Mrs G A EverettMs V NikolaidouMs C Whitehouse (instructed by Counsel) for claimantDate 8 August 2017
JUDGMENT
The unanimous judgment of the Employment Tribunal is that[1]The complaints alleging direct sex discrimination, direct maternity leave discrimination, and direct pregnancy discrimination were not well founded and were dismissed.[2]The complaint of ordinary unfair dismissal under section 94 of the Employment Rights Act was well founded.[3]The Claimant did not contribute to her dismissal, nor are any reductions to her award of compensation to be made by reason of the principles in the case of Polkey.[4]The Tribunal will reconvene on a date to be notified to the parties to determine remedy for the unfair dismissal; and the cross- applications for costs.
REASONS
[1]Written reasons are provided for the above judgment because the judgment was reserved. The reasons are provided only to the extent that the Tribunal considers it necessary to do so in order for the parties to understand why they have won or lost. Further they are only provided to the extent that the Tribunal considers it proportionate to do so.[2]All findings of fact were reached on the balance of probabilities. Preliminaries[3]By a claim presented on 26 February 2016, the Claimant, also known as Ms Pullin but referred to in these reasons as Mrs Stower, complained that she had been treated less favourably by her employment being terminated just prior to her pregnancy following her recent marriage. She alleged that this constituted direct discrimination because of maternity leave under section 18(4) of the Equality Act 2010 (“the 2010 Act”); direct discrimination because of sex under section 13(1) of the 2010 Act; and direct discrimination because of pregnancy under section 19(2)(a) of the 2010 Act.[4]In addition, she complained that the notice of termination of her employment at a short meeting with Mr Mark Abel, Managing Director of the Group of which the Respondent was a part, on 29 October 2015 constituted unfair dismissal. This complaint was brought under sections 94 and 98(4) of the Employment Rights Act 1996.[5]By a response and grounds of resistance which were presented in early April 2016, the Respondent set out the grounds on which they intended to resist the claim. Evidence and Documents Adduced[6]The parties agreed on the contents of a bundle of documents which consisted of approximately 170 pages to be used at the hearing. It was marked [R1]. In addition, at the commencement of the hearing the Respondent produced a list of issues [R2] with annotations. They also produced a cast list marked [R3].[7]The Claimant also produced a list of issues [C1] which was superseded by a revised agreed list of issues after discussions during the hearing, marked [C3]. Further, the Claimant produced a chronology marked [C2].[8]The Tribunal heard evidence from the witnesses on behalf of the Respondent first, pursuant to the parties’ prior agreement to this effect. The witnesses were8.1 Ms Jodie Douglas (née Covell) Office Manager for the Respondent from 7 September 2015, whose witness statement was marked [R4];8.2 Mr Mark Abel, Managing Director of the CS Group, whose witness statement was marked [R5];8.3 Mr Michael Gray, witness statement [R6], Director of the Respondent company. He commenced employment with the Respondent on 12 January 2015 as a Senior Maintenance Engineer.8.4 Ms Billie Hardy, Accounts Assistant with the Respondent from 1 October 2013 to 12 June 2015, and then from 12 August 2015 she worked for another part of the Group, Cool Systems Holdings Ltd from 12 August 2015 in the role of HR Manager. Her witness statement was marked [R7].[9]The Respondent also relied on a witness statement from Ms Emma Brown, who worked in the Accounts department of Cool Systems from August 2011 the gist of which was that she had taken a period of maternity leave in the latter half of 2014. Her witness statement was marked [R8], and she did not give evidence live.[10]Mrs Stower gave evidence on her own behalf and relied on two witness statements marked [C5] and [C6] as her evidence in chief. She also relied on a witness statement from Mr Wayne Canfer her former line manager, witness statement [C7]. He did not give live evidence in the event.[11]It was not disputed that Mr Canfer had previously worked as Service Manager for CS Maintenance which was part of the Cool Systems Group from September 2009. He was the Claimant’s manager when she commenced employment with the Respondent in August 2011. He left the employment of Cool Systems after it was purchased by C & L Facilities in December 2012, for personal reasons in May 2013. He was then re-employed by the Respondent in August 2014 as Operations Manager based in their Braintree office. In that capacity, he managed a team consisting of Wendy Rowley, the Claimant, and Emma Thearle. The Respondent terminated his employment on 14 August 2015 due to a loss of confidence in him by the Board.[12]Finally, the Claimant tendered a statement from Wendy Rowley a former colleague at the Respondent who gave notice of termination of her employment by retirement on 9 October 2015, to take effect some three months later. The statement was signed and dated 7 September 2017 (sic). The Tribunal marked it [C4]. Ms Rowley did not give evidence live.[13]An application was made at the beginning of 10 February 2017 for a witness order to be made to compel the attendance of Mr Canfer. The Tribunal considered the written application made by the Claimant and oral submissions. The thrust of the application was that Mr Canfer had previously voluntarily provided a witness statement in support of the Claimant’s unfair dismissal complaint and that there had been no indication until shortly before the time when it was anticipated that he would be giving evidence that he would not attend the hearing. The Claimant was concerned that Mr Canfer may have been intimidated by the Respondent. She relied on the fact that Ms Rowley had communicated to them shortly before she was due to give evidence that she wanted to withdraw the use of her statement in the proceedings. It appeared to the Tribunal that the earlier communication from Ms Rowley of 23 October confirmed that she had no objection to her statement being used but she ruled out attendance at court and described that she had “already got myself in a state” about this. It appeared that at best she was reluctant to become involved in this dispute.[14]The subsequent (9 February 2017) communication that she may no longer want to have her statement used in the litigation as communicated by email apparently from Ms Rowley to someone by the name of Yvonne Slaughter who then apparently forwarded the email to Mr Abel who in turn forwarded the email to his representative Ms Hall, appeared, Ms Whitehouse submitted, to be odd given Ms Rowley’s earlier position of consenting to the statement being used. It was odd that she was now requesting that the statement was withdrawn.[15]By the time this document reached the Tribunal, the Tribunal had already read Ms Rowley’s witness statement as part of the evidence. There was no action the Tribunal could take in relation to her request. Ms Rowley’s indication that she did not now consent to her statement being used did not appear to the Tribunal to be a change of attitude. She had self-evidently been very reluctant to participate in the litigation since October 2016 at the latest.[16]The position in relation to Mr Canfer was that he had not responded to attempts on behalf of the Claimant to communicate with him. The Claimant was therefore concerned in these circumstances that agents of the Respondent may have intimidated or otherwise interfered with her witnesses. It was against this background that the Claimant asked for a witness order in relation to Mr Canfer.[17]The Respondent vehemently opposed any suggestion that they had interfered with any of the Claimant’s witnesses.[18]The Tribunal considered that given Mr Canfer had produced a signed and detailed witness statement which the Tribunal had read on behalf of the Claimant and that the Respondent had not sought to call him to substantiate any of the allegations being made against the Claimant, it was not necessary or proportionate to issue a witness summons to compel Mr Canfer’s attendance.[19]Indeed, in his evidence Mr Abel had confirmed to the Tribunal that as far as he was concerned he believed that the Claimant was a capable employee. Closing submissions[20]At the end of the evidence, directions were given for the presentation of written closing submissions. Subsequently the dates for provision of the submissions were varied following application by the parties. In the event the Tribunal received written submissions from the Respondent on 16 March 2017 and in reply dated 31 March 2017. Submissions from the Claimant were similarly received on 16 and 31 March 2017. Ms Whitehouse appended the agreed list of issues to her initial submissions; and her submissions in reply to those of the Respondent were by way of annotations to the Respondent’s submissions.[21]At the commencement of the hearing it was agreed that the Tribunal would address matters of liability first and in relation to the unfair dismissal would also address contributory fault and the effect, if any, on the award of compensation by reason of the principles in the case of Polkey. The Tribunal did not specifically address the issue of the ACAS uplift and took into account paragraph 67 of the Respondent’s submissions in reply in which it was stated that this had not been included as a matter to be addressed. In those circumstances, therefore, that issue was not determined in this Judgment although both parties referred to this issue in their closing submissions. That issue can be dealt with at the remedy hearing.[22]The parties appeared to be making cross applications for costs. The Tribunal considered the most convenient way of dealing with this matter was to adjourn the costs applications to the remedy hearing in relation to the unfair dismissal.
Relevant law
[23]The relevant law in respect of each of the complaints was set out in the Claimant’s Counsel’s written submissions. Ms Hall also set out some applicable law, but did not dispute any of the contentions of law in Ms Whitehouse’s submissions. The Tribunal endorsed the statement of applicable law in Ms Whitehouse’s written submissions as accurate. In those circumstances, it was unnecessary and disproportionate to repeat them in these reasons.[24]For the avoidance of doubt however in relation to the issue of comparators, the Tribunal records that comparators are not needed in relation to the pregnancy and maternity leave discrimination claims. The issue for the Tribunal in respect of those claims was whether the Claimant had been treated unfavourably because of seeking to exercise her right to maternity leave or because of her pregnancy. It was only in relation to the direct sex discrimination claim that the law required less favourable treatment than an actual or hypothetical man. Findings of Fact, Issues and Conclusions[25]The agreed revised List of Issues is set out in full.a. A. Direct discrimination because of maternity leave (section 18(4) Equality Act 2010);b. B. Direct discrimination because of sex (section 13(1) Eq Act 2010);c. C. Direct discrimination because of pregnancy (section 18(2)(a) Eq Act 2010);d. D. Unfair Dismissal (section 94 Employment Rights Act 1996) A. Direct discrimination because of maternity leave (section 18(4) Equality Act 2010)1 Did the Respondent treat the Claimant unfavourably because she was seeking to exercise her rights to maternity leave? 1. In the weeks/months surrounding her wedding on 5 July 2015, did the Claimant express an intention to become pregnant after getting married: a) In discussions with her colleagues about actively trying for a baby following her wedding in July 2015; b) Whilst discussing her rationale for giving up smoking with colleagues around the time she went to Italy in September 2015? 2. At a meeting on 19th August 2015: a) Did Mr Abel inquire as to whether the Claimant had any plans to become pregnant? b) Did the Claimant indicate any intention to exercise her right to c) Did Mr Abel advise that it would be difficult to replace the Claimant d) If so, was Mr Abel’s enquiry prompted and/or hastened by the fact 3. Was the Claimant treated unfavourably by the Respondent during or at any time after the meeting on or around 19 August 2015 by way of the following list: a. By asking her personal questions about her intention to exercise her right to maternity leave on 19 August 2015? b. By conducting a disciplinary meeting on 15th September 2015? c. By issuing a “verbal warning” (in writing) on 17th September 2015? d. By advertising for the Claimant’s replacement on 13th October 1 “A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise or has sought to exercise, the right to ordinary or additional maternity leave”e. By conducting a second disciplinary meeting on 26th Octoberf. By issuing a written warning on 26th October 2015?g. By failing to allow a sufficient period for the Claimant to appeal before instituting further disciplinary proceedings?h. By dismissing the Claimant summarily on 29th October 2015 in circumstances that were both procedurally and substantively unfair? [see unfair dismissal below]i. By refusing to accede to the Claimant’s requests to be provided with the disciplinary procedure on or around 5th November?j. By failing to adequately consider the Claimant’s grounds of appeal?k. By failing within a reasonable period to determine the Claimant’s appeal?l. By moving the Claimant’s desk on 14 September 2015? B. Direct Discrimination because of sex (section 13(1) Equality Act 20102 Prior to the start of the protected period/pregnancy, did the Respondent treat the Claimant less favourably than it would treat others because of her sex? 4. When did the Claimant’s pregnancy/the protected period commence? [The Claimant avers it was 22 October 2015] 5. In the weeks/months surrounding her wedding on 5 July 2015, did the Claimant express an intention to become pregnant after getting married? a. In discussions with her colleagues about actively trying for a baby following her wedding in July 2015? b. Whilst discussing her rationale for giving up smoking with colleagues? c. Around the time she went to Italy in September 2015? 