only decision maker, which she did not accept, he discriminated himself by making stereotypical assumptions but, in the alternative, if he was relying on “tainted information” supplied by Venus and/or Clement, they were motivated , at least in part, by the claimant’s age . 4 Conclusions. 4.1. The first issue is “Did the claimant make one or more disclosures of information?” We find this is one of the rare cases where she did not. There was no protected disclosure because no facts were conveyed. The next two issues become otiose. Her ERA claim fails. 4.2. The claimant’s case is that in raising an informal grievance about Venus and/or during the Skype call she did a protected act. We cannot find she referred to any breach of the EqA only to “bullying and harassment” without connecting it to a protected characteristic. She has not argued the respondent believed she may do a protected act, so her victimisation claim fails, even though part of the reason for dismissing her was she was viewed as having the audacity to complain. 4.3. There were no changes in the claimant’s terms and conditions of employment in the relevant period which required a statement of changes in that her job duties were so broadly drawn as to include everything she was asked to do, so her claim for a s.38 uplift fails. 4.4. The acts referred to in paragraphs 2.19, 2.32. and 2.34 were unwanted conduct related in the first two to the protected characteristic of religious belief and in the last to national origin which is part of the protected characteristic of race. It had either the purpose or, reasonably, the effect of creating an intimidating and/or humiliating environment for her. That constitutes harassment. However, we conclude none of the respondent’s witnesses treated the claimant less favourably than they would have treated an employee of Malaysian or Singaporean origin or a non-Christian employee in similar circumstances . It is improbable having regard to their own race or religion they were motivated to dismiss or subject her to other detriment for those reasons. More importantly, having regard to the case law in paragraphs 3.13-3.18 above despite the respondent’s lack of truthfulness in its explanations, there is an obvious link, as the claimant accepted in evidence, between the less favourable treatment and her age. In our view the principle in paragraph 3.16 applies not only where there is an obvious non-discriminatory reason but also where the reason is obviously because of a different protected characteristic. 4.5. We accept that by 17 May a redundancy situation existed. Clement said he wanted to retain, in order of preference, the claimant, then Christine then Fei. Christine could not do the hours needed so she went. If further reduction in SAA’s was needed logically the next to go would be Fei. Why did it change? The short answer is because that is what Venus wanted. Venus levelled no criticsms at Fei whereas she found fault with everything the claimant did. Venus’ assertion, adopted by Clement and Cyril, that the claimant challenged her management and at worst defied instruction is not born out by the evidence. We conclude she, as well as Clement and Cyril, made the stereotypical assumption referred to by Clement in the meeting in late April (paragraph 2.20 above) that young people are easier to command. Venus preferred Fei, at least in part, because she perceived her comparative youth would make her compliant whereas the claimant’s greater age and experience meant she would always be a problem to her. The claimant has done more than enough to raise a prima facie case the reason for preferring Fei was her age. 4.6. We are not considering fairness or reasonableness, but a choice was made and it calls for an explanation. As Elias LJ said in Ladele “Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paras 100-101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a non-discriminatory explanation for it”. 4.7. The claimant had more qualifications than Venus but Fei would too in the near future . Venus own insecurities may explain why she preferred Fei to the more mature claimant but she did not tender that as her explanation. The respondent’s case is not that Venus shouted at everyone but that she shouted at no-one which is inconsistent with Venus’ resignation letter. In this respondent senior managers Clement and Cyril accepted the view of a junior manager. Venus unquestioningly that the claimant was insubordinate without investigation. Their case was there was an investigation which produced no parerwork. In that and other respects their evidence fell far short of “the truth, the whole truth and nothing but the truth” . Unlike the dismissing officer in Reynolds. Clement and Cyril cannot show they too did not make stereotypical assumptions that the claimant, as an older woman would be disobedient by showing she actually was. We therefore conclude the respondent did treat the claimant less favourably than it treated Fei by dismissing her on the basis all three of them made the decision to pick the claimant not Fei. Cyril claims to have been the sole decision maker. Even if he simply did the bidding of Venus who briefed against the claimant because of her age, as explained in Reynolds, this is undoubtedly a discriminatory subjection to detriment 4.8. As for the perceived disability claim Cyril was simply trying to soften the blow of dismissal . None of the respondent’s witnesses perceived or believed the claimant was a disabled person, so did not treat her less favourably for that reason. T M Garnon EMPLOYMENT JUDGE[1]We award compensation of £ 45526 and interest of £6785, broken down into separate elements in paragraph 5.11 below.[2]We make a costs order that the respondent pay to the claimant £3182.40.
REASONS
[1]Introduction and Issues 1.1. The claimant, born on 8 July 1970, was employed by the respondent from 9 October 2017 until her dismissal on 13 July 2018. After a 4 day hearing in October 2019, at which Ms Ephraim of North East Law Centre (NELC) represented the claimant and Mr Howson of Peninsula the respondent, we unanimously held her dismissal, and subjection to some pre-dismissal detriments, amounted to direct discrimination because of age. We also found pre-dismissal harassment on two occasions related to her religious belief and one occasion related to race. Claims of victimisation, disability discrimination and automatically unfair dismissal failed. As before to avoid confusion , we refer to many people by first names: Ms Venus Teng (“Venus”); Ms Fei Li Toh (“Fei”); Mr Clement Lee (“Clement”); and Mr Cyril Cheang (“Cyril”). With consent of both parties we are deciding remedy on documents sent electronically, written statements and submissions, all of which are excellent. For the remedy stage, Mr Heslop of NELC has taken over from Ms Ephraim. 