Ms L Whitehall v Ulverscroft Group Ltd: 2602737/2020

EMPLOYMENT TRIBUNALS

Case No 2602737/2020

Between

Ms L WhitehallClaimant

Ulverscroft Group LtdRespondent

Before

Employment Judge P Britton

Ms T Hand (instructed by Counsel) for claimant

Mr S Keene (instructed by Counsel) for respondent

Date 7 October 2022

JUDGMENT

The Employment Tribunal Judge gave judgment as follows:-

[1]The claim for failure to pay notice pay is dismissed upon withdrawal.

[2]I find it is just and equitable to extend time in relation to the claim for age discrimination.

[3]Case Management Orders accompany.

REASONS

[1]This claim today is before me at the direction of Employment Judge C Camp who sat at a telephone case management hearing on 8 October 2020 (see Bp 23 onward)1. He dismissed the claim for unfair dismissal for want of qualifying service.

[2]He observed that the Claimant’s claim for breach of contract (failure to pay notice pay) was misconceived as she had been paid the same and invited the Claimant to make objections to his proposal to strike out by 26 October 2020. The Claimant did not reply. I note it was an unless order. However the Claimant has through her Counsel today conceded that that claim is not viable. Thus, I dismiss it upon withdrawal.

[3]The remaining claim, which is one of age discrimination, Employment Judge Camp observed to be out of time. Therefore, he directed there be this Preliminary Hearing to determine whether it is just and equitable to extend time.

[4]During the hearing today Counsel for the Claimant has not submitted as such that the claim is in time. I will deal with that point when I come to my findings.

[5]On the basis that the claim is out of time section 123 (of the Equality Act 2010 (the EqA) applies. Thus(a) the claim must have been presented to the tribunal within three months of in this case the final event relied upon, namely the act of termination of the employment, or;

(b) such other period as the Tribunal thinks just and equitable.

[6]I of course start from the premise that the time limits are there to be observed strictly. Therefore, to extend time is the exception rather than the rule. Thus, the burden of proof is upon the Claimant to persuade me that it is just and equitable to extend time. As to the determination of what is just and equitable, the jurisprudence as to which I am most grateful for the skeleton argument of Mr Keene and which succinctly and accurately sets out the same, is for my purposes encapsulated in Adedeji v University Hospitals Birmingham NHS Foundation Trust per Underhill LJ – citation A2/2020/0025 Court of Appeal. Thus, having revisited the authorities on said topic he makes clear that the proper approach of the Tribunal is to consider all the circumstances of the case with particular focus on the length and reasons for the delay and the balance of prejudice.

[7]In reaching my decision I have read the witness statement of the Claimant and heard her sworn evidence under questioning. I have been taken to the bundle. Finally I have heard submissions. For the purposes of this decision I make the following findings of fact.

Findings of fact

[8]The Claimant was invited on the 23 March 2020 by Mark Merrill the Sales Manager of the Respondent to take part in a Skype discussion on 24 March 2020. She had no forewarning of what was to come. At the meeting she was dismissed it being said that her performance was unsatisfactory. She was aged 62 at the time. A letter confirming the dismissal followed dated 27 March 2020 (Bp 39-40). The first paragraph read: 1 Bp=bundle page. “Following your discussion with Mark Merrill on Tuesday 24 March 2020 I write to confirm the company’s decision to terminate your employment effective 31 March 20202…” And at the fourth paragraph: “You will already have received payment up to and including 31 March 2020. You will not be required to work your 4 weeks’ notice period; therefore this will be paid to you in lieu directly into your bank account in the normal way on 15 April 2020 together with 5.5 days accrued holiday. Your P45 will be sent to you shortly after this date. You are entitled to keep your car for the 4 weeks and Mark will be in contact with you regarding its return together with the company’s laptop, phone and credit card.”

[9]Part of the Claimant’s case is that she believed that she was therefore being dismissed on notice. Thus, the employment would end on 30 April 2020. I have read the submissions of Mr Keene on this point. From an objective standpoint I have no doubt whatsoever that the letter is clear, unequivocal and unambiguous. The employment is ending with immediate effect on 31 March 2020. The Claimant is going to be paid in lieu her notice entitlement in the next payroll run on 15 April 2020. As to the retention of the company car, we were of course by now into lockdown. The car was not needed because all the employees had been sent home for the purposes of working. Thus, Mr Merrill did not see it as a priority to collect it immediately given the restrictions on travel. I can see the logic in that decision. But in the mind of the Claimant, it reinforced here belief that the employment was still continuing in terms of a notice period. I think from what I saw today that the Claimant had, at least at the material time, a genuine misunderstanding of what is meant by the words payment in lieu of notice. That is a different thing from an objective appraisal of what the letter meant. But before me she accepted in questioning from Mr Keene that she knew that in lieu meant instead of. So on this issue the situation is equivocal.