6. At a meeting on 19th August 2015: 2 “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” a. Did Mr Abel inquire as to whether the Claimant had any plans to become pregnant? b. Did the Claimant indicate any intention to exercise her right to c. Did Mr Abel advise that it would be difficult to replace the Claimant d. If so, was Mr Abel’s enquiry prompted and/or hastened by the fact 7. Did the Respondent treat the Claimant unfavourably because of her sex: a. By asking her personal questions about her intention to exercise her right to maternity leave on 19 August 2015? b. By conducting a disciplinary meeting on 15th September 2015? c. By issuing a “verbal warning” (in writing) on 17th September 2015? d. By advertising for the Claimant’s replacement on 13th October e. By conducting a second disciplinary meeting on 26th October f. By issuing a written warning on 26th October 2015? g. By failing to allow a sufficient period for the Claimant to appeal before instituting further disciplinary proceedings? C. Direct discrimination because of pregnancy (section 18(2)(a) of Equality Act 2010)3 During the protected period, did the Respondent treat the Claimant less favourably because of her pregnancy? 8. When did the Claimant’s pregnancy/the protected period commence? The Claimant avers it was at the end of October 2015. 9. In the weeks/months surrounding her wedding on 5 July 2015, did the Claimant express an intention to become pregnant after getting married? a. In discussions with her colleagues about actively trying for a baby following her wedding in July 2015? 3 “A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably – (a) because of the pregnancy” b. Whilst discussing her rationale for giving up smoking with colleagues? c. Around the time she went to Italy in September 2015? 10. At a meeting on 19th August 2015: a. Did Mr Abel inquire as to whether the Claimant had any plans to become pregnant? b. Did the Claimant indicate any intention to exercise her right to c. Did Mr Abel advise that it would be difficult to replace the Claimant d. If so, was Mr Abel’s enquiry prompted and/or hastened by the fact 11. Did the Respondent treat the Claimant unfavourably because of the pregnancy: a. By dismissing the Claimant summarily on 29th October 2015 in circumstances that were both procedurally and substantively unfair? [see unfair dismissal below] b. By refusing to accede to the Claimant’s requests on 30 October 2015 and 3rd November 2015 to be provided with a copy the Claimant’s disciplinary procedure? c. By failing to respond and/or investigate the Claimant’s appeal against dismissal dated 10 November 2015? d. By failing to determine the Claimant’s appeal? The Respondent contends that this claim cannot succeed as the Claimant was not subjected to any less favourable treatment during her ‘protected period’ as the alleged less favourable treatment took place before the Claimant became pregnant D. UNFAIR DISMISSAL Was the Claimant unfairly dismissed contrary to the provisions of section 94 of the Employment Rights Act 1996? The Claimant was employed between 30 August 2011 and 30 November 2015. 12. What was the reason for the Claimant’s dismissal? [NB. The Respondent asserts that the Claimant was dismissed for the matters set out in the letter dated 30 October 2015]. Conduct 13. Did the Respondent have a reasonable belief in the Claimant’s misconduct? 14. Was this belief based upon a reasonable investigation? a) What evidence was there of the Claimant verbally interfering with other members of staff and continually harassing work colleagues? b) What evidence was there for the Claimant’s alleged unsatisfactory standard of work and poor performance? c) What evidence was there that the incomplete invoicing valued at £500,000 was the responsibility of the Claimant? d) What evidence was there the Claimant sent a photo of the family tree to Mr. Canfer? e) What evidence was there the Claimant was drunk on 29th October 2015 as alleged by the Respondent? f) What evidence was there the Claimant caused mayhem in the office on 29th October 2015? g) What evidence was there for the specific allegations made at the disciplinary meetings:- (i) No respect for the new management regime? (ii) Disobeying management instruction? (iii) Bad attitude? (iv) Creating a bad atmosphere in the office? (v) Making life uncomfortable for other members of staff? (vi) Failure to devote time and abilities in normal working hours? (vii) Poor or little communication and withholding information to and with management, other members of staff and clients? Capability 15. If (which is unclear), the Respondent relies on capability in dismissing the Claimant: a) What evidence was there for the Claimant’s alleged unsatisfactory standard of work and poor performance? b) What evidence was there that the incomplete invoicing valued at £500,000 was the responsibility of the Claimant? c) What evidence was there for poor or little communication and withholding information to and with management, other members of staff and clients as per the disciplinary meetings? 16. Was the Claimant given adequate time to rectify any poor performance? 17. Did the Respondent follow its own capability procedures? General 18. Did the Respondent act reasonably or unreasonably treating the conduct/poor performance as sufficient reason for dismissing the Claimant? 19. Did the Respondent carry out a fair procedure when disciplining/dismissing the Claimant? The Claimant complains that the Respondent’s procedure was unfair by4: a. Instituting fresh disciplinary proceedings on 29th October 2015, before the deadline had passed for the Claimant to appeal a disciplinary sanction imposed on 27th October 2015; b. Unilaterally and without warning, calling a disciplinary hearing without giving any notice to the Claimant; c. Failing to notify the Claimant that she had the right to be accompanied at the disciplinary hearing; d. Effectively preventing (by lack of notice – see above) the Claimant from being accompanied at the disciplinary hearing; e. Failing to set out the allegations made against the Claimant at the disciplinary hearing; f. Failing to take minutes of the disciplinary meeting so that the Claimant could launch an effective appeal; 4 Non-exhaustive list g. Failing to give the Claimant an opportunity to address the Respondent’s allegations either: In the meeting; After the meeting (if capability is being averred as the reason for the dismissal); h. Failing to consider any mitigation that the Claimant might have; i. Unreasonably taking into account (recent) prior disciplinary action that was to be the subject of an appeal; j. Conversely, unreasonably failing to take into account a prior unblemished disciplinary record prior to the recent disciplinary action; k. Unreasonably failing to take into account the Claimant’s length of service; l. Failing to follow the ACAS Code of Practice;m. Failing to follow its own disciplinary policy: A> In respect of misconduct; B> In respect of capability;n. Failing, unreasonably on two occasions, to provide the Claimant with a copy of its disciplinary policy following her dismissal;o. Failing to consider, adequately or at all, the Claimant’s grounds of appeal against dismissal. 20. Did the decision to dismiss the Claimant fall within the band of reasonable responses available to the Respondent? 21. Did the Respondent consider any alternative sanctions open to it other than dismissal? 22. Is the Claimant entitled to a 25% uplift for the Respondent’s unreasonable failure to follow the ACAS Code of Practice? 23. If the dismissal is held to have been unfair, should any compensation be reduced: a. Did the Claimant contribute towards her dismissal? If so, by what %? b. Would the Claimant still have been dismissed if a proper procedure had been followed? (i.e. Polkey reduction) Outline chronology 30 August 2011 The Claimant commenced employment with CS Maintenance, a part of Cool Systems Group (“CS Group”) as Maintenance Coordinator based in the West Horndon office. Her line manager was Wayne Canfer. December 2012 Cool Systems Group purchased the business of C & L Facilities based in Braintree, Essex. April 2014 C S Maintenance and C & L Facilities merged into one company, the Respondent, located in Braintree. 15 July 2015 Claimant got married. Circa 14 August 2015 Wayne Canfer was dismissed. 19 August 2015 Conversations between Claimant and Mark Abel – contents disputed. 3 September 2015 Claimant sent welcoming message to Jodie Douglas her new manager about to start (p.71). 7 September 2015 Jodie Douglas commences employment with Respondent as office manager. 8, 9 & 10 September 2015 Jodie Douglas has meetings/“induction” with Mark Abel. 7 & 11 September 2015 Claimant on annual leave. 14 September 2015 Claimant returned to work - desk had been moved so she was facing the wall. 8.50am Jodie Douglas to issue Claimant with verbal warning (p.73). 15 September 2015 Jodie Douglas had disciplinary meeting with the Claimant (pp.74-75). 17 September 2015 Letter handed to Claimant by Mark Abel recording “verbal warning” in relation to misconduct (pp.78-79). 9 October 2015 Wendy Rowley gave Respondent written notice of intention to retire on 31 December 2015 (p.83A). 13 October 2015 Respondent advertised for three positions online (p.85A). 26 October 2015 Mark Abel in management committee meeting noted that he would be hiring “Rachel to replace” the Claimant. 26 October 2015 Disciplinary meeting held with Claimant re misconduct (pp. 88-89). 27 October 2015 Claimant received written warning dated 26 October (p.90). 29 October 2015 Claimant dismissed on notice in brief meeting with Mark Abel. 30 October 2015 Claimant requested copy of Respondent’s disciplinary procedures by email (p.30) indicating that she was going to appeal against her recent disciplinary. Respondent offered Claimant’s job to Rachel. 31 October 2015 Letter confirming dismissal dated 30 October sent to Claimant (p.93). 3 November 2015 Claimant requested disciplinary procedures again (p96) in letter addressed to Mr Kelly, CEO. Indicated that she intended to appeal. 4 November 2015 Respondent indicated on social media that all 3 advertised positions had been filled (p97). 5 November 2015 Respondent (Mr Kelly) refused to provide copy of disciplinary procedures to Claimant (p.98) and told her her appeal was not duly presented and out of time. 10 November 2015 Claimant sent in grounds of appeal against dismissal (pp.99-100). 23 November 2015 Claimant chased appeal against dismissal. 4 December 2015 Claimant started ACAS EC procedure.[26]It was confirmed in closing submissions on the part of the Respondent that they justified the dismissal on the basis that it was by reason of conduct and that was a potentially fair reason under section 98(2)(b) of the 1996 Act. However, it was also asserted that the reasons for the Claimant’s dismissal were those matters set out in a letter dated 30 October 2015 (p.93), matters which fell in the potentially fair categories of conduct and capability.[27]There was no dispute that the Claimant was dismissed on notice by the Respondent on 29 October 2015. It was equally not disputed by the Respondent that this was done orally by Mr Abel. The dismissal was confirmed to the Claimant by a letter dated 30 October 2015 (pp93 - 94) which was a Friday. The Respondent relied on the factual matters set out in that letter. In particular, the second paragraph of the letter stated: “Despite a verbal and written warning and several minuted discussions with your line manager and senior management your standard of work remained unsatisfactory, as set out in your contract and accompanying employee handbook. You continued to fail to carry out all reasonable instructions and follow our rules and procedures that are set, you also failed to devote your whole time, attention and abilities to the business during normal working hours and you continued to harass other employees. At the hearing you offered little response to these points.”[28]The letter continued that as per the Claimant’s statement of main terms of employment she was entitled to one month’s notice from the company to terminate her employment, and that her final salary would be paid on Monday 30 November 2015 which was the normal monthly pay run date. The letter also stated that that would be the date on which her employment with the Respondent officially terminated.[29]The fifth paragraph of the letter informed the Claimant that she had the right to appeal against Mr Abel’s decision and that if she wished to do so she should write to Steve Kelly, CEO within five working days giving the full reasons why she believed the disciplinary action taken against her was too severe or inappropriate.[30]In assessing whether this was a fair dismissal the Tribunal had regard not only to the statutory test in relation to fairness which was set out in section 98(4) of the 1996 Act and the ACAS Code of Practice on Disciplinary Procedures but also to the admitted circumstances of the dismissal and to our findings of fact.[31]The first stage of the process was to determine whether the dismissal was for the reason relied upon by the Respondent, the burden of proving the reason for dismissal lying on the Respondent. It is well established that the reason for the dismissal of an employee is “a set of facts known to the employer, or it may be of beliefs held by him, which caused him to dismiss the employee”: Abernethy v Mott, Hay & Anderson [1974] ICR 323 CA. For this reason, therefore the Tribunal had to decide what the reason for dismissal was and to make that determination in relation to the discrimination claims brought by the Claimant.[32]There was in fact a considerable degree of agreement about the background facts although that did not have a mitigating effect on the level of contention between the parties.[33]The Claimant’s case was that in the run up to her wedding in July 2015 and thereafter before conceiving, she talked about and shared with her colleagues her intention to have a baby. Whilst there was dispute between the parties as to whether Mr Abel was aware of this prior to September 2015, he certainly accepted that by very early September 2015 he was aware of this intention. In particular, the Claimant argued that during a conversation with Mr Abel a week or so after her previous manager Mr Canfer’s employment was terminated, Mr Abel asked her to inform him as soon as she could if she became pregnant and needed to take time off for pregnancy. Mr Abel initially denied having had this conversation. The Tribunal considered that he subsequently partly accepted that this issue had been discussed at about that time.[34]We considered that it was likely that the Claimant would have had a clearer recollection of this conversation than Mr Abel. However, even accepting the Claimant’s evidence about the conversation, the Tribunal did not consider that the effect was that Mr Abel indicated that he did not want the Claimant to take time off or that he had a negative approach to a possible pregnancy or maternity leave. He simply asked to be given as much notice as possible.