1.2. The issues agreed by the representatives are good but we set them out in what appears to us a more helpful order and one which may have consequences for tax purposes Injury to Feelings What effects did(a) Venus’ harassment pre-dismissal(b) the respondent’s age discrimination (pre-dismissal and by dismissal) have on the claimant considering (i) her personal characteristics (ii) any medical conditions she had (iii) any effect on her career (iv) the manner in which the respondent dealt with her informal grievance. Financial Loss What losses flow from the unlawful acts? What, if any, chance is there she would have been dismissed for a non-discriminatory reason at (a) the time of her actual dismissal or (b) a later definable date? What, if any, chance is there the respondent would have given her unpaid compassionate leave from December 2018 to April 2019 or re-employed her on return from caring for her mother in Hong Kong? Taking into account the impact of the discrimination, has she taken reasonable steps to mitigate her loss? Aggravated Damages Was the respondent’s following conduct high-handed, malicious, insulting or oppressive (a) failure to investigate her complaints seriously (b) non-disclosure of documents (described in the judgment as ‘deliberate suppression’)(c) tendency to accuse her of fabricating allegations which had a basis in truth; and/or itself giving evidence that ‘fell far short of the truth, the whole truth and nothing but the truth’ ? If so, did this conduct cause her additional distress? ACAS Uplift Does the ACAS Code of Practice on Disciplinary and Grievance Procedures (“the ACAS Code”) apply? If so, has there been an unreasonable failure to comply? If so, is it just and equitable to apply any percentage uplift to the compensation awarded? Interest Should interest be awarded for (a) Injury to feelings (including aggravated damages) from 24 April 2018 up to the remedy judgment and (b) financial loss from 13 July 2018 up to the judgment? Costs Are we satisfied one of the circumstances the Employment Tribunal Rules of Procedure 2013 ( the Rules) exists for making a costs or preparation time order? If so, the “discretion issues” are (a) whether it is proper to exercise our discretion to make a costs order (b) should it be for all or a specified part of the costs incurred (c) how much was properly incurred?[2]Relevant Extracts from the Liability Judgment 2.1. We set these out as far as possible in the same order as the issues listed above but there is overlap in that some paragraphs are relevant to more than one issue. Paragraph numbers beginning with 2 are from our findings of fact.Those beginning with 4 are from our conclusions. 2.2. Pre Dismissal harassment and discrimination 2.19. About this time, Venus shouted at the claimant, 'you are Christian - you don't tell a lie and you are unsuitable for this work'. Venus’ strenuously denies stating this to the claimant. Venus is Christian but not, to use a word put to her by Ms Ephraim, as “pious” as the claimant . This is the first of two examples of conduct related to religion being used by Venus to mock the claimant and thus create a humiliating environment for her. We find Venus probably had the purpose of harassing her, but, if she did not, her conduct had that effect and it is reasonable it would have. 2.32. Venus’ timescale makes no sense. Why wait 3 days to speak to the claimant about what she says is blatent insubordrination? Probably on this day, Venus asked the claimant to resign and let Fei become full time as part of her work placement. The claimant said she would not resign, since, as a SAA, answering questions from an SR was justified. She begged Venus to stop the shouting. A few minutes later Venus said sorry in a strained tone, but in a few minutes, started shouting again: 'you are Christian - don't say swear words? Don't fight back? Only patient?!' Venus denies saying this but we do not accept her evidence.Again she was mocking the claimant as a “pious” Christian.The claimant’s statement says: “This was all very intimidating. I felt she was making threats about my job security without a good reason and was trying to verbally humiliate me. The only thing I could do was be patient, and not talk back. I kept telling myself the company was paying me to do my job and so, since I needed to keep the job, (emphasis added)I had to do everything well.” We find Venus probably had the purpose of intimidating and humiliating her, but, even if she did not, her conduct had that effect and it is reasonable it would have. 2.34. At 4pm, Freeman called with some queries. The claimant asked Venus for instructions and , as requested, handed the call over. This, save for the date, matches Venus own evidence “A few days later Mr Hung phoned the office back. The Claimant asked what she should do. I asked her to pass Mr Hung through to me which is what happened”. However Venus shouted at the claimant for not knowing how to answer people's queries, then called a meeting between just the two of them at which she said 'I knew you are Hong Konger and Freeman is Hong Konger as well. You Hong Kong people like to help Hong Kong people'. Venus denies this but we believe it was said. Venus husband is from Hong Kong and Clement’s current sales team comprises five Hong Kongers and one Chinese. As we explain later, harassment can occur even if the reason for the conduct is not the protected characteristic. We do not find this had the purpose of harassing her but in all the circumstances it would reasonably have that effect because Venus was dismissing the claimant’s reason for answering Freeman, which was that it was part of her job, and attributing her actions as due to her and Freeman both being from Hong Kong . This is the only claim of harassment related to race. 2.38. Clement’s statement does not mention Venus threatened to resign and was later invited to go to Melbourne but that was his oral evidence on Day 3. He could not remember the date, said he had received an email from Venus but had not disclosed or mentioned it due to a connection with her having health problems. Overnight that email was “found”. It was from Venus to Clement, he being in Australia at the time, sent on 13 June (UK time) but we do not have the time of sending. In her resignation letter Venus says her reason for leaving is “ I’m unable to perform my current job role and my personality problem affects atmosphere in the office. The serious point is I found out, when I am impulsive or if I lose my temper I could say“bad words” which is unacceptable in working environment“. She does not mention ill health. 4.4. The acts referred to in paragraphs 2.19, 2.32. and 2.34 were unwanted conduct related in the first two to the protected characteristic of religious belief and in the last to national origin which is part of the protected characteristic of race. It had either the purpose or, reasonably, the effect of creating an intimidating and/or humiliating environment for her. That constitutes harassment. However, we conclude none of the respondent’s witnesses treated the claimant less favourably than they would have treated an employee of Malaysian or Singaporean origin or a non-Christian employee in similar circumstances. It is improbable having regard to their own race or religion they were motivated to dismiss or subject her to other detriment for those reasons. More importantly, having regard to the case law in paragraphs 3.13-3.18 above despite the respondent’s lack of truthfulness in its explanations, there is an obvious link,as the claimant accepted in evidence, between the less favourable treatment and her age. In our view the principle in paragraph 3.16 applies not only where there is an obvious non-discriminatory reason but also where the reason is obviously because of a different protected characteristic. 2.3. Discriminatory Dismissal 2.18. That apart, the respondent’s version makes no sense. How can there have been an investigation no-one realised was taking place and which produced no paper trail at all? Clement’s oral evidence was Venus told him while he was driving a car in which Venus was a passenger the claimant was too hard on Fei and he just accepted that. We find the truth of the matter is the claimant was not acting in as subservient a manner as Venus would have liked, and whatever Venus said as regards which of the claimant or Fei was in the wrong was accepted by Clement, and later Cyril. In short, they believed the person in charge is always right and her subordinates should do whatever she says. ..The problem for the respondent is that the thought processes of Venus, Clement and/or Cyril may have included a subconscious preference for the younger person and bias against the older person for expressing a view of her own and using initiatve, both of which Venus viewed as challenging her authority. 