[10]So moving forward I find that the effective date of termination was 30 June 2020. At that stage early conciliation was not started. Thus, s140B of the EqA cannot ride to the rescue and extend time for the duration of the certificate. The claim was presented on the 14 July 2020. Thus on presentation it was two weeks out of time.

[11]Although the letter objectively is as I have stated it to be, I take into account the subjective mindset of the Claimant in terms of evaluating her explanation and in terms of the context of all the circumstances of this case and applying the just and equitable test. I start with the standpoint that I have no doubt whatsoever from her demeanour today, that she was shocked to be dismissed with no forewarning and she was worried for her finances. Insofar as it assists me there is then a WhatsApp trail starting the next day. Over the next few days she was making overtures as to whether the Respect would allow her to remain on Furlough for a period of 3 months rather that the dismissal come into effect. She also was pleading that they change the reason 2 My emphasis. for the dismissal to redundancy rather than capability as she was concerned to the impact for her in a difficult labour market and also the potential that the reason could effect her ability to claim State benefits with the then risk that she might lose her house if she could not afford to finance it. The Respondent rejected all her requests.

[12]Also, the Claimant was already dealing with the most difficult of circumstances. Her former husband of some twenty years to whom she was still very close was by now in hospital suffering from Coronavirus. His condition deteriorated. Sadly he died on 4 April 202. Again, from her demeanour today and what she put in her witness statement and indeed her ET1, I have no doubt that this had a severe impact upon her. Afterall she could not go and comfort her former husband in hospital during those last weeks because of lockdown and the restrictions on hospital visits. More important there are two sons of that relationship. Both, I think I am correct in saying in their twenties, who were clearly devoted to their father. The impact upon them was colossal. Both came to return to live with her in her home. She clearly cared for them. One of them was in a state of considerable depression. I have no reason to doubt her. Couple that with the shock of being dismissed and her financial worries and the fact that she also herself was seeking counselling for her grief, and contemplation of what to do in terms of bringing a claim to the Employment Tribunal very much went on the back burner.

[13]What it means is that I find there was this considerable impediment on her mental processes occurring during this period and which meant that she did not really give any thought to what to do in relation to her dismissal. I think there was a sense of false security also in that she received a P45 which now gave her leaving date as 15 April rather than of course 31 March. That was unfortunate. Bear in mind the fragility of her mindset.

[14]So, in that context I find that the Claimant did not really give any thought to the prospect of proceeding against her former employer. She did not do any research as she made plain in her statement. She had all these other things on her mind and therefore was of course just about coping with extremely difficult circumstances, and therefore I find that understandable. As it is a friend of hers who clearly had a friend in a respected firm of lawyers in London, namely RSW, on or about 2 July 2020 suggested she might phone that friend and she gave her the personal mobile phone number of that solicitor. The Claimant contacted her on Saturday 4 July. This was only ever a telephone pro bono conference essentially at the behest of the friend. The Claimant therefore did not send any documents through to the solicitor. That solicitor also did not see the dismissal letter. But the Claimant told her inter alia about the P45, and on that limited knowledge which the solicitor had she therefore advised that even if the Claimant thought there was a 4 week notice period, given the P45 leaving date there was in terms of presenting the claim a 3 month deadline of 14 July for presentation and of course prior thereto she would need to contact ACAS for a conciliation certificate. The solicitor advised her that she should first however send a grievance to the Respondent. I obviously cannot explore the mindset of the solicitor, but it may well be that she had in mind the provisions at section 207B of TULCRA 1996 which relates to the utilisation of the grievance procedure, and which potentially could have a detrimental effect if a person wins in Tribunal in terms of a possible reduction of any award to reflect not first pursuing a grievance. Now Mr Keene is quite right to point out that that provision is capable of an interpretation that it is not necessary to bring a grievance prior to presenting a claim. But on the other hand perhaps out of an abundance of caution the solicitor was so advising although I can only speculate. In any event, pursuant to that advice the Claimant sent a grievance to the Respondent on 6 July: so the Monday after the consultation (Bp 41-42). She set out that she wished to raise a grievance based upon age discrimination in terms of the dismissal, and she also explained how to be dismissed had come as a shock out of nowhere “furthermore I have been in mourning following the death of my sons’ father due to Covid19”.