[35]In assessing the evidence, the Tribunal took into account the general background which was not in dispute that at about this time the Respondent was facing various financial and organisational challenges which had in part led to the termination of the employment of Mr Canfer. Indeed, his replacement was not someone with an engineering background like Mr Canfer’s, but was an Office Manager in the form of Ms Douglas.[36]It was also relevant and it was not disputed that Mr Abel recruited Ms Douglas as Mr Canfer’s replacement knowing that she was due to get married by the end of 2015. To that extent therefore there was no difference materially between the position of the Claimant and of Ms Douglas. Indeed, Mr Abel recruited Ms Douglas to a more senior position as the Claimant’s Manager.[37]It was also relevant and it was not disputed that one other member of staff Ms Brown, had taken maternity leave. In her witness statement, she described that this had taken place from the very end of 2014 and that Mr Abel had been supportive and flexible about her return to work. The Tribunal also noted that the other female witness that we heard from as an employee of the Respondent, Ms Hardy, was also a young woman, apparently, like Ms Douglas and the Claimant, of child-bearing age.[38]Finally, in this context, the Tribunal ascertained in hearing evidence about the 29 October termination of the Claimant’s employment that Mr Abel had been at home on that day away from the office looking after his young children.[39]The picture therefore in the background was not one which tended to point towards discrimination because of maternity leave or pregnancy. Indeed, the only direct evidence that the Claimant relied on in support of her contention that there was a negative approach towards maternity was the question by Mr Abel in relation to when she proposed to take maternity leave. The other matters relied on by the Claimant as background tending to point to discrimination were arguments that there had been a breach by the employer of the statutory code of practice of the EHRC (para 8.22); and other matters relating to the manner in which the Respondent dealt with the Claimant’s employment from September to October 2015. These were characterised by the Claimant as unanswered or evasively answered questions. The Claimant similarly relied on the Respondent’s conduct during the proceedings and accused the Respondent of having given unsatisfactory disclosure.[40]The Tribunal fully accepted that the Claimant had discussed her wishes to become pregnant with friends in the office and that she had also given up smoking around the time of her wedding again with a view to facilitating a healthy pregnancy. It was also not disputed that the date of commencement of the pregnancy was taken as 22 October 2015. However, the Claimant did not have this pregnancy confirmed until attendance at her doctors’ surgery for a pregnancy test in the first week of December 2015. She indicated that she had taken a home pregnancy test before that. The Tribunal accepted that it was likely that if the last monthly period was on 22 October 2015 the home pregnancy test was unlikely to have occurred until shortly before the expiry of notice of termination of the employment. The Claimant had not therefore established that she was pregnant before being given notice of termination of her employment on 29 October 2015, and certainly not that the Respondent was aware of her pregnancy during the employment which ended on 30 November 2015.[41]At the time that she was recruited, Ms Douglas planned to get married in December 2015. Whilst accepting that the Claimant had given up smoking and had either stopped drinking altogether or greatly restricted her consumption of alcohol, the Tribunal did not consider that this was a matter which would necessarily have been noticed by Mr Abel, at least not immediately. Indeed, however unfair and erroneous it was, the tribunal found that Mr Abel’s belief on 29 October 2015, her last day in the office, was that the Claimant had consumed alcohol that day.[42]Also, there was evidence that the Respondent let other members of staff go at about the same time as Mr Canfer lost his employment (Claimant’s witness statement para 16). There was no suggestion that any of those dismissed members of staff was pregnant or anticipating taking maternity leave. The evidence painted a picture of reorganisation and financial challenges for the Respondent at the material time. The Tribunal also took into account that this sort of a background can be consistent with, but not determinative of discrimination on grounds of sex and/or in relation to maternity/pregnancy.[43]The Claimant placed considerable emphasis on the discussion about her prospective pregnancy with Mr Abel on 19 August 2015. She argued that it was only after this meeting that the first of the disciplinary proceedings took place on 15 September 2015 when previously the Claimant had enjoyed an unblemished disciplinary record. The Tribunal accepted that the Claimant’s disciplinary record was unblemished up to that point. However, the other new, and in the Tribunal’s view, material element was the recruitment of Ms Douglas. It was not in dispute that the Claimant had had no difficulties when managed by Mr Canfer. However, it was apparent as already noted that Ms Douglas had a very different background not being from an engineering background and her relationship with the Claimant professionally was not a good one. The documents which were produced relating to discussions between management showed that from the start of her employment Ms Douglas found it challenging working with “the girls in the office” and described the Claimant and her colleague Ms Thearle in particular as making comments and deliberately making life difficult for her. She reported this in a management meeting on 14 September 2015.[44]It was apparent also from the chronology as set out above which was also effectively agreed that the Claimant was not at work when Ms Douglas started on Monday 7 September. The Claimant had known that Ms Douglas would be starting work then. For this reason, the Claimant, who had previously worked with Ms Douglas, sent her a text message on 3 September 2015 congratulating her on being appointed to the job and welcoming her to the team. She also explained that she was sorry that she would not be there to meet Ms Douglas on her first day as she was going on a weekend break to Italy. She stated that she was looking forward to meeting Ms Douglas on Tuesday 8 September.[45]Prior to Ms Douglas’ arrival, the only evidence of any difficulties for the Claimant at work was a note in the minutes of a management meeting held on 2 February 2015 at which Mr Kelly, Mr Canfer, Mr Paul Jackson a Director, and Mr Abel were present. Notes (pp63 – 66) were taken by Ms Brown. One of the issues that was discussed was about the delineation of roles in relation to the work planner and scheduling, and a lack of communication around it. A comment was made by Mr Jackson that the planner should be run by Emma Thearle “without the involvement” of the Claimant. In another part of the discussion in the same meeting it was noted that communication in the C & L office needed to be better and that the Claimant needed “to be kept under control”. This latter comment was made by Mr Abel. Mr Jackson commented that it helped to be blunt with the Claimant and Mr Kelly indicated that he believed that she had the “wrong attitude”.[46]The Tribunal considered that it was apparent from the evidence that the Claimant was rather more outspoken and apparently confident than were her colleagues who gave evidence. However, this did not mean that she was doing anything wrong in terms of her job performance. Rather, the evidence suggested very strongly that the Claimant used her initiative and dealt with matters promptly rather than leave them for someone else. This is considered an asset in the workplace in many contexts. Sadly, she was criticised later for using her initiative in this way, and indeed the discussion in the management meeting in February 2015 about her involvement in the planner also seemed to be see this quality as a failing.[47]Mr Canfer confirmed that at some point he was asked by the Board to speak to the Claimant about her verbally interfering with other members of staff. It was likely that this related to the management discussion in February 2015 just referred to, although Mr Canfer was unable to specify when this request was made of him. His witness statement indicated that he did not agree with the other managers’ interpretation of the apparent interfering. His perception was that the Claimant was a capable employee who had a good grasp of the systems and processes in place. His perception was that she conversed with other team members to offer assistance and training with the new system in performing their functions. Nonetheless in his witness statement Mr Canfer indicated that he had complied with the Board’s instruction and spoken with the Claimant about her approach. He stated that he also spoke with the other team members to assist them with their concerns. This merely constituted evidence of ordinary management interaction with a member of staff.[48]Mr Canfer noted that there was constant tension within the office. However, he attributed the tension to other factors partly related to the changing structure of the business and the difficulties of integration and management. These observations corresponded with contemporaneously documented perceptions of others, and they appeared to the Tribunal to be accurate.[49]On the other hand, the examples of alleged misconduct by the Claimant relied on by the Respondent did not amount to such, in the Tribunal’s view. Further, as is set out below, given the many failures to identify and give details of the alleged misconduct to the Claimant, the Tribunal also considered that the managers had no adequate or proper basis for concluding that the reports of misconduct by the Claimant were accurate.[50]Mr Canfer’s assessment that the Claimant was the most familiar with the processes was somewhat confirmed by the evidence we heard about the invoices. The Respondent incorrectly believed, at about the time that Mr Canfer’s services were dispensed with, that there was a backlog of some five months in relation to invoices. Up to that point the Claimant, Ms Rowley, Ms Thearle and Ms Brown had all been responsible for chasing invoices, with the Claimant, Ms Rowley and Ms Brown each being responsible for chasing 27% of the invoices, and Ms Thearle who was a more recent and less experienced member of staff, being responsible for chasing 19%.[51]It was then not disputed that shortly after Ms Douglas was recruited the Claimant was asked to deal with all or virtually all the invoices. Thus, the responsibility given to her in this respect was greatly increased. The management records show that in the meeting with Ms Douglas on 15 September 2015 (pp.74 and 78) the Claimant indicated that she did not understand the allegations being levelled against her and was unsure of the priorities and importance of the duties within her role. She was recorded as stating that she thought there had been too many changes in one week and she requested help with invoicing. She was not given the clarification she requested at that meeting.[52]It was next recorded that the issue of invoices and invoicing was raised again at a meeting with Ms Douglas on 23 October 2015. Ms Douglas indicated that the Claimant needed to get invoicing numbers down to single figures by the following Friday. The Claimant responded that the invoicing had gone down and that in a couple of days “they” would have it done. Ms Douglas challenged her as to why there was more than one person working on it and told the Claimant that it was her task to complete and asked why she had asked Emma Brown to help. Ms Douglas asked about who had done invoicing before Ms Brown and indicated that she wanted the invoicing done by the Claimant only and that Ms Hardy would not be helping her after 23 October the date of the meeting.[53]There was some further discussion about the fact that the Claimant was still getting communications and demands on her time in relation to other tasks which she had previously done and not just invoicing. Ms Douglas expressed the view, in relation to Emma Brown helping, that the Claimant was doing things “behind her back”. When this was raised with the Claimant she indicated that she did not realise that this was a problem and she thought that it was legitimate for Ms Brown to have helped. In this context, Ms Douglas referred to what she had been told by others. She had no direct evidence of the concern. The Claimant indicated a reluctance to get involved in what she described as: “he said/she said”.[54]Ms Douglas referred to the fact that the Respondent was currently interviewing and that they needed people who worked as a team. The question of working as a team had come up also earlier in this conversation. The conversation reverted to a discussion about the invoicing and the need to complete it or at least reduce it to single figures by the following week.[55]During the conversation, the Claimant referred to the difficulty of getting accurate information in support of the invoices previously dealt with by her colleague Wendy Rowley. This was relevant in relation to the subsequent incident which occurred between the Claimant and Ms Rowley in which it was said by the Respondent that the Claimant had harassed Ms Rowley. The only witness who was directly involved in that incident or witnessed it who gave evidence to this Tribunal was the Claimant. The Respondent had no evidence from Ms Rowley about the episode, nor did the member of management (Mr Kelly) who was said to have witnessed this make a written record contemporaneously or subsequently. Nor did he give evidence to the Tribunal about what was alleged to have occurred.[56]In all the circumstances, the Tribunal accepted the Claimant’s account of the incident, namely that she had merely been trying to get information from Ms Rowley in order to render the correct invoices. Ms Rowley had been resistant but the Claimant had had to insist that the information she required was produced. This was consistent with the contemporaneous evidence about the Claimant being under some pressure to clear the backlog of invoices. This exchange was overheard by someone who reported the matter to another member of management of the Respondent and in due course Ms Douglas was given the responsibility of asking the Claimant about this. The meeting at which this was discussed took place on 26 October 2015 (pp.88-89).[57]Once again after Ms Douglas had reported to the Claimant that the managers wanted an update on the meeting of the previous Thursday, and that they were not happy, Mrs Stower questioned whether this related to invoicing. She was told that Mr Kelly had seen the Invoice and Work In Progress figures and that he was not happy. The Claimant protested that she had got down to six jobs. This appeared to be consistent with the target that she had been asked to achieve the week before.