2.20. At the end of April 2018, in a meeting with Christine and the claimant, Clement stated the direction of the company was now to hire young people since they were more driven. All office staff were to follow Venus’ instructions because she was young and driven. He said younger people would be more able to obey Venus and a fresh graduate is like a ' white paper', willing to obey and follow instructions. Clement accepts he did state Venus was in charge of the office and the claimant should follow her instructions but denies saying younger employees were more likely to do so or are like “white paper”. The phrase was spoken in Cantonese, The English idiom is “like a blank sheet of paper”. We find Clement did say something like that as this is a level of detail it is improbable the claimant would invent. In oral evidence Clement accepted younger people with less experience bring to any new job less “baggage” from past employments so can be more easily schooled in the respondent’s preferred ways. As a result of what he said, the claimant felt her job was insecure. She brought in references from previous employers, certificates of qualifications and offered to be re-interviewed. Clement accepts she did so and could give no reason why she would if she were not trying to prove her worth and that her age and experience were an asset not a hindrance. 2.41. This is not an unfair dismissal case but the claimant’s argument is that the reason for her being dismissed rather than Fei, even if there was a redundancy situation, was at least in part due to a protected characteristic. Therefore, we needed to have all the facts about who decided what and when to assess their thought processes. The respondent’s approach was only to tell the claimant, and us, what suited its case. It was not the claimant’s case there was no reduction in the requirement of the respondent for employees to do certain kinds of work, rather that her selection was due to a desire to keep Fei and not her. The question to be answered was why? 2.42. A non-discriminatory reason would be they only needed one part time worker. Fei’s statement says “Since May’s dismissal my hours have been adjusted again. As I remain at University I work around 16 hours per week over two or three days per week during term time. These hours can increase outside of term time if my employer needs me to work more hours.” This is plainly misleading. In our view, Fei was, in late 2018, not only invited to write a complaint about the claimant, but told what the respondent wanted her to put in her statement. 2.43. Cyril said a further reduction in manpower to one part timer was needed after the dismissal of Christine but what he said did not explain Fei’s evidence she went full-time in mid-July. Cyril said he had checked the records and she did not go full-time until mid-August, which does not make the respondent’s arguments much better, but those records had not been disclosed either. When our Employment Judge said he could not understand why Cyril thought any of the undisclosed material was irrelevant, Cyril said it was “negligence on my part” not to send it to Mr Howson. In our view it was not negligence but deliberate suppression of documents which undermined its case. 2.54. Cyril denies saying Venus had a harder role or that the claimant should resign for the sake of her health. Read as a whole the transcript shows him repeatedly suggesting the claimant, if she was too mentally weak to take the pressure from Venus,would be better off resigning. Towards the end he used some biblical versus to convey to her there is a season for everything and this is Venus’s season not hers.The claimant said during her evidence the culture in Chinese companies is no subordinate must ask questions or complain but must obey all orders.We need not find whether that is a culture specific to Chinese companies because there is no doubt from the content of this transcript it was exactly what Cyril expected. The major vulnerability for the respondent is there is no evidential basis for Cyril’s assertions the claimant was “insubordinate” other than what he was told by Venus. The possibility therefore looms large one or all of Venus,Clement and Cyril made the stereotypical assumption, the claimant would be questioning of orders because she was older than Venus, whereas Fei would be blindly obedient because she was younger. In short, this transcript seriously undermines the respondent’s pleaded case and witness statements. 4.5. We accept that by 17 May a redundancy situation existed. Clement said he wanted to retain, in order of preference, the claimant, then Christine then Fei. Christine could not do the hours needed so she went. If further reduction in SAA’s was needed logically the next to go would be Fei. Why did it change? The short answer is because that is what Venus wanted. Venus levelled no criticisms at Fei whereas she found fault with everything the claimant did. Venus’ assertion, adopted by Clement and Cyril, that the claimant challenged her management and at worst defied instruction is not born out by the evidence. We conclude she, as well as Clement and Cyril, made the stereotypical assumption referred to by Clement in the meeting in late April (paragraph 2.20 above) that young people are easier to command.Venus preferred Fei, at least in part, because she perceived her comparative youth would make her compliant whereas the claimant’s greater age and experience meant she would always be a problem to her. The claimant has done more than enough to raise a prima facie case the reason for preferring Fei was her age. 4.6. We are not considering fairness or reasonableness, but a choice was made and it calls for an explanation… 4.7. The claimant had more qualifications than Venus but Fei would too in the near future. Venus own insecurities may explain why she preferred Fei to the more mature claimant but she did not tender that as her explanation. The respondent’s case is not that Venus shouted at everyone but that she shouted at no-one, which is inconsistent with Venus’ resignation letter. In this respondent senior managers Clement and Cyril accepted the view of a junior manager, Venus, unquestioningly the claimant was insubordinate without investigation. Their case was there was an investigation which produced no paperwork. In that and other respects their evidence fell far short of “the truth, the whole truth and nothing but the truth”. Unlike the dismissing officer in Reynolds. Clement and Cyril cannot show they did not make stereotypical assumptions that the claimant, as an older woman would be disobedient by showing she actually was. We therefore conclude the respondent did treat the claimant less favourably than it treated Fei by dismissing her on the basis all three of them made the decision to pick the claimant not Fei. Cyril claims to have been the sole decision maker. Even if he simply did the bidding of Venus, who briefed against the claimant because of her age, as explained in Reynolds, this is undoubtedly a discriminatory subjection to detriment 2.4. Aggravated Damages 2.11. A recurring feature in this case is the respondent’s witnesses in their statements and initially in oral evidence, saying something which is best improbable, at worst shown to be false, and accusing the claimant of lying about events which they could have said simply represented the claimant misunderstanding something. They chose to deny nearly all her allegations rather than accepting them in part and tendering an explanation. 