[15]She then set out why she thought the dismissal was unfair and asked for 3 months’ wages as compensation as a minimum otherwise “no choice but to take this matter further with ACAS”.

[16]The final paragraph referred to the advice she had had from RSW Law and that: “I should let you know I have no choice but to protect my position with an early conciliation via ACAS”. She gave a deadline by which she required a response prior thereto which was 11 July 2020. On 13 July she received an answer from the Respondent to the effect that they would not engage in a grievance process. Therefore, she immediately went to ACAS that day and got a certificate and issued her proceedings to the Tribunal on 14 July.

[17]So, we have an out of time period given my first findings of about 2 weeks.

Conclusion

[18]Given those findings, albeit the Respondent is of course prejudiced in the sense that it is faced with the expense of defending the claim but otherwise can deploy its evidence as is obvious from the Response (ET3), I find that it is just and equitable in all the circumstances to extend time. Thus, the Claim will proceed.

Conclusion

[1]This decision deals with the issue of remedy following a liability hearing on 3 -7 October 2022 at which the tribunal found that the Claimant was directly discriminated against because of her age. Unfortunately, there was insufficient time at the end of that hearing to determine the issue of remedy. The parties were able to conclude the evidence and submissions. The determination of the remedy issue was therefore adjourned. It took place at a meeting of the Tribunal on 26 October without the parties.

[2]Thankfully many of the issues in relation to remedy are no longer in dispute. What remains contentious is now confined to the following areas :2.1 The amount of compensation for future loss, if any, from 12 October 2020 (when the Claimant found temporary employment with the DWP) to an appropriate date;

2.2 Whether the Claimant should be awarded damages for loss of a car allowance;

2.3 The amount to be awarded for injury to feelings;

2.4 Whether there should be an award for aggravated damages; Page 1 of 5

2.5 Whether the compensation (other than injury to feelings) should be reduced to reflect the likelihood of the Claimant losing her employment in any event under the principles set out in Chagger v Abbey National plc and another

(2010) IRLR 47

THE FACTS

[3]The facts for the purposes of the remedy issue are not in dispute unless otherwise stated. Following the dismissal, which was effective from 31st March 2020, the Claimant was paid salary by way of notice to the end of April 2020. Although there is no payslip in the bundle for April it is now agreed the Claimant was paid to the end of that month.

[4]The Claimant made a number of applications for new employment from April 2020 onwards. There is no criticism by the Respondent of her efforts to mitigate loss from the date of dismissal to the point she found temporary employment with the DWP on 12 October 2020. Her employment with DWP became permanent on 29 July 2021 though it was not marked by any pay increase. The Respondent does not dispute that the Claimant is entitled to loss of earnings from the date of dismissal to 12 October 2020.

[5]From there however the positions of the parties diverge. The Claimant seeks loss of earnings from 12 October 2020 to the date of this hearing and beyond giving credit for the income she received. The Respondent’s position is that any award for loss of earnings should cease from 12 October 2020 when the chain of causation was broken and when the Claimant stopped looking for better paid employment.

[6]On the evidence we are satisfied the Claimant ceased her search for any alternative or better paid employment after she became employed by the DWP on 12 October 2020. There is no evidence of any job applications made from that date unlike the period prior to that when the Claimant made a large number of applications and has provided evidence of them in the bundle. The Claimant accepts in oral evidence that she did not make any job enquires after she became a permanent employee in July 2021 but we are satisfied that the Claimant made no applications for better paid employment from 12 October 2020. She has therefore failed to mitigate her loss beyond that point. In our judgment it is just and equitable not to make any further award for loss of earnings beyond 12 October 2020.

[7]In terms of the figures for the relevant period these are agreed. The Claimant was earning £543.52 per week when employed by the Respondent. She suffered loss of earnings from 1 May 2020 to 12 October 2020 being a period of 23 weeks. This comes to £12,500.96 (23 weeks x £543.52).

[8]The Claimant also suffered pension losses during that time. The amount of the pension loss is agreed at £20.89 per week which comes to £480.47 (£20.89 x 23).