[58]It then appeared that there was some misunderstanding between the Claimant and Ms Douglas as to the exact scope of the task that she was supposed to be completing. However, when the matter was brought to her attention, the Claimant indicated a readiness to comply with Ms Douglas’ now enlarged request. During the conversation, Ms Douglas referred to having sent out an email to the Claimant on the Thursday night to which the Claimant had not responded. The Claimant indicated that she did not realise that a reply was warranted. The email referred to did not form part of the bundle.[59]Ms Douglas then again referred to Mr Kelly getting annoyed and that he wanted to make money and was not doing so. She then referred to it having been brought to her attention that the Claimant had been harassing Ms Rowley that day about a call out. She asked the Claimant to speak to her (Ms Douglas) in future. The Claimant explained that she had asked her colleague as she did not want to be criticised in relation to not having that information. Ms Rowley had then apparently got annoyed. The reference to call out was about an invoice for a past call out. It therefore appeared to the Tribunal that the Claimant was simply seeking to carry out her duties as requested by the Respondent.[60]The matter was not pursued by Ms Douglas. It did not appear that she had any more or direct or specific information about the circumstances of the alleged harassment than she put to the Claimant.[61]Among other matters which were raised, Ms Douglas referred to concerns from management about staffing in the office after 5pm. She then continued that if the Claimant got the invoicing down to single figures by Friday, the next question would be why could she not have done this before. It appeared to the Tribunal that the Claimant’s response to this was fair, namely that she was now doing only this task. Ms Douglas then asked for reassurance that the Claimant would be able to keep up to date in the future.[62]She then moved on to say that it had been “mentioned” that the Claimant took a photograph of the Respondent’s “family tree”. This was a reference to a structure chart showing the management and hierarchy within the Respondent. No details of this allegation or its source were put to the Claimant. It was also not apparent to the Tribunal that Ms Douglas knew any more about the allegation than she put to the Claimant as set out above. The Claimant asserted her innocence of this charge and offered her phone to Ms Douglas to check. Ms Douglas did not take up the opportunity but then pursued the question about whether the Claimant was still in touch with Mr Canfer (p.89).[63]The Tribunal has referred in some detail to the notes of the conversation because it appeared to the Tribunal that the way in which matters were being dealt with by the Respondent and through them by Ms Douglas was extremely unsatisfactory. It was necessary to review these matters because the Respondent relied on this as forming the history which led to the notice of termination of the employment on 29 October.[64]As is apparent from the Tribunal’s findings, especially having regard to the Respondent’s admissions in relation to the lack of procedure in relation to 29 October, the dismissal was, in this Tribunal’s view, certainly unfair both procedurally and substantively because the way in which it was dealt with by the Respondent meant that they were not in a position to assess fairly whether the Claimant’s employment should be terminated. The Tribunal also had to consider the question of whether reductions needed to be made to the award either by reason of the operation of the principles in the case of Polkey or because of contributory conduct. Thus, it was necessary to reach a view about the conduct on the Claimant’s part that was criticised.[65]The Tribunal considered that the notes of this meeting also indicated that the Claimant was being asked to complete tasks but then was being criticised when she attempted to perform them. She was accused of harassing a colleague but there was no detail provided to her and when she gave what appeared to be a valid answer she was not told whether that explanation was satisfactory.[66]The witness statement prepared by Ms Rowley and adduced by the Claimant was the subject of some controversy. The Respondent cast doubt on its authenticity. In particular, they pointed to the date as set out above on which it purported to have been signed. It was neither proportionate nor possible for the Tribunal to have resolved this issue within a reasonable time. The Tribunal however had regard to the uncontroversial letter in which Ms Rowley notified the Respondent of her intention to retire on 31 December 2015. While she referred to this having been a decision which she had pondered for some time, she made no reference in it to the Claimant, or to her colleagues having caused or contributed to this decision.[67]The Claimant’s evidence to the Tribunal which was consistent with her account of the incident just prior to the meeting on 26 October 2015 just referred to, was that Ms Rowley found certain aspects of the job challenging. Indeed, the Tribunal noted that when Ms Thearle was also interviewed in a disciplinary context by Ms Douglas on 15 September 2015, she also referred to there being problems with Ms Rowley and that she made mistakes. She protested that the Respondent was giving Ms Rowley special treatment.[68]The note of Ms Thearle’s perception also corroborated Mr Canfer’s and the Claimant’s picture of there being difficulties in terms of a general management view about the C & L staff (p.77). It appeared that the C & L staff were aware of that negative perception.[69]There was thus evidence of alternative reasons for Ms Rowley’s supposed discontent with her job. There was no adequate reason on the evidence to consider that the Claimant was the cause of any dissatisfaction on Ms Rowley’s part.[70]In relation to responsibility for invoicing and the reorganisation of duties, there was evidence of an email dated 24 September 2015 (p.82) from Ms Douglas in which she informed everyone about the change to responsibilities and arrangements in the office.[71]It was also relevant in relation to the allegation of the Claimant harassing Wendy Rowley that there was no contemporaneous or subsequent evidence from Wendy Rowley describing any harassment. The Tribunal concluded that the exchange between the Claimant and Ms Rowley had been overheard in part and then misconstrued.[72]Nothing further was discussed with the Claimant about having photographed the family tree (organisation chart) other than Ms Douglas’s comments referred to above in the 26 October 2015 meeting. No basis for the suspicion was put to the Claimant contemporaneously or indeed in the Tribunal hearing. In the Tribunal hearing, there was some difficulty on the Respondent’s part in describing what the issue was about this. Indeed, it was interesting that Ms Douglas who questioned the Claimant about this in the meeting in October 2015 was not able to explain what was wrong with what the Claimant had done. As stated above Ms Douglas declined to inspect the Claimant’s mobile phone at the time.[73]At the end of the meeting on 26 October Ms Douglas told the Claimant that the result of the meeting would be a formal written warning on her records. The reason for the warning was unclear and indeed the Claimant had not been given proper notice that this was to be a disciplinary meeting.[74]The meeting with the Claimant which took place at 3pm on 26 October 2015 had to be understood in the context of the management meeting which took place earlier that day at 9.30am and which was attended by Mr Kelly, Mr Abel, Mr Gray and Ms Douglas. Notes of that meeting were made (pp87A – 87C).[75]As part of her report as Office Manager Ms Douglas told her colleagues that she had spoken with the Claimant in the presence of Ms Hardy the previous Thursday and that another warning had been issued. At the Tribunal hearing, it was not suggested by the Respondent that a warning had indeed been issued at or following the meeting which had taken place with the Claimant on 23 October 2015 (pp.86-87). This report was therefore incorrect.[76]The Tribunal considered these minutes indicated again that there was a considerable lack of clarity and/or understanding on the part of the Respondent’s managers as to normal management processes and disciplinary procedures. The notes recorded that Ms Douglas continued that she had told the Claimant that she needed to perform, that she was not doing her job, and that she should not involve and try to “dump on” others. It was noted that minutes of the discussion with the Claimant had been made. However, as already stated, the minutes of the previous discussion between the Claimant and Ms Douglas did not confirm this report.[77]Finally, Ms Douglas was minuted as saying that the Claimant had been warned that this was her last chance and that there would be no more warnings. As set out above in fact the disciplinary warning was given at the meeting which occurred later on 26 October 2015. There was no warning given at the meeting which took place on 23 October and indeed it was common ground during the Tribunal hearing that the note of the meeting on 23 October was headed “Disciplinary” in error (p.86).[78]Further, Mr Abel was noted as having made reference to his observations about the Claimant’s apparent lack of work the previous week, and saying that there should be “NO excuses this week. NP has been warned. Single digit figures by Friday 30th or contract termination”. This background informed in part, his perceptions and actions on 29 October.[79]It further appeared to the Tribunal that the meeting that took place later that day between Ms Douglas and the Claimant was an attempt on Ms Douglas’ part to put this management approach into effect.[80]Further still, in the meeting in the morning of 26 October 2015, Mr Abel was noted as having reported back to his colleagues about the recruitment process, among other things. The recruitment process was being undertaken ostensibly to find a replacement for Ms Rowley. Her notice of termination had been handed in on 9 October. Advertisements had been placed by 13 October 2015. However, the Respondent had placed advertisements for three positions, one of which bore a strong resemblance to the role which the Claimant was performing. She saw it and wrote to Mr Abel (p.85A) on 15 October 2015 to ask why the Respondent was advertising that three positions were available. Mr Abel’s prompt response was to the effect that the replacement for Ms Rowley “may mean we have to change things around, so we are looking at all three options as the replacement”. The Claimant appeared to accept his explanation in her response. She explained in turn that she had read the advertisements as meaning that the Respondent was recruiting to three positions.[81]That background was also relevant when considering the notes of Mr Abel’s contributions when he was reporting to his colleagues on 26 October 2015 at the 9.30am management meeting (p.87B). He indicated that he would be making an offer to someone called Holly to replace Ms Rowley and that Holly was on one week’s notice. He then continued that another interviewee, Rachel, had a second interview the following day and that if all was agreed they would hire Rachel to replace the Claimant. They indicated that the prospective new recruit Rachel was on a month’s notice.[82]The Tribunal found that Mr Abel had no valid explanation for this entry. The Claimant had not indicated an intention to leave the Respondent. There was no process underway by which her performance was being fairly or properly monitored, nor had she committed any act of misconduct which would jeopardise her employment. She had certainly not been given notice of termination of her employment at this point. It was therefore completely inappropriate for the Respondent to be in the process of hiring someone to replace her. At most at that stage, Mr Abel had been incorrectly told that the Claimant had been given a warning.[83]The Respondent’s position in relation to why the three posts were advertised remained the same at the hearing as had been given to the Claimant.[84]The Tribunal also considered that the management meetings gave a distinct picture of the disciplinary action being predetermined in relation to the Claimant on each of the occasions. The outcomes had been identified even before the meetings had taken place (apart from in relation to the dismissal) and it was consistent with the Tribunal’s finding that the Respondent had not really put any matters of substance clearly to the Claimant and had not taken on board any responses that she made before finding that warnings were appropriate.[85]The first management meeting which took place during the time that Ms Douglas was Office Manager was noted as having been on 14 September 2015 (pp.72-73).[86]The Claimant complained that there were no minutes of the meetings between Ms Douglas and Mr Abel during the first week. The Tribunal did not consider that on the balance of probabilities it was appropriate to draw adverse inferences from this. Ms Douglas was in a loose sense being inducted in that week and the Tribunal would have expected there to have been quite a considerable number of discussions with her in order to put her in the position to take up the reins of her new post.[87]In addition, the Tribunal considered that such minutes as had been disclosed (and were made) sufficiently established on the balance of probabilities the argument that the Claimant wished to make in relation to predetermination of outcome in respect of the disciplinary action of the verbal warning and then the written warning on 26 October 2015.[88]The Tribunal has already quoted some of the points being made by Ms Douglas in the meeting of 14 September 2015 (p.72).[89]During the management meeting of 14 September 2015, the managers discussed the Office Manager’s report. Ms Douglas gave examples of incidents which she considered were illustrative of the Claimant and Ms Thearle deliberately making life difficult for her. The first was in relation to contacting IT. This criticism is only comprehensible (although not substantiated) if one accepts the Claimant’s case that she was the most familiar with the IT systems that were being used and which had been introduced shortly before.