2.39. Ms Ephraim applied to recall Clement who said he believed he had sent a copy of this ( Venus’ resignation email) to Cyril but could not say when. Cyril’s evidence had started at the end of day 3 and on day 4 he said it had not been sent to him until August. That still did not explain why he had not disclosed it earlier. Our Employment Judge put to him it appeared documents had been suppressed, probably by him, because if he had sent them to Mr Howson he would certainly have disclosed them. He admitted he had not sent them but denied he had suppressed them . As the morning of day 4 wore on, it became obvious this non-disclosure was the tip of an iceberg in that when asked whether he had taken any notes of the critical meeting held by Skype on 10 July he said he had, but did not disclose them because they were his “working notes”. Moreover, he said he had written a report to Mr Yiu, the CEO, and to Clement but that had not been disclosed either. 2.40. Ms Ephraim made an application to strike out the response on the basis of this material nondisclosure which we refused but the non-disclosure spoke volumes about credibility. It may be relevant to costs and aggravated damages too. Cyril then said there was no reason for him not to disclose documents which helped the respondent by showing it had been found in an “investigation” the claimant made a mistake and had tried to blame Fei. That had been suggested by Clement but he had no documents to evidence any investigation.[3]Relevant Law 3.1. The main statutory provision of the Equality Act 2010 (EqA) as far as relevant is 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. (3) An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate (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. 3.2. Section 119 includes (2) The county court has power to grant any remedy which could be granted by the High Court— (a) in proceedings in tort; Compensation on tortious principles means we must try to assess what the position would have been but for the unlawful discrimination and compensate the claimant by attempting to restore her to that position Abbey National plc-v-Chagger 2010 ICR 397. For loss to be compensable, it must flow‘directly and naturally’ from the unlawful discrimination, but there is no requirement of foreseeability (Essa-v-Laing Ltd 2004 ICR 746). We need to compare the financial benefits had she not been treated unlawfully with those she has had, and will be able to have in future. 3.3. We need to consider whether there could have been a non-discriminatory dismissal at the same, or some definable point in the future, O'Donoghue-v-Redcar and Cleveland Borough Council 2001 IRLR 615 and Chagger, where Lord Justice Elias said if there was a chance that, apart from the discrimination, the claimant would have been dismissed that possibility had to be factored into the measure of loss. In assessing the chance of a future event if it is very high, or very low, the tribunal may treat the chance as 100% or 0% (Timothy James Consulting Ltd-v-Wilton UKEAT/0082/14). 3.4. Compensation for injured feelings is not meant to punish. What matters is the effect on the claimant. The summary of the principles by the EAT in Prison Service-v-Johnson is invaluable a “Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. b Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham M.R., be seen as the way to "untaxed riches." c Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. d In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. e Finally, tribunals should bear in mind Sir Thomas Bingham's reference to the need for public respect for the level of awards made” 3.5. Tribunals put awards into bands. For claims presented on or after 11 September 2017, and taking account of Simmons-v-Castle and De Souza-v-Vinci Construction (UK) Ltd, the bands were: a lower band of £800 to £8,400 (less serious cases); a middle band of £8,400 to £25,200 (cases that do not merit an award in the upper band) and an upper band of £25,200 to £42,000 (the most serious cases), with only most exceptional cases capable of exceeding £42,000. 3.6. Commissioners of the Metropolitan Police-v-Shaw summarised earlier authority The EAT found the Employment Tribunal(ET) erred by focusing entirely on the seriousness of the respondent’s conduct rather than the impact on the claimant and thus in practice introducing a punitive element. The reason ET’s sometimes appear to focus on the respondent’s conduct is best explained thus. In a book like “Kemp and Kemp on Damages for Personal Injury“ if a person has been injured in a car accident, one does not read a report about how bad the defendant’s driving was but about clinical findings, X rays and MRI 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 and asking “how would we feel if that happened to us?”. Then we ask “Is this claimant more or less likely than us to feel hurt having regard to all we know about her?”. Just to listen to, and record, how a witness says she has been hurt, risks giving greater compensation to better actors. 3.7. Aggravated damages are also compensatory only. They should be considered where the conduct has been high handed or malicious. Zaiwalla-v-Walia & Co establishes conduct of the proceedings may lead to aggravated damages. In this case the non disclosure of documents and the tendency to accuse the claimant of fabricating allegations which had a basis in truth may trigger such an award and is the basis of a costs application. Some EAT decisions have questioned whether the current practice of separate awards for injury to feelings and aggravated damages is desirable and suggested the better course would be to include the aggravating features without separate quantification in the overall award. However, it has been acknowledged the practice is too well-established to be changed. 3.8. Section 207A (2) Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) includes If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies, (b) the employer has failed to comply with that Code in relation to that matter, and (c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%. The ACAS Code on Discipline at Work does not apply to redundancy dismissals but we see how the Code on Grievances could apply to parts of this case 3.9. Interest runs from the acts of discrimination in respect of injury to feelings, see Reg 6 of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. When the acts causing injury themselves span a period injustice may be done to the respondent by taking the earliest date and to the claimant by taking the latest date. Reg 6(3) gives us discretion as to from when to calculate interest. For financial loss spanning a period we use the mid point date of the period. Reg 3 says Interest “shall be calculated as simple interest” at a rate presently prescribed at 8%. 3.10. Financial loss is calculated net of tax but some kinds of award, including loss of earnings consequent on dismissal, are taxable under s.401 of the Income Tax (Earnings and Pensions) Act 2003 (IT(EP)A in so far as they exceed £30,000. When this happens, tribunals ‘gross up’ the award, by working out what tax would be likely to be levied on the net amount and adding it to the award. Whether awards in respect of injury to feelings require grossing up is difficult. Orthet-v-Vince-Cain held all such awards are exempt from taxation. In a later decision, Yorkshire Housing Ltd-v-Cuerden the EAT did not think it was clear-cut. The particular appeal related to compensation for disability discrimination in respect of the employer’s failure to make reasonable adjustments during the currency of the employment relationship. The EAT held awards for pre-termination discrimination, at least, were not subject to tax, and decided the case on this basis. The Court of Appeal in Moorthy-v-Revenue and Customs Commissioners 2018 ICR 1326 agreed with the reasoning in Vince-Cain. In its view s406 IT(EP)A exempts payments on account of any injury recognised by Parliament as providing a basis for the payment of compensation. However, s 406 was amended with effect from 6 April 2018 to say ‘injury’ includes psychiatric injury but not injury to feelings so, from the 2018/19 tax year onwards, HMRC will treat awards for injury caused by discriminatory dismissal as taxable. We believe injury to feelings awards in respect of pre-termination discrimination are still not taxable and should not be grossed up. We think the same may apply to aggravated damages and all interest. If the elements we believe will be taxed exceed £30000, we will gross up. If HMRC take a different view to us , the parties may ask for a reconsideration. 