[9]The Claimant was provided with a company car for her work. The Claimant’s unchallenged evidence was that she was also entitled to the personal use of the car. The Claimant seeks a loss of £5,000.00 per annum for the loss of benefit. The Respondent has not offered any alternative figures to challenge that amount. We accept the Claimant’s figures as reasonable. The loss in relation to the benefit of a car for personal use for the relevant period is £2,211.45 (23 x at £96.15). Page 2 of 5

[10]We now turn to the award for injury to feelings. The general principles that apply to assessing such awards were out in Prison Service v Johnson

[1997] IRLR 162

. The principles are as follows: injury to feelings awards are compensatory and should be just to both parties. They should compensate fully without punishing the discriminator. Feelings of indignation at the discriminator’s conduct should not be allowed to inflate the award. 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 that it is seen to be wrong. On the other hand, awards should be restrained as excessive awards could be seen as the way to untaxed riches. Awards should bear some broad general similarity to the range of awards in personal injury cases. We are required into account the value in everyday life of the sum in question by reference to purchasing power or by reference to earnings. Tribunals should bear in mind the need for public respect for the level of awards made. The matters compensated for by an injury to feelings award encompass subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.

[11]In Vento v Chief Constable of West Yorkshire Police (No2)

[2003] IRLR 102

the Court of Appeal identified three broad bands of compensation for injury to feelings and gave the following guidance:11.1 The ‘top band’ should be awarded in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the grounds of sex or race. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.00;

11.2 The ‘middle band’ is applicable where cases do not merit an award in the highest band;

11.3 The ‘lower band’ is appropriate for less serious cases such as where the act of discrimination is an isolated or one-off occurrence.

[12]The Second Addendum to the Presidential Guidance (which uprates the amounts each year in line with inflation) sets out the following figures which apply to cases after April 2019 but before April 2020. In line with the Guidance the uprated Vento bands are as follows: a lower band of £900.00 to £8,800.00 (less serious cases); a middle band of £8,800.00 to £26,300.00 (cases that do not merit an award in the upper band); an upper band of £26,300.00 to £44,000.00 (the most serious cases)

[13]The Claimant in this case seeks an award in the middle band of Vento. The Respondent argues that this case falls in the lower band and even then near the bottom of the lower band. It suggests a sum of £3,000.00

[14]In coming to our decision we have had regard to the fact that the Claimant’s distress would have been exacerbated by the fact that her former husband, and the father of her sons, had died around the same time as the act of discrimination. This would have added to the feelings of distress and upset. The Claimant always Page 3 of 5 believed that her dismissal was an act of age discrimination and it has taken lengthy proceedings for her to be vindicated. Her allegation was not treated seriously by the Respondent when she complained. She lost her job and had to undergo a period of unemployment which would obviously have been upsetting.

[15]On the other hand we note that the Claimant did not seek advice from her GP as to any medication for stress or associated symptoms nor did she apparently need or seek counselling. It was a single act, albeit a serious one of losing one’s employment, rather than any lengthy long-term campaign. The Claimant was able to find alternative employment before too long.

[16]In all of the circumstances we consider that this case falls within the lower Vento band and furthermore around the middle of that band. We consider the appropriate level of the award to be £5,000.00

[17]The Claimant is of course entitled to interest on injury to feelings. The applicable rate of interest is 8%. It was 940 days from the date of the act (which was 31 March 2020) to the date of the remedy determination. The daily rate of interest is £1.09. The amount of the interest is therefore £1,024.60.

[18]We do not consider that this is a case where the Respondent has acted in a high-handed or oppressive manner. It is not therefore appropriate to make an award for aggravated damages.

[19]We do however find that there was at least a 50% chance that if age discrimination had not been a factor that the Claimant would have lost her employment in any event. We heard evidence from the Respondent, which we accept, that the business was suffering losses and these needed to be stemmed through dismissal of staff. The Claimant was one of three people at risk but in reality the state of affairs was such that it was either herself or Ms Coetzer who were likely to lose their employment. The decision came down to the Claimant and Ms Coetzer. Had age discrimination not been a factor there was at least a 50% chance the Claimant would have been chosen for redundancy. We therefore consider it appropriate to reduce the award (other than injury to feelings) by 50% under the principles established in Chagger.

[20]A summary of the award is therefore as follows: Loss of earnings……………………… £12,500.96 Loss of pension……………………….… £480.46 Loss of car allowance………………….£2,211.45 Total…………………………………… £15,192.88 Less 50% reduction…………………....£7,596.44 Page 4 of 5 Add award for Injury to feelings……....£5,000.00 Interest on injury to feelings…………..£1,024.60 Total award…………………………………£13,621.03