[90]In her witness statement Ms Douglas indicated that the training that she was given on the IT systems was very basic and not very helpful. She criticised the Claimant for being defensive when she asked other members of the team for some insight on how they ran things day-to-day. She also indicated that the Claimant told her that she (Ms Douglas) had done some entries on the system “all wrong”. She then described contacting the in-house system support centre on Friday of her first week and that they ran her through the system and how to run reports etc. As a result of this, she believed that the Claimant’s criticism of her running of the report was not justified and that she had indeed done the reports correctly and also the support centre showed her how to do the invoicing. It was as a result of this that she believed that she had discovered that the Respondent was “months behind” in relation to invoicing which included a lot of air conditioning invoicing.[91]By the time of the Tribunal hearing it was accepted by the Respondent that this was not actually the correct position. Although there was some backlog, only some of it was the responsibility of the department the Claimant was in; and within that, only some of it was the Claimant’s responsibility. The Tribunal also took into account that all the members of staff were working on a new system.[92]What was missing however from Ms Douglas’ account of being obstructed by the Claimant was any discussion with the Claimant subsequently to try to clarify matters. It appeared to the Tribunal that it was quite possible that there had been misunderstandings in communication especially as Ms Douglas was unfamiliar with the system. The Tribunal considered it was also highly material that the Friday of the first week that Ms Douglas described was a day on which the Claimant was absent and on the previous Tuesday, Wednesday and Thursday although the Claimant was present it was agreed that she and Ms Douglas had had very little to do with each other because Ms Douglas was busy acquainting herself with and being inducted into her new position.[93]Further, in relation to the criticism about the Claimant contacting IT, it was apparent that the Claimant had no idea either at the time or subsequently, what Ms Douglas had taken umbrage about. In her witness statement, she addressed the possibility that she was being criticised for contacting IT support without telling Ms Douglas. Whatever the criticism was in this respect, it was apparent that Ms Douglas had not raised this issue with the Claimant at any point during the employment.[94]Another reason for Mrs Stower (the Claimant) being the most familiar with the system was that apparently, she had been the only person sent on the training course about it by Mr Canfer.[95]Throughout the case there was an insinuation that the Claimant and Mr Canfer were not just good working colleagues but “good friends” with the implication being that they were friends outside of work. The Tribunal considered that even if they were, there was nothing about that that should have threatened or undermined the Claimant’s employment. However, the Tribunal accepted the evidence of both the Claimant and as set out in Mr Canfer’s statement that their relationship was purely professional. There was no evidence to substantiate the insinuation. The Tribunal considered that it was very likely that Mr Canfer being more experienced and potentially more confident in his role than Ms Douglas was, had managed the Claimant in such a way as to exploit attributes which he considered to be positive, but which were seen as negative by other managers. This was a perfectly credible explanation for the better relationship between himself and the Claimant at work than was the case between the Claimant (and others) and Ms Douglas.[96]It was also clear from the account of Ms Thearle’s reaction when she was brought in for a disciplinary discussion at the same time as the Claimant was on 15 September which led to verbal warnings, that she felt that her efforts on behalf of the Respondent were being misconstrued and that from then onwards she would “not say anything just do as she was told” and not go out of her way for management (p.77A).[97]At the management meeting on 14 September, the next example of the Claimant making life difficult for Ms Douglas was a reference to the “Jeans for Genes Day”. This was a reference to a charity event which the Claimant had organised the previous year with the permission of Mr Kelly the CEO. Against that background the Claimant approached Mr Kelly in September 2015 and asked if the Respondent would support the charity again and Mr Kelly declined. The Claimant subsequently learned from Ms Douglas that the view was that the Claimant should have spoken to Ms Douglas first before asking Mr Kelly. The Tribunal considered that any reasonable employer would have seen the Claimant’s actions as an indication of the Claimant using her initiative, as opposed to being an example of an employee trying to undermine her new manager.[98]The situation was compounded by the fact that this matter was not raised with the Claimant at the time. It appeared to the Tribunal that at the very most Ms Douglas could simply have raised this matter with the Claimant in a positive way and explained to the Claimant that she wished such enquiries to come through her in future.[99]In assessing fairness under section 98(4) of the 1996 Act, the Tribunal also had regard to the size of the Respondent. The Respondent employed only 16 members of staff (p.20). A strict chain of command approach was somewhat surprising in that situation.[100]The next example of misconduct relied upon by the Respondent was of the Claimant not passing on messages from Mr Abel and from an engineer called Dean Currie. There was similarly no dispute about the general factual background of the issues of not passing on the messages.[101]Mr Abel had called the office (the Claimant believed this was from the nearby public house where he was meeting with Paul Jackson). He had asked for the phone calls from Mark Harris’ company mobile phone to be directed to Mr Jackson. Mr Harris had just resigned from the company and had left his phone on his desk. The criticism of the Claimant was that Mr Abel had asked for this task to be carried out by Ms Douglas, and that the Claimant had done the task herself. The Claimant used to manage the company mobile phones but earlier that day she had passed them over to Ms Douglas. At the time of the telephone call from Mr Abel, Ms Douglas was in a meeting and it was nearly the end of the day so Mrs Stower decided to handle the request herself. She then rang Mr Abel and Mr Jackson back and told them that she had completed the task. She did not inform Ms Douglas about the exchange or leave a note for her about this before the Claimant left later that day. She indicated that it had slipped her mind. There was no evidence that the failure to notify Ms Douglas of what she had done that evening caused any difficulty to her or to the Respondent.[102]Once again, the Tribunal considered that this was a simple administrative task which the Claimant was clearly capable of carrying out and that many an employer would have considered that this was an example of an experienced member of staff using their initiative appropriately in the circumstances.[103]The matter was noted as having been raised with the Claimant at the disciplinary meeting which took place on 15 September 2015, along with the issue relating to Dean Currie.[104]The final example given by Ms Douglas of having her life made deliberately difficult by the Claimant was about not passing on messages from Dean Currie. This was another instance of the Claimant carrying out a task which she had previously had responsibility for and as far as the Tribunal could see on the date that it occurred she still had responsibility for logging on absences in relation to engineers. It appeared that she had forgotten to notify Ms Douglas so she could log this on to the human resources record online but that she had made a note of the engineer leaving early on the service planner where jobs for the engineers were logged. This was one of the matters which then featured in the round robin email which Ms Douglas subsequently sent on 24 September 2015. She made it clear that other than in relation to supervisors, sickness should be reported to her. She confirmed that the members of the team would still be organising the engineers’ monthly planner (p.82).[105]The Claimant’s case was that she had spoken to Ms Douglas about this prior to the management meeting on 14 September and that she had apologised for not informing Ms Douglas about this and that they had agreed to move on.[106]The minutes of the 15 September meeting between the Claimant and Ms Douglas confirm (at p.75) that this had been discussed and that Ms Douglas had “let [the incidents relating to both Mr Harris’ phone and Dean Currie] go” and that they needed to start working together. It was clear to the Tribunal that the verbal warning letter on 17 September which followed the meeting did not then accurately reflect this outcome at least. Part of the content is set out below.[107]In a different context, it was noted as part of Ms Douglas’ report that the Claimant and Ms Thearle were not happy with the idea of a “bible”. The reference to a bible was to a document setting out the procedures to be followed. Here also, there was a dearth of evidence suggesting that this was actually discussed with the Claimant at the time. Her case to the Tribunal was that she was perfectly happy with such an approach.[108]The Claimant’s case, which appeared credible, was that it was not she who was unhappy about this but Ms Rowley and Ms Thearle. She indicated that she was perfectly happy with a record of procedures and that she had already written detailed job steps of her role at the time for the new junior member of staff Ryan Emery as Mr Canfer had just the left the company and she was going on holiday. This evidence was not contradicted by the Respondent.[109]There was no dispute that when the Claimant returned to work on Monday 14 September 2015, her desk had been moved and that it now faced a wall. This was a matter which was discussed in the meeting with Ms Douglas on 15 September 2015 and the minutes record that Ms Douglas apologised and understood Mrs Stower’s perspective on this.[110]The minutes of the management meeting of 14 September noted that Ms Douglas needed to make contact with engineers and talk to her team and discuss issues and job roles. Despite that implicit acknowledgment by the management team that the position in relation to job roles had not been made clear up to that point, it was still decided that Ms Douglas would issue verbal warnings the following week.[111]The Tribunal considered that this was consistent with and supported the finding that the outcome of the meeting the following day with Claimant was predetermined and that Ms Douglas did not actually take on board the points made by the Claimant.[112]In particular, at the meeting on 15 September 2015 when the Claimant was challenged about having a bad attitude towards work and towards Ms Douglas, the Claimant indicated that she did not understand what this perception was based on and that she believed that she came into work and “put her head down” and got on with work. She asked if the perception about her related to the lunch chart.[113]This was another instance of the Respondent not making it clear to the Claimant at the time what their criticism of her was. Indeed, it seemed to the Tribunal that the issue of the lunch chart illustrated yet again a positive aspect of the Claimant’s approach to her work. Ms Douglas had indicated to her team that she did not want all the lunch breaks to be taken together. The Claimant had therefore volunteered to prepare a chart allocating lunch times. The Tribunal could see absolutely no reason to criticise her for that. It was obvious however that this was not appreciated by her manager.[114]There was no dispute that taking of lunches together was something that Ms Douglas did not want to happen because she subsequently wrote an email to the Claimant and Ms Thearle on 5 October 2015 which she copied to Mr Gray, Mr Abel and Mr Kelly in which she reminded them that it was agreed that they would not have lunches together. She indicated that she considered that what they had done was disrespectful to both herself and Mr Gray as their managers (p.83).[115]The Tribunal considered that it was noteworthy that Ms Douglas had referred to an episode which had caused difficulties in relation to the taking of lunch which had occurred in August. The Claimant’s evidence was that Ms Douglas had not accurately reflected or recorded what had happened in relation to the incident. In August 2015 Ms Douglas had not yet started to work for the Respondent therefore she must have heard about the incident from someone else. The Tribunal considered that her reaction to the joint lunches if this is what had actually occurred, appeared to be somewhat extreme.[116]The issue of overlapping lunches came up again when on 17 October 2015 the Claimant asked Ms Douglas if she, Emma Thearle and Wendy Rowley (the team) could go to lunch together as it was her birthday. She asked if Ms Douglas would cover for them. Ms Douglas refused to do this. Ms Rowley said that she did not want to go to lunch and that she would cover for them so that Ms Thearle and the Claimant could go. Ms Douglas refused this request too. Mrs Stower and Ms Thearle complied with the refusal.[117]After the meeting on 15 September, Ms Douglas wrote a letter to the Claimant dated 17 September 2015 indicating that she was giving the Claimant a verbal warning (pp.78-79). Although she referred to the meeting on 15 September as a disciplinary hearing, there was no suggestion by the Respondent that any advance notice had been given to the Claimant and/or that she had been given advance notice of the disciplinary issues which the Respondent considered needed to be discussed, or any documents or written detail. These were itemised apparently for the first time in the letter confirming the verbal warning. Thus there was six bullet points as follows:-117.1 No respect for the new management regime.117.2 Disobeying management instruction.117.3 Creating a bad atmosphere in the office.117.4 Bad attitude.117.5 Making life uncomfortable for other members of staff.117.6 Poor or little communication and withholding information to and with management, other members of staff and clients.[118]In the letter Ms Douglas summarised the points which have already been cited above which were made to her by the Claimant. Without explaining her rationale for doing so, Ms Douglas noted that she had decided that a verbal warning was the appropriate sanction. This would be disregarded after six months for disciplinary purposes provided the Claimant’s conduct/performance improved to a satisfactory level.