3.11. In this case we have a very unusual difficulty because the loss and injury flowing from the initial statutory tort was followed by arguably more serious injury caused by what happened at the liabiilty hearing. The respondent subjected her to detriment by trying to escape liability by telling untruths, at best half truths, and not disclosing documents which undermined their version. Depending on why they did so, it may amount to victimisation, but no such claim has been made and would now be out of time. 3.12. In personal injury claims the effects of a supervening event are usually easy to separate from the earlier events. In Heil-v-Rankin the Court of Appeal resolved eight test cases by creating a formula for increasing damages for pain, suffering and loss of amenity where a second act by a different tortfeasor caused exacerbation of a pre-existing condition by apportioning liability for underlying cause and exacerbating cause. At risk of over-simplification if no additional damage is caused by the second tort, only the first defendant will be liable to compensate for all the loss and damage flowing from the first tort, but if additional damage is caused by the second tort, the liability to pay for the cumulative loss and damage is shared between the parties The first defendant remains liable for the loss and damage directly flowing from the first breach of duty, ignoring the second tort. The second defendant pays only for the additional loss and damage flowing from the second tort. The claimant receives full compensation divided between the defendants in the proportions the court assesses. However, in such cases the Court is dealing with both claims against both tortfeasors. Chapman-v-Simon 1994 IRLR 124 held an ET must not decide issues which are not before it. Peter Gibson LJ said ‘..the complainant is entitled to complain to the Tribunal a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other the Tribunal must consider and rule upon. If it finds the complaint is well founded, the remedies which it can give the complainant ..are specifically directed to the act to which the complaint relates. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act.’ 3.13. Section 212 says if conduct constitutes harassment it cannot also be a detriment within section 39, so if acts or omissions falling within s13 subject an employee to detriment, short of dismissal, but also constitute harassment, section 40, not 39, is infringed. At the liability stage in deciding whether it is reasonable for conduct to have the proscribed effect the test has subjective and objective elements. The subjective part involves looking at the effect the conduct had on the particular claimant. The objective part requires the tribunal to ask whether it was reasonable for the conduct to have had that effect on her. Richmond Pharmacology-v-Dhaliwal 2009 ICR 724 and Pemberton-v-Inwood 2018 ICR 1291 noted different people have different tolerance levels. Conduct shrugged off by one might be found offensive or intimidating by another. The EHRC Employment Code notes relevant circumstances can include those of the claimant. In Reed-v-Stedman1999 IRLR 299 the EAT said ‘it is for each individual to determine what they find unwelcome or offensive, there may be cases where there is a gap between what the tribunal would regard as acceptable and what the individual in question was prepared to tolerate. It does not follow because the tribunal would not have regarded the acts complained of as unacceptable, the complaint must be dismissed. It is relevant to consider any remark in context, Heafield-v-Times Newspapers Ltd EAT/1305/12. In this case, as set out in our findings of fact below, the claimant had very specific reasons for needing to keep a job in the UK. 3.14. Comments by learned Judges on the liability test are also relevant to the degree of injury to the particular claimant. The concept in personal injury cases of an injured party having an “eggshell skull” is equally important in harassment and discrimination cases. In HM Land Registry-v-Grant 2011 ICR 1390 Elias LJ said ‘When assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. The EAT in Reed-v-Stedman counselled against carving up a case into a series of specific incidents and trying to measure the caused by each. Instead, it endorsed a cumulative approach quoting from a USA Federal Appeal Court decision: ‘The trier of fact must keep in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created may exceed the sum of the individual episodes’ (USA-v-Gail Knapp 1992 955 Federal Reporter). This was approved by the EAT in Driskel-v-Peninsula Business Services Ltd and, although both cases were decided before the EqA, the same approach should apply.[4]Findings of Fact and Some Conclusions on Financial Loss 4.1. The claimant earned £300.40 net per week but the respondent in addition contributed 2 % to her pension. Having regard to her short service the fairest way of allowing for that is to treat her true loss as £306.40 per week. She was dismissed on 13 July 2018 with a goodwill payment of £1,384.61. She secured new part time employment from 15 October 2018 – 17 December 2018 at £50 per week. She then returned to Hong Kong to care for her sick mother. Over the 22 weeks she would have earned £306.40 x 22 = £6740.80. She earned £450 which along with the ex gratia payment must be deducted. Thus, the loss to 17 December £4,906 4.2. Cyril’s evidence, which we accepted, was the respondent has a culture of being compassionate. We find it would given unpaid leave of absence until she returned from Hong Kong. There is no chance the claimant would have considered leaving her job. She was, but for the harassment, happy in her role, competent and had very good reasons to stay with her employer, (see later). Neither would the respondent have dismissed her for a non- discriminatory reason. In any genuine redundancy situation, Clement said management had an order of preference. Had the claimant not been dismissed in preference to Fei due to age discrimination, she would have resumed work in April 2019 and her job would have lasted indefinitely. 4.3. A dismissed employee has a duty to take reasonable steps to mitigate her loss. As Mr Heslop says it is for the respondent to prove she has not and the standard of what is reasonably required should not be set too high (Fyfe-v-Scientific Furnishing Limited 1989 IRLR 331 and Kelly-v-University of Southampton EAT / 0139 / 10 ) At the time of her dismissal the claimant was off work on sick leave with stress and anxiety. She sought and found employment twice during the pre-hearing period and has in our view mitigated reasonably. 4.4. On 15 February 2019 Venus left for personal reasons. Mr Heslop submits the claimant may have been given Venus' job in charge of the office because she was well qualified and in appraisals her performance was noted as “constantly exceeding expectations” or “exceeding most expectations”. We disagree. First, she was relatively new to the respondent and second she was not there to take up the role as she stayed in Hong Kong until late April 2019. Mr Heslop says she may have returned earlier had she still been employed but we do not accept that was likely as the health of her mother dictated the length of her time in Hong Kong. There is no loss of earnings during this period. However, on her return her pay would probably have increased to about £315 including pension contributions. 4.5. She secured further employment at £150.92 per week from 26 August 2019 with Liberty Living Student Accommodation. In the 18 weeks until then she lost 18x £315 = £5670. The respondent submits this, or shortly after, is when the period of loss should end. Her employment with Liberty Living was 16 hours per week. Mr Howson submits she did not apply for Working Time Credits to “top up” her wage or look for an additional part time or full time position. We disagree. She may well not have known how, or been embarrassed, to apply for state benefits. She comes from a non-welfare state background. We believe a respondent should pay the full loss to someone just as in unfair dismissal where many benefits paid would be “recouped “ by the State. Part time and full time jobs were not at the time easy to find and she had cause to hang on to the one she had found. Her loss from 26 August continued at about £165 per week. The question of for how long it should have is so bound up with the issues of injury to feeling it is better to turn to that now and return to financial loss. 4.6. It was plain at the hearing Venus found the claimant difficult to deal with. They were very different personalities and we see why some things the claimant did irritated Venus who “lashed out “verbally. Unlawful harassment occurred because she did so in a way which related to protected characteristics. The occasions upon which she referred to the claimant's national origin in Hong Kong, while satisfying the test for harassment, were not very serious and, had they stood alone, would not have caused much injury to feelings. In contrast, the claimant is a very devout Christian who lives her life according to Christian values and beliefs. Her treatment by Venus was deeply offensive to her religious values in deriding her religion to the point she was unable to face work. The claimant’s personal circumstances at the time included not having the support of her family as her daughters and her husband were away which added to her isolation. She felt fear and stress. She had insomnia and had to take sick leave. Had the harassment relating to religion been directed to any devout Christian it would merit an award on the cusp of the lower and middle bands of about £8000. However, those remarks were accompanied by a clear desire on the part of Venus to get rid of the claimant because she viewed her age as being a reason for her being a challenge to Venus authority. 4.7. As explained in our law section the claimant's personal circumstances are very relevant. Mr Heslop submits she came to the United Kingdom believing in a fair, reasonable and tolerant society with equal rights, employment rights in which she could freely practice her religion. She wanted her husband to join her from Hong Kong. Although she is a UK citizen he could not unless she had a UK job to provide the income they would need.These facts caused highly increased vulnerability. She had to endure months of being put in fear of losing her job and in our view the pre-dismissal injury to feelings was greater than the injury resulting from the dismissal itself. We value it as £14000. 4.8. The respondent,having been unable to “persuade” her to resign, pu rpo rted to make her redundant whilst she was on sick leave and did so via e mail. This was not the true reason for dismissal. Venus wanted rid of her as she found her, unlike Fei, challenging to her authority. No matter how well the claimant did her job, the stereotypical assumption was made by Venus, Clement and Cyril that her age made her a problem employee.The d i s m i s s i v e handling of her informal grievance making no attempt to investigate and the direct age discrimination against her was very hurtful as it made her feel valueless and very vulnerable . 4.9. That said, at the liability hearing, the claimant came across as getting her career back on track.After being dismissed she did secure some work in October 2018 and on her return from Hong Kong she obtained more secure part time employment. Then came the hearing and the claimant's supplementary statement for the remedy hearing includes significant passages. Speaking of the untruths told by the respondent's witnesses she says “They did this under the very same oath, which I myself was under. As a devout Christian, I found this deeply hurtful and painful as they (claiming to uphold the same Christian values I uphold), did not represent these”. 4.10. On Saturday 12 October 2019 she began to have panic attacks. On Sunday she met with Reverend Sue Greenwood and her friend, Ms Ying Chee (Kim) Tsang. The claimant writes “It angered me that the defendant's witnesses would lie and it triggered bad memories from the past employment and caused me much stress and anxiety”. She had an episode where her chest hurt and she would scream (in Cantonese) about the respondent's witnesses “God is angry , God is really angry! God let me to see him. God is angry. God said I am his loyal servant. I was treated unjustly”. She stayed with Ms Tsang from Sunday night until Thursday in Middlesbrough. She had panic attacks, delusions and auditory hallucinations with no more than 2 hours of sleep per night, She believed the voice she heard was the Holy Spirit. Ms Tsang took a video to show the doctor. She would regularly clutch her Bible and could not shake the delusions. Ms. Tsang took her to the Newcastle RVI hospital on Monday 14th for a routine appointment but whilst there she became very ill so Ms.Tsang took her to A&E where they diagnosed panic attacks.. On Tuesday she saw a GP at the Grove Medical Group in Gosforth and was prescribed Diazepam. 4.11. At 2am on Wednesday morning, she was awake and much worse than the night before. That day Ms.Tsang was so concerned she called the mental health Crisis Team which responded quickly and prescribed sleeping pills. After taking these, she was able to sleep for 4-5 hours. Her older daughter took her back home to Newcastle on Thursday night. She had been absent from her job for two weeks, presumably on planned leave for the hearing, and due to her mental health felt unable to work, so resigned. The vast majority of people would have taken sick, or more annual, leave. 4.12.She still had bad dreams and woke up several times at night. Her older daughter worked in Reading, her younger one was at Lancaster University and her husband was in Hong Kong. After a family discussion, they believed it was not good for her to be alone. Her GP agreed she should go to Hong Kong to be with her husband. She flew there on 22 October. Whilst there the family GP, Dr Yeung, and Psychiatrist, Dr Chen prescribed anxiety and sleeping medication, at a cost to her. 4.13.She travelled back to Newcastle on 14 December and met with the Early Intervention in Psychosis team who were to arrange Psychiatry appointments. On 7 January 2020 she travelled to Hong Kong due to further ill health returning 29 January 2020. By about 10 March she was able to begin searching for new employment. Ms Tsang’s statement, as well as documents produced, fully corroborates this evidence. 4.14. Had it not been for the claimant’s extreme reaction to what happened at the hearing, she would not have gone to Hong Kong on 22 October 2019. We believe she would either have remained at Liberty Living and secured more hours there or found another full time job eradicating her loss by about March 2020. From 26 August 2019 until then is about 30 weeks x £165 = £ 4950.