[119]She then identified in four bullet points the improvements which were required:-119.1 To work with respect and follow management instruction regardless of whether you feel this is the correct procedure or instruction.119.2 Significant improvement in attitude.119.3 Working with your colleagues in an appropriate manner.119.4 Improvement on all forms of communication whether written or verbal to management, colleagues and clients.[120]The Claimant was warned that if there were any repeat of this “misconduct”, she would be liable to further disciplinary action. She was told that she had the right to appeal and that she should write to Ms Hardy, Human Resources within seven days of receiving this letter giving the reasons for appeal.[121]A letter in a similar vein was sent to Ms Thearle, Ms Thearle having had a similar meeting. Ms Thearle was also given a verbal warning. The Tribunal considered that the summary of her points also indicates that Ms Thearle was unclear what the criticism was and that she was being demotivated by the Respondent’s actions in relation to the disciplinary charges. One of the disciplinary matters was said to be “always seem to have an opinion regarding Nikki”. In the notes of how Ms Thearle had responded to this, Ms Douglas said that Ms Thearle believed that she was not allowed to be friends with the Claimant. Ms Douglas also recorded that Ms Thearle had expressed the view that the fault lay in part with management. Once again without addressing these issues Ms Douglas issued a six-month verbal warning and gave Ms Thearle similar targets to those which had been outlined for the Claimant.[122]The Tribunal considered that it was relevant to set out some detail about Ms Thearle because to a certain extent she was a comparator in relation to the Claimant’s discrimination complaints. There was no suggestion that Ms Thearle was pregnant or anticipating being pregnant or taking maternity leave.[123]After the disciplinary meeting with the Claimant on 26 October Ms Douglas wrote a letter of the same date informing the Claimant that a written warning was the appropriate sanction and that this would be disregarded for disciplinary purposes after six months provided her conduct/performance improved to a satisfactory level.[124]Once again there had been no advance notification of this disciplinary hearing and the Claimant had certainly not been told in advance what the disciplinary charges were.[125]The Respondent accepted that they had not carried out any investigatory meetings or investigatory process at all at any stage. This applied both to the internal disciplinary and the final dismissal. The misconduct allegations were said to be: No respect for the new management regime Bad attitude Disobeying management instruction Making life uncomfortable and harassing other members of staff Unsatisfactory standard of work Failure to devote time and abilities in normal working hours.[126]The Tribunal has already referred to the Claimant’s responses to these. For the purposes of the Polkey and contributory fault findings, the Tribunal did not consider that any of these disciplinary matters taken separately or together constituted adequate grounds for a written warning in the circumstances. There was no adequate investigation and the process did not comply with the ACAS Code on Disciplinary procedures. Despite that, in the letter informing the Claimant of the sanction she was warned that if there were any repeat of this misconduct or indeed any misconduct in general during this six-month period during which the warning would not be disregarded for disciplinary purposes, the Claimant would be liable to further disciplinary action in accordance with disciplinary procedure which in this case “will result in dismissal”. The Tribunal did not consider that there was any basis for such a warning and that the most that the Respondent could have said to the Claimant was that it might result in her dismissal. It appeared to the Tribunal that the Respondent wished to move inexorably towards the termination of the employment.[127]Finally, in relation to the appeal the Claimant was indeed informed that she had a right of appeal against the decision but she was given a very abbreviated timeframe of three days to present her grounds of appeal. The disciplinary procedure which was in the employment handbook (p.110) provided for a right to appeal against disciplinary action but did not state a timeframe within which this should be done. The only reference to a timeframe was at paragraph 6, and this was to the time for notification of the outcome of the appeal which was normally five working days after the hearing.[128]The Tribunal also took into account at page 106 of the bundle under ‘Capability Procedures’, the provision that if there were concerns about performance the Respondent would try to ensure that the employee understood the level of performance expected and that the employee receive adequate training and supervision. It also provided that concerns regarding an employee’s capability would normally first be discussed in an informal manner and that the employee would be given time to improve. This was in the Tribunal’s view consistent with normal employment practice but was not followed in this case.[129]The procedure continued that if the standard of performance was still not adequate, the employee would be warned in writing that a failure to improve and to maintain the performance required could lead to dismissal. Importantly it also provided that the Respondent would also consider the possibility of a transfer to more suitable work if possible. There was no evidence that this latter course was ever considered by the Respondent prior to the dismissal.[130]The procedure further provided that if there was still no improvement after a reasonable time and transfer was not possible or if the level of performance had “a serious or substantial effect on our organisation or reputation”, the employee would be issued with a final warning that they would be dismissed unless the required standard of performance was achieved and maintained.[131]The Tribunal found that the Claimant’s conduct did not reach this threshold, and given the lack of proper investigation, the Respondent did not have reasonable grounds for believing the threshold had been reached.[132]If the letter of 26 October was intended to be a final written warning because it stated that the Claimant would be dismissed, the Tribunal considered that it was not an accurate implementation of the capability procedures at page 106 or indeed consistent with the requirements of the ACAS Code. In any event the Respondent’s procedure then went on to provide for a stage whereby if such improvement was not forthcoming after a further reasonable period, the employee would be dismissed with the appropriate notice.[133]The Respondent also had disciplinary procedures which were consistent with normal employment practices and the ACAS code (p.107). These provided for example for the entitlement for an employee to be accompanied at any disciplinary hearing. Once again because the Claimant was not given any prior notice of any of the meetings this was not complied with by the Respondent.[134]The Respondent also totally failed, at every stage of disciplinary action, as their procedure and normal employment practice required, to carry out “a careful investigation of the facts and to give the employee the opportunity to present their side of the case”.[135]The Tribunal considered that given the absence of any timeframe in the Respondent’s own procedures, their attitude to the Claimant’s appeal was even more troubling. The fact that the Respondent’s procedure provided that they retained the discretion in respect of the disciplinary procedures to be followed to take account of the employee’s length of service (p106) and to vary the procedures accordingly did not, in the Tribunal’s view, give them the entitlement in law to follow a procedure which was patently unfair. In any event, it was not argued by the Respondent that this was a valid course open to them and the Claimant was not in any event an employee with short service in respect of whom the Respondent retained the discretion to vary the disciplinary procedure.[136]The statement of terms and conditions shed no further light on this (p.47, para 15).[137]There was a further management meeting on 21 September 2015 and notes of the discussion were in the hearing bundle (pp134 – 136). Ms Douglas reported that since the “fall out” of the previous week warnings were issued, and that this had caused more problems but that as of Friday of the past week “all seems to be better”. She reported that the mood and attitude of the Claimant and Ms Thearle was now okay and that although there were still issues with workload etc, the atmosphere was good. The Tribunal cited this evidence because it undermined the Respondent’s case that the Claimant failed to heed warnings. The Tribunal considered that the Claimant was highly motivated to retain her job and therefore did not present an appeal against the verbal warning and was prepared to take the criticisms made on the chin albeit they had not been explained clearly to her, and she did not agree that they were valid.[138]Despite that generally positive report to the managers, Ms Douglas also indicated that she believed that the Claimant and Ms Thearle were still not doing what needed to be done, for example, on contracts lists and little details which needed improving. She continued that things were being hidden or kept from her and she did not know why.[139]Once again, the Tribunal saw no evidence whatsoever that Ms Douglas broached these issues with the Claimant and Ms Thearle as would have been appropriate in a normal manager to employee discussion. Ms Douglas appeared to have drawn very negative conclusions about their conduct without having examined any explanations or indeed shared her concerns with them.[140]It was also clear that she was reporting back difficulties with the “girls”. There were three female members of staff in the team that she managed (p.135). This indicated that her perceived issues were not solely with the Claimant.[141]In his report to the managers, Mr Abel indicated that they needed back up and support from the computer company and that there was “too much reliance on” the Claimant. He also reported back that the Claimant and Ms Thearle had apologised for the previous week’s behaviour and that they hoped to move on (p.135). The issue of invoicing and jobs being signed off was still said to be very poor and that this needed urgent improvement.[142]As described above, this was a responsibility which was given solely to the Claimant in due course and indeed the minutes of the next meeting on 28 September 2015 noted that when Ms Douglas gave an update she reported that invoicing was much better and that there were fewer than a dozen outstanding (p.138).[143]There was then a discussion about a change of desks which was to take effect on Wednesday 7 October. This was a further move, following the one which had taken place on 14 September.[144]A further relevant note from the management meeting minutes of 12 October 2015 (pp139 -140) was that after Ms Rowley gave notice of her retirement dated 9 October, it was noted in the management meeting minutes that she had resigned and she would not change her mind. Mr Kelly’s suggestion at that meeting was that the Respondent should announce that she was retiring not leaving. The Tribunal considered that this was an indication that the managers at that meeting did not understand or appreciate that in fact Ms Rowley had stated (p83A) she was retiring not resigning.[145]There was also a note in those minutes about another member staff Geoff Bowles who was due to leave at the end of February 2016; and yet another member of staff Nikki Broomfield who was to have her contract terminated. Once again in relation to outstanding invoices the numbers were in single figures.[146]Mr Abel repeated his concerns that there was too much reliance on the Claimant and that they needed back up and support and training from the computer company.[147]At the same meeting Mr Kelly the CEO questioned whether Ms Hardy could cover the Claimant’s work and learn the job and Mr Abel assured him that this was possible and that he would speak to Ms Hardy (p.140).[148]A further management meeting took place on 26 October 2015. Mr Kelly, Mr Abel, Mr Gray and Ms Douglas attended it. Notes of the meeting were taken by Mr Abel (pp87A – 87C), and the matters discussed have been described above.[149]At the next management meeting on 2 November 2015, Mr Abel reported that the Claimant had been dismissed the previous Thursday for misconduct with one month’s pay. He conveyed his understanding that she had the right to appeal against his decision but needed to do so within seven days in writing to Mr Kelly explaining the reasons. He took the notes of this meeting (pp141 – 143). Only Mr Abel, Mr Gray and Ms Douglas were in attendance. Although the meeting was called by Mr Kelly he gave his apologies. The managers appeared to be confident that based on advice from their employment law advisors there should not be a problem if the Claimant appealed because there was “plenty of evidence going back at least six months”. Mr Abel referred to the Respondent having records of many meetings which had been minuted on (sic) comments for Mr Canfer to talk to the Claimant about performance.[150]The Tribunal did not share that perception. The evidence of any criticisms of the Claimant was that which has been outlined in these reasons. It was minimal.[151]At that point also the Respondent was anticipating that the replacement for Ms Rowley would start on 2 November and have a period of handover until Ms Rowley left at the end of December. Interestingly the Respondent’s plan was that Ms Thearle not Ms Rowley would train the replacement (p.142). Ms Douglas then reported that Rachel Mellor, to whom Mr Abel had made reference in earlier meetings, had been offered the Claimant’s job the previous Friday 30 October and that she had accepted and was due to join the Respondent on 30 November.[152]In relation to invoices it was reported that there were none outstanding.[153]Even against the background of the procedurally and substantively defective disciplinary processes which preceded it, the dismissal occurred suddenly and was decided upon by Mr Abel, not Ms Douglas on 29 October 2015. The letter sent to the Claimant on Friday 30 October purporting to set out the process which led to the dismissal and the reason for it was somewhat misleading.