[5]Submissions. Discussion and Conclusions 5.1. Mr Heslop submits her experience at Tribunal directly resulted in a worsening of her health. He submits the total award for injury to feelings should be at the upper end of the middle band. He very fairly concedes the duration of the unlawful treatment was not lengthy enough to justify a higher band award. Mr Howson agrees for harassment, discrimination short of dismissal and a discriminatory dismissal the middle band is appropriate but submits the total award should be £15,000. In our view, had discriminatory dismissal stood alone it would merit an award into the middle band of about £10000. The hurt of actually being dismissed due to age from a job she had not held for long was less than the worry of losing her job and the harassment, which had been a constant source of stress for her for months. As a UK citizen she could remain here and work. Her husband’s plans to join her were not ruined, just “put on hold“ while she found another job. However, added to the pre dismissal harassment and discrimination, the total injury to feelings award should be £24000. 5.2. What Cyril said during the Skype call (quoted at paragraph 2.54. on page 5 above) was high-handed. Mr Heslop citing Zaiwella-v-Walia and Bungay-v-Saini UKEAT/0331/10) says deliberate suppression’ of documents and giving misleading evidence was conduct meriting aggravated damages. We agree it was insulting and oppressive. The word aggravated means “made worse” and in so far as we can compensate for what we adjudicated upon, we accept we should. Mr Heslop accepts aggravated damages are to compensate the claimant not punish the respondent b u t contends £9,000 is not an unreasonable amount given the respondent’s behaviour particularly in its management of the case, Mr Howson acknowledges our findings in respect of the non-disclosure of documents and the evidence given at the Tribunal merits an award of aggravated damages but contends the amount must be proportionate to its wrong-doing so suggests £3000. We think £6000 (one quarter of the injury to feelings award) is a reasonable amount to award for the extent to which her already injured feelings were made worse before,during and after the hearing.That too will figure in our costs decision 5.3. However, we are being asked to do more than that. As we said in our law section for loss to be compensable, it must flow ‘directly and naturally’ from the unlawful discrimination, but there is no requirement of foreseeability (Essa-v-Laing). On the other hand, as we say in paragraph 4.11 above, so extreme were the claimant’s reactions to what happened at the hearing, upon which we have never been asked to adjudicate as a “second tort” in itself, that it calls into question whether the losses arising from her resignation and departure for Hong Kong did flow ‘directly and naturally’ from the unlawful discrimination. We have no doubt the claimant and Ms Tsang’s description of what happened and why in genuine and not exaggerated. 5.4. The claimant at the liability hearing was well on the way to getting her life and career in the UK back on track until the trial itself caused her such a severe reaction she gave up her job and returned to Hong Kong. On 30 October 2019 we gave judgment in her favour In the course of which we made several findings about the respondent’s conduct of the case because they went to credibility of their evidence on the matters before us. Neither we, nor any other Tribunal or Court, have been asked to decide why the respondent took the line it did. 5.5. Mr Howson argues the claimant has stated she left this employment following the stress she experienced at the Tribunal hearing and submits the respondent should not be liable for any losses incurred as a result of her voluntarily leaving her employment. Her medical records show her suffering from mental health issues at the end of October 2019 due to the nature and experience of the Tribunal hearing. He says her full loss of earnings is not attributable to the respondent’s discriminatory treatment in 2018 upon which we adjudicated. In our view that is right. We would not chose the word “voluntarily“ but her resignation from Liberty Living was not only unforeseeable but unnecessary in that she could have, as she had before, gone sick. 5.6. Mr Heslop is asking us to treat what happened at the hearing as if it were a statutory tort in itself for which we can compensate by awarding her entire loss of earnings after 12 October 2019 and her medical expenses in Hong Kong. We do not think we can do that.To illustrate the point, suppose we had finished evidence and submissions by the end of Day 3 (as we might but for the respondent’s conduct of the case) we would have deliberated, given judgment and dealt then with remedy. We would have recognised the aggravation to injury to feelings caused under the Zaiwalla principle and projected future loss on the basis the claimant would keep her job at Liberty Living and either obtain more hours there or found another job to eradicate her future loss in about six months . That would have ended the case. Her breakdown and its consequences would only have been known if the claimant had brought a claim of victimisation which would then have been decided on its merits after hearing more evidence and submissions probably by a different Tribunal. 5.7. As for an uplift for non compliance with the ACAS Code, we accept an informal grievance was raised and the respondent failed to investigate the claimant’s complaints about Venus properly. Mr Howson accepts an uplift of 10% for failure to follow the ACAS Code as regards the informal grievance may be appropriate. Matters were being handled mainly by Cyril from Melbourne who probably did not know of, still less consider following, ACAS guidelines which apply only in the UK. The statutory provisions enabling ET’s to uplift awards have proved useful in claims where we are otherwise confined to making awards which cannot reflect the manner in which the respondent, for example, unfairly dismisses or unlawfully deducts wages. Although we believe we could in law uplift, we have in this case already reflected this element in our award of aggravated damages, and will be awarding costs. We do not find it is just and equitable to uplift under this provision as well. 5.8. Interest must be awarded . The Injury to feelings spanned a period from October 2017 until her dismissal on 13 July 2018 If we award interest from the end of February 2018 to this judgment. that is 31 months at 8% pa on £24000 = £ 4960. With respect to aggravated damages, October 2019 to now, 12 months seems fair £6000 at 8% = £480 . For financial loss starting 13 July 2018 up to this judgment the mid point date would be about the start of September 2019 and an award of 13 months seems fair.Total financial loss is £4906+££5670 + £4950 = £15526 on which interest is £1345. 5.9. As for grossing up Mr Heslop says(i) the first £30,000 of any award will be tax free (ITEPA 2003 s402A (2))(ii) injury to feelings is not subject to tax(iii) the Tribunal should “gross up” those heads of compensation (earnings) that may attract HMRC taxation. He recognises this area is somewhat unclear following recent HMRC Guidelines of January 2020 which appear to suggest tax may or may not be payable until April 2021. We agree the extent to which HMRC will apply taxation to these awards is not clear but we think elements (i) (ii) (iii) and (vii) below will be taxed. They total £25526 which being less than £30000 will be within the tax free allowance so no grossing up is needed. 5.10. We made the declaration in the liability judgment and are not asked to make any recommendation. The calculation of compensation net of tax is (i) Loss to 14 July to 17 December 2018£4,906. (ii) Loss 23 April - 25 August 2019 18 weeks at £315 = £5670 (iii) Loss 26 August to about March 2020 30 weeks at £165 = £ 4950(iv) Total financial Loss £ 15526(v) Interest from mid point date 13 months at 8% =£1345(vi) Injury to feelings pre-dismissal £14000(vii) Injury to feelings arising from dismissal £10000(viii) Interest from mid point of employment (end February 2018) to now 31 months at 8% =£4960(ix) Aggravated damages £ 6000(x) Interest from liability hearing to now 12 months @ 8% = £ 480 5.12. This is an unusual case. In many discrimination cases, we find those who have discriminated to be unsympathetic, selfish and/or ruthless people. In this case none of the witnesses appeared to be so but held stereotypical views which caused the claimant great harm. Determined to win at all costs, the respondent ran its case, denying matters it would have been better to admit and apologise for, and in the process calling the claimant’s integrity into question. It is reminiscent of the words of Lord Justice Neill in King-v-Great Britain China Centre 1991 IRLR 513 that many people are unwilling to admit discrimination even to themselves. Some victims of discrimination exaggerate the severity of the treatment they experienced. This claimant did not. Matters many victims would find only moderately hurtful and which would not cause them to become ill had a much greater effect on this claimant. In personal injury claims this truly would be an “eggshell skull “case.[6]Costs 6.1. The Rules include: 74.—(1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing). (2) “Legally represented” means having the assistance of a person (including where that person is the receiving party’s employee) who—(a) has a right of audience in relation to any class of proceedings in any part of the Senior Courts of England and Wales, or all proceedings in county courts or magistrates’ courts; (3) “Represented by a lay representative” means having the assistance of a person who does not satisfy any of the criteria in paragraph (2) and who charges for representation in the proceedings. Costs orders and preparation time orders 75.—(1) A costs order is an order that a party (“the paying party”) make a payment to— (a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative; (2) A preparation time order is an order that a party (“the paying party”) make a payment to another party (“the receiving party”) in respect of the receiving party’s preparation time while not legally represented. “Preparation time” means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing. When a costs order or a preparation time order may or shall be made 76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success. (2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. 6.2. The Court of Appeal and EAT have said costs orders in the Employment Tribunal: (a) are rare and exceptional. (b) whether the Tribunal has the right to make a costs order is separate and distinct from whether it should exercise its discretion to do so(c) the paying party’s conduct as a whole needs to be considered, per Mummery LJ in Barnsley MBC v. Yerrakalva 2011 EWCA 1255 at para. 41:“The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.”(d) there is no rule/presumption that a costs order is appropriate because the paying party lied or failed to prove a central allegation of their case, see HCA International Ltd-v- May-Bheemul 10/5/2011 EAT.(e) even if there has been unreasonable conduct making it appropriate to make a costs order, it does not follow the paying party should pay the receiving party’s entire cost of the proceedings. Yerrakalva at para. 53. 6.3. On the questions of Costs Order or Preparation Time Order, Mr Heslop says the claimant has been represented throughout by the North East Law Centre (NELC) which provides a free employment law service through a paralegal supervised by NELC’s Senior Solicitor the latter having a right of audience under Rule 74 (2)(a), funded by the Litigants in Person Support Strategy (from September 2018) and (from April 2019) by Newcastle City Council. General running costs, e.g. photocopying, are covered by NELC’s wider budget (from grants, donations etc.). Conduct of the case and representation has been provided by a paralegal., first Ms Ephraim and then Mr Heslop. This is no different from a private solicitors practice where the qualified solicitor delegates tasks to a paralegal, For this reason, we agree this application should be considered as an application for a costs order. 6.4. Under Rule 74 ‘“costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party’. “On behalf of” includes the provision of free services. Any costs or expenses incurred by NELC in presenting the claimant’s case are no different in principle from costs incurred by her personally, Taiwo-v-Olaigbe, 2013 WL 617439 (2013). 6.5. The unreasonable conduct in our view was 6.5.1.up until the final day of the hearing, failure to disclose the ‘resignation’ email from Venus which supported the claimant’s version of events in respect of Venus’s behaviour. 6.5.2. failure to disclose even the existence of other documents, which at no stage were disclosed: (i) Fei’s employment records (ii) Cyril’s notes of the 10 July 2018 Skype meeting (iii) a written report sent to Bernard Yiu.There was no paperwork to evidence the April 2018 investigation but that is probably because there was nothing which could sensibly be called an investigation . 6.5.3. the witnesses’ evidence that Fei continued to work part-time, but flexibly, but her clear oral evidence that from mid July 2018 to October 2019 she worked 40 hours per week. 6.5.4. Cyril maintaining in written and oral evidence the version of a Skype call presented in the ET3 was true and accurate, yet the claimant’s audio recording directly contradicting his version. As we noted ‘He now had to say all that was in the first 15 minutes because there is nothing of it in the recorded part’. This not the only attempt to mislead We found there had been ‘deliberate suppression of documents which undermined [the respondent’s] case’ This conduct defied the disclosure order so falls in Rule 76 (2) but was also unreasonable behaviour under Rule 76 (1)(a). 6.5.5.deadlines were missed by the respondent and it became necessary for the claimant to apply for an unless order. A strike out warning was issued instead with the witness statements then being provided by the deadline for response. This conduct also falls under Rule 76 (1)(a) and (2). 6.6. The conduct had the effect of prolonging the hearing and overall preparation time required The claimant’s representative and the Tribunal had to devote time to ascertaining the existence of relevant documents and elicit evidence that should have been given freely. 6.7. Mr Heslop submits the totality of the conduct outlined supports a claim for all of the costs incurred. In the alternative he submits we should order such proportion of an attached schedule as we considers just and equitable. In considering the respondent’s ability to pay he notes it is a large multinational company, with a net profit of over £1,492,783 in 2018 Mr Howson accepts the hearing was prolonged by the respondent’s unreasonable conduct of the proceedings but only by one day 6.8. The costs claimed in the schedule are at a very modest rate and for a very reasonable number of hours. They total £ 5428.80. The first nine items were work that would have to be done anyway. They total £1540.50. So would items 11 and 12 totalling £171.60. Item 10 -Application for unless order and advice to client would have been wholly avoidable but for the unreasonable behaviour £ 74.10. Items 15 and 16 totalling £1482 would have been avoided completely but for the unreasonable behaviour. 6.9. Item 13 is “final preparations and pre-hearing advice to client” £ 1092.00 and Item 14 “attend Tribunal (3 ½ days), including client advice and travel time” £1068.60. Assessing costs is not a precise science and when we say in respect of earlier items they would have to have been done anyway, they would not then have to have been re-visited had it not been for late delivery of witness statements and the “selective discovery. The hearing would have been much reduced in length. Of the sub total of these two items, £ 2160.60, we award the whole of item 13 and item 14 reduced by half to £534.30. 6.10. We order total costs of the emboldened items £3182.40 Employment Judge T.M. Garnon Judgment authorised by the