[154]The true picture about the dismissal emerged from the Respondent’s evidence as follows: On 29 October neither Ms Douglas, Mr Kelly, Mr Gray nor Mr Abel was working from the Respondent’s premises. Mr Abel was working from home as he had child care responsibilities over the school half term. As set out above by reference to, among other things, the management meeting minutes, Mr Abel was party to the discussions about concerns about the Claimant’s performance – concerns which the Tribunal has found above to be unjustified, not least because they were not properly discussed with the Claimant or investigated. Further, the Respondent’s managers including Mr Abel were implementing a pre-determined plan to replace the Claimant because of these erroneous perceptions about the Claimant’s conduct and/or performance.[155]In the absence of the senior managers, no more junior member of staff had been left in charge. That course might have been expected in a well-ordered office.[156]The Respondent’s case (paras 29 - 34 of Mr Abel’s witness statement) was that the Claimant “..took this opportunity with no senior management in the office to cause mayhem and disruption and decided she was in charge. She took several members of staff to the pub for lunch…”. The statement continued “In the afternoon, her behaviour was reported to me as ‘uncontrollable and frightening’ by BH the HR manager. Once again, WR asked to leave early as she was getting upset with the atmosphere and attitude of NP towards her.”[157]Mr Abel then described driving in to work, leaving his young children at home, and calling the Claimant (NP) into a meeting. By now Ms Douglas had apparently returned to the office, and Mr Abel asked her to attend the meeting also. He did not seek her input into the reported events which had led to his return to the office. There were no formalities observed in the calling of the meeting, such as giving notice of the nature of the meeting or inviting the Claimant to be accompanied.[158]At the meeting the Claimant was subjected to a brief dressing down, Mr Abel told her he had had enough of her behaviour, and he terminated her employment, on his account, “with immediate effect”. He later confirmed to her before she left the premises that she would be paid one month’s notice. The Claimant understood the position to be that she had been put on gardening leave for one month and that her employment would terminate on 30 November 2015.[159]The Respondent failed to establish any proper factual justification for Mr Abel’s actions, on the balance of probabilities. Ms Hardy who Mr Abel cited as the source of the information about the Claimant being ‘uncontrollable and frightening’ did not corroborate this either in her witness statement or in her oral evidence to the Tribunal. There was also no contemporaneous record of the events of 29 October which were supposed to have led to the dismissal.[160]Ms Hardy, who had recently been given responsibility for Human Resources in the Respondent described the events of 29 October in para 13 of her witness statement. Apparently, the Claimant questioned with her the appeal process in relation to the written warning issued by Ms Douglas a few days earlier, and timings, which she explained to the Claimant. She then stated that she did not sit in the same office as C&L facilities staff, but that Ms Rowley came to her on 29 October and asked if she could leave early “because she was getting upset with the atmosphere in the office. I telephoned MA and informed him that I had let WR go early”.[161]No-one who was said to have witnessed the Claimant’s allegedly poor conduct on 29 October 2015 in the absence of the managers gave evidence.[162]The Claimant vehemently denied that she had taken colleagues to the pub, and the Respondent had no evidence to support that assertion either at the time of the decision to dismiss or at any point up to the date of termination on 30 November.[163]At the Tribunal hearing an attempt was made to persuade the Tribunal to admit evidence from Mr Abel of a recent communication with a member of staff at the pub about the events of 29 October 2015. No witness statement had been prepared addressing this evidence and no disclosure about any relevant documents about this issue had taken place. The Tribunal considered that it was inappropriate to admit the evidence as it was hearsay and unlikely to be reliable given the nature of the circumstances – it was unlikely that a member of staff at the pub would have had a clear or accurate recollection of these events so long afterwards, and it was not in dispute that the Respondent’s staff regularly used the nearby pub for their lunch breaks and meetings (eg the Harris phone issue above). Importantly also, this was not said to have been evidence which was considered by the Respondent at any time during the Claimant’s employment or in the context of any appeal.[164]The Tribunal accepted the Claimant’s case on this which was effectively uncontested on the evidence. It was also consistent with our findings above about her compliance with Ms Douglas’ instructions about not going to the pub with a colleague on her birthday, and with the evidence that she volunteered to draw up a lunch rota.[165]There was thus no direct evidence available to Mr Abel when he decided to dismiss or indeed to the Tribunal about the alleged misconduct on 29 October.[166]The statement in the letter of 30 October 2015 that “At the hearing you offered little response to these points” was in the Tribunal’s view, disingenuous. No proper hearing was held on 29 October. Mr Abel himself described the meeting in his office as very brief. He did not invite a response from the Claimant to any of the allegations subsequently relied on, and the Tribunal found that the Claimant was in a state of shock. Despite that, the Tribunal accepted that the Claimant asked if she could retrieve personal data from her work computer before she left, and she offered to be supervised by Ms Douglas while she did this.[167]In the event, despite the Claimant’s attempts to submit an appeal, the Respondent would not entertain one. They thus deprived themselves of the opportunity to revisit the dismissal decision in the cold light of day. Summary of Conclusions[168]In short, having made findings of fact, the Tribunal’s task was to decide what was the reason for the dismissal and the various detriments complained of.[169]The Claimant alleged breaches of section 18(4) of the 2010 Act – direct discrimination because of the Claimant seeking to exercise the right to ordinary or additional maternity leave – in the respect of the detriments and the decision to dismiss her as set out in paragraph 3(a) to (l) of the List of Issues. For the reasons set out above in relation to causation of the Respondent’s acts, the Tribunal did not consider that the Claimant had established facts from which we could conclude that the Claimant had been subjected to this type of discrimination such that the burden of disproving it passed to the Respondent. The dismissal of Mr Canfer in mid-August 2015, and the recruitment of Ms Douglas at about that time undermined the undermined the likelihood of section 18 discrimination. Further, the similar treatment of the Claimant’s co-worker, Ms Thearle who was not on maternity leave or anticipating being on maternity leave, also pointed to other non-discriminatory reasons for the treatment complained of. Further the background matters relied upon by the Claimant which related to the manner in which the litigation was conducted by the Respondent did not in this Tribunal’s view tend to support a likelihood of discriminatory treatment.[170]The Claimant pointed to a failure to comply with the EHRC Code of Practice, and indeed with the ACA Code of Practice on disciplinary processes. The Tribunal accepted, as Ms Whitehouse submitted, that Ms Douglas presented in evidence “as wholly ill-equipped and inexperienced..” to have been tasked with disciplining the Claimant. There was clearly no culture within the Respondent of taking the necessary time to investigate perceived employee weaknesses with an open mind, and then to take appropriate and proportionate action. Mr Abel’s actions in dismissing the Claimant exemplified this. The Tribunal did not consider that the admitted breaches of the Code – no equal opportunities training or policy or knowledge of these – were sufficient to get the Claimant over the initial burden of proof in all the circumstances in relation to this section of the 2010 Act.[171]The Claimant also relied on the evidence about the Respondent advertising for a replacement for the Claimant and others as early as 13 October 2015; and the steps to replace the Claimant with Rachel before the Claimant had even been given a written warning. The Tribunal has criticised the Respondent’s actions as an employer in this and other respects. There was no evidence before the Tribunal about the new recruit Rachel’s age or her circumstances in relation to pregnancy. There was insufficient basis for concluding even provisionally that there was any correlation between the Respondent’s actions and the Claimant’s hoped-for maternity leave.[172]In all the circumstances, those complaints were not well founded and were dismissed.[173]The Claimant next alleged direct sex discrimination under section 13(1) of the 2010 Act in relation to the detriments set out at paragraph 7(a) to (g) of the List of Issues. The Claimant relied on her submissions in relation to the section 18(4) complaints.[174]There was some overlap between the complaint at paragraph 7(a) and the complaint in paragraph 3(a) under section 18.[175]The Tribunal considered that by reason of the effect of section 18(7) of the 2010 Act, this complaint was probably only a complaint under section 18(4), but in any event could at most be considered in the alternative. The section 13 complaints were considered by reference to the protected characteristic of the Claimant’s sex, not her pregnancy or prospective maternity leave.[176]The Tribunal had made findings of fact above which addressed the overarching issue here also as to causation. There was no evidence of the treatment of an actual comparator, nor was a hypothetical comparator defined.[177]As to the background, the manager with whom the Claimant had the difficulty was female. This did not exclude the possibility of sex discrimination, but was relevant. Further, there was background evidence of Ms Douglas and indeed the Respondent’s managers in general taking different approaches to different female members of staff in relation to criticisms of their performance. The Tribunal also had in mind that there was really no background evidence about less favourable treatment relating to sex.[178]In relation to the section 13(1) complaints also, the Tribunal considered that the Claimant had not established facts from which the Tribunal could conclude that there had been direct sex discrimination. Even if the Tribunal was wrong on that issue, the Tribunal’s findings above as to the reason why the Claimant was treated as she was, were unrelated to grounds of sex.[179]The next set of complaints was brought under section 18(2)(a) of the 2010 Act, alleging direct discrimination because of pregnancy. The Respondent can only be liable under this section for acts or omissions done during the woman’s protected period as defined in section 18(6). The starting date of the protected period was taken in this case as 22 October 2015.[180]The Claimant complained about the dismissal on 29 October 2015 and the detriments set out in paragraph 11(b) to (d) in relation to the failures in the procedure from 30 October and the denial of the appeal.[181]In her closing submissions, Ms Whitehouse again relied on her submissions in respect of the maternity leave claim in support of this complaint, and also on the submissions in respect of the unfair dismissal.[182]As it turned out, these failings by the Respondent all apparently occurred during the statutory protected period. However, it was not in dispute that the Claimant did not receive confirmation of her pregnancy until early December, after the effective date of termination on 30 November 2015, and that a home pregnancy test shortly before that (on an unspecified date) had indicated that she may be pregnant.[183]In the circumstances, there were no good grounds for concluding that the treatment complained about was due to the Claimant’s pregnancy. The managers had scant appreciation of good employment practice, and there was no adequate basis for concluding that the possibility of the Claimant’s pregnancy was the reason for the treatment the Claimant received.[184]The section 18(2)(a) complaint was therefore not well founded and was dismissed.[185]Having disposed of the discrimination complaints, the final complaint to be determined was of unfair dismissal under section 98(4) of the 1996 Act.[186]The first issue was the determination of the reason for the dismissal, the burden resting on the Respondent, and whether it was a potentially fair reason for dismissal under section 98 of the 1996 Act?[187]The Tribunal was satisfied that the reason for the dismissal was that the Respondent believed that the Claimant was undermining and failing to work constructively with her new manager, Ms Douglas, and acting outside of her authority, and then on 29 October committed the acts of misconduct alleged. These matters fall within the category of conduct and are thus a potentially fair reason for dismissal.[188]The next question was whether the dismissal for that reason was fair under section 98(4), having regard also to the now trite authority of BHS v Burchell [1978] IRLR 379. For the avoidance of doubt, the Tribunal noted that the burden of proof as to fairness was neutral, the wording in section 98(4) having changed since the judgment in the Burchell case. Reference has already been made to the ACAS Code in this context.[189]The Tribunal concluded that the Respondent acted unfairly in finding that the Claimant had been guilty of the acts of misconduct alleged between early September and 29 October 2015. The inadequate investigations at all stages meant that the Respondent acted totally unreasonably in concluding that the Claimant had done what was alleged. Indeed in many instances, both Ms Douglas in the run up to the dismissal, and Mr Abel in deciding to dismiss the Claimant, relied on unsubstantiated vague reports of misconduct.[190]The Respondent admitted to some of the procedural breaches, as set out in Ms Hall’s closing submissions. The Tribunal found that the procedural breaches helpfully set out in paragraph 65(b) to (h) and (j) to (o) of the Claimant’s main submission were established. This dismissal was overwhelmingly procedurally unfair.[191]In the circumstances, the Tribunal had little hesitation in finding substantive unfairness also due to the lack of investigation and of evidence to substantiate the allegations; and due to the Claimant’s credible responses to the disciplinary background matters and to the matters she was alleged to have done on 29 October.[192]In her closing submissions, Ms Hall sought to rely on matters which had not been adduced in evidence and were not agreed e.g. under para f on page 3 of the main submission. Such matters were disregarded for those reasons.[193]Having concluded that the decision to dismiss was unfair for the reasons relied upon by the Respondent, in circumstances where the Tribunal found also that no reasonable employer would have found that the conduct alleged had taken place as alleged, the sanction of dismissal could not be justified.[194]Further, the Respondent’s inability to adduce any or any cogent evidence of the misconduct alleged to have occurred on 29 October could not support a Polkey finding that this was merely a procedurally flawed dismissal which would have occurred in any event if fair procedures had been complied with.[195]Finally our findings as to the conduct alleged being unsubstantiated also led the Tribunal to conclude that there was no proper basis for concluding that the Claimant had caused or contributed to her dismissal under section 123 of the 1996 Act.[196]The unfair dismissal was therefore well founded and no reductions were to be made to the award of compensation or to be taken account in respect of remedy on the basis of the effect of the Polkey principles, or on the basis that there had been contributory fault under section 123 of the 1996 Act. ………………………………………………………….[1]Following the Tribunal’s judgment in this case the Claimant had been unfairly dismissed and that there were no deductions due to be made in respect of the Polkey principles or by reason of contributory fault by the Claimant. The Tribunal convened to determine remedy. There were various schedules of loss and counter scheduled that we considered in various consideration. We had the benefit of a bundle of documents which ran to some 150 pages and in addition to that half way through the morning the Claimant’s counsel produced a schedule of loss which the Tribunal marked C2 and then she also provided written closing submissions which were marked C3. In addition to that the Tribunal had the benefit of a witness statement which was signed 25 January 2018 from the Claimant which were marked C1. The schedules and counter schedules and evidence about mitigation of loss were in the bundle. We also had from the Respondent the disclosure of the part of the employment handbook which made it clear that during maternity leave employees were entitled to statutory benefits only.[2]The first issue was agreed was the question of the basic award. The parties agreed that in the sum of £1,916 and that reflects a multiplier of 4 full years by 1 week’s gross pay which is subject to statutory cap is a figure of £479.[3]We next turn to consider the compensatory award and the central dispute here was about whether the Claimant had failed to mitigate her losses. This was a matter which was addressed in some detailed in the written submissions of counsel for the Claimant and we accepted the statement of the relevant law as set out in those written submissions. We then considered the evidence which we had heard about this. The evidence was that the Claimant had either been claiming job seekers allowance or statutory maternity pay for most of the time that we were concerned with an in order to claim that successfully she needed to establish to the satisfaction of the benefits agency that she was making reasonable efforts to find alternative work. We had the documents about some of that period of time which confirmed her efforts during a period in 2016. After the judgment was sent out a Telephone Preliminary Hearing took place in November 2017 and Orders were made for the preparation for this remedy hearing and this included for the provision of disclosure about remedy or loss from the Claimant there were no further requests for orders from the parties. We therefore had to decide the issue of failure to mitigate on the balance of probabilities based on the law which I have referred to already and on the evidence both oral and documentary which was available to us. The Claimant gave evidence as I have said and relied on her witness statement.[4]We accepted the Claimant’s evidence as to her efforts to find other work and that she was unable to secure work beyond the post which she described in her schedule of loss in her oral evidence and these were three part-time or adhoc positions including one which she is currently working on.[5]Our findings on liability about the Claimant’s approach to work were consistent with her evidence that she valued her career and would have wanted to return to work by three months after the delivery of the baby. This was reinforce by the fact which we also found that her mother was available for most of the period or something at the time of return or planned return to work to have provided full-time childcare. The Claimant also had the benefit of some back up from her in laws for up to two days a week. The Respondent produced details of alternative jobs which they submitted the Claimant could have taken. The Claimant accepted in her evidence readily that these were the sorts of jobs generally speaking that she had applied for but the evidence from the Respondent did not however constitute proof that the Claimant had acted unreasonably and thereby failed to mitigate her loss. We simply had not adequate evidence of that.[6]The Claimant’s mother was diagnosed as having breast cancer in July 2017. In her oral evidence the Claimant frankly accepted that had she continued working for the Respondent that this event was likely to have had an effect on her working although it was difficult to be precise what that would have been she would of course had wanted to support her mother as well during this time. The evidence we heard was that nursery fees was £70 per day. The Claimant’s mother-in-law and father-in-law had to be present on occasions when the Claimant’s daughter was being baby sat, the Claimant’s father-in-law work three days a week therefore he only had two days a week on which he could baby sit. We consider that it was likely in those circumstances given that the Claimant would have had to reach firm arrangements that she would have only asked for a commitment from them for one day a week and we have assumed that when her in-laws looked after her daughter that they would also not have charged to anything as was the case in relation to her mother and that she would then have placed her daughter in nursery for three days a week which would have incurred a costs of £210. That would have allowed the Claimant to work four days a week from July 2017. In the light of those findings we reached the following calculations.[7]The Tribunal called a short break in the middle of giving judgment and the Claimant produced the document which had been shown to the Respondent which was a payslip in relation to her work with First Data there was a slight difference between the figure on that document of her gross pay and the figure which had been booked in the schedule of loss that the Tribunal considered that it was in the same ?? and on the grounds of proportionality we did not adjust our figures that we used for the calculations. So I think I am saying that we thought it was likely that the Claimant would come up with an arrangement whereby she did not work for one day but worked for four on the basis of her in-laws looking after her daughter for one day and the daughter being at nursery for three days. We therefore against those findings made the following calculations.[8]We approached this in terms of analysing what the Claimant would have earned if she had stayed in the employment of the Respondent through to today’s date. The first time frame was the 33 week period from the end of the notice period the termination date through to the start of maternity leave which we have taken as 17 July on the basis that again that is fairly likely date for an expectant mother to commence her maternity leave and the baby was born on 3 August 2016. 33 weeks x net pay of £434.02 gives the sum of £14,322.66. The next timeframe covered the period of maternity leave which the Claimant we found would have taken if she carried working for the Respondent we thought that this was likely that she would have worked taken just over three months off after the birth of her baby and return to work on 8 November 2016. The period of absence then from the 18 July 2016 to 8 November 2016 is 17 weeks. For the first 6 weeks the Claimant would have been entitled to 90% of her net income which we calculated was £390.62 x 6 = £2,343.71 for the remaining 11 weeks that we found she would have taken off she was entitled to £139.58 per week or 90% of her previous salary whichever was the lower and that gives a sum of £139.8 x 11 = £1,535.38.[9]The next timeframe was the timeframe from 9 November 2017 to 13 July 2017 and we have taken that timeframe to reflect our findings above about the Claimant’s mother ill health which is of course unrelated to the employer. That is a period of 35 weeks at full-time pay of £434.02 which gives £15,190.70.[10]Finally the timeframe when we found that the Claimant had worked four days a week from 14 July to 25 January 2018 equals a period of 28 weeks at 80% of her net weekly salary = £347.22 and that totals £9,722.05. So what we found is that if the Claimant had been in employment she would have earned the sum of £43,114.50 from that sum we deducted the figures which we had been given about earnings from other employment. The first was her work for First Data between March and June 2016 which is £2,042.04. Next we deducted her income from working at the Stockbrook Manor Golf Club which was £628.16 and finally we deducted her income from her current employment which totalled £1959.98. So those deductions give a figure of £38,484.32 which we found to be the loss of earnings figure. The parties have already been advised that this award would be subject to payment by the Respondent directly to the benefits agency of the relevant state benefits which I believed to be the actual maternity benefits received and also the Claimant’s job seekers allowance but that is our award in terms of loss of earnings. The recoupment regulations will apply.[11]Then in addition to that there was no future loss of earnings claim so we then considered the award for loss of statutory employment rights which we awarded an agreed figure of £500.[12]Then the next issue which was the further issue of controversy was about the application of Acas uplift. We have set out our findings in detail and in summary the Respondent dismissed the Claimant summarily and the only engagement if I can put it that way with the Acas Code or the requirements of the Acas Code was to offer the Claimant an appeal belatedly on short notice. However, we reviewed the correspondence between the Claimant and Mr Kelly at pages 98 – 102 of the original bundle the Respondent put an arbitrary time limit on that which as we found in our judgment on liability did not reflect what their company procedure stated and when the Claimant wrote requesting a copy of the handbook the Respondent refused to supply it on the ground that it had been supplied previously the Claimant despite that wrote protesting about that but then relied on the Acas Code on 23 November 2015 and making her points but there was no response. The Respondent taken the view that the time had elapsed. We did not consider therefore that there was any area of compliance by the Respondent with the Acas Code. We were assisted as well by the authorities produced by Ms Whitehouse and so we concluded that the appropriate uplift was 25%. That is an uplift on the compensatory award not the basic award so totalling the loss of earnings figure plus £500 gives a subtotal of £38,984.32. 25% of that is £9746.08 and that gives a total of £48730.40 and of course to that has to added the basic award. [Note to self the new amended figures about remedy including the effect of the cap and the confirmation that the Claimant did not want a re-employment order and about how we treat the statutory maternity pay will be dictated after this additional text so bring it from further down the judgment][13]Both parties made application for costs which the Tribunal considered after concluding our deliberations and judgment in relation to remedy. Both parties had been directed to set out their applications and the grounds for them in writing and these documents were in the bundle. The Tribunal heard oral submissions on behalf of each of the parties as to why costs orders should be made and both applications broadly were on the basis that the other party had conducted themselves unreasonably. The Tribunal reached a decision on principle first of all. In relation to the application by the Respondent for costs against the Claimant primarily on the basis that the sex discrimination claims were unreasonably brought or vexatious the Tribunal had regard to the definition of those words under the Rule and considered that the Claimant was just over the line of not being unreasonable in bringing her sex discrimination case or allegations and the Tribunal refers to our findings and conclusions in our judgment about the sex discrimination allegations. It is fair to say that there were no applications for strike out etc as the Tribunal commented it is unusual in a discrimination case for such an application to be considered and the burden is really on the person bringing the claim to asses the merits of the claim being pursued but we feel that the Respondent has not established that it was unreasonable for the Claimant to bring the sex discrimination complaints.[14]The second application was by the Claimant against the Respondent for costs and this will be on the basis that it was unreasonable to resist the unfair dismissal complaint and the Tribunal considered that the Claimant had established that that it was indeed unreasonable of the Respondent to resist the unfair dismissal complaint and I award in relation to the Acas uplift which was at the maximum of 25% is also a reflection of the fact that the allegation was pretty much unanswerable. We also refer to the findings that we made in our judgment in which we noted that the Respondent clearly had little or no expertise in proper employment practices. There was a further point made on behalf of the Claimant that the sex discrimination allegations added nothing extra this Tribunal dealt with the hearing and we do not agree with that assessment. The case was listed for three days and we ran out of time in terms of the presentation of closing submissions and we consider that the unfair dismissal case on its own with live Polkey and contributory fault issues could and should have been concluded within two days including the Tribunal giving its judgment. We have also take into account the costs do not follow the event in the Employment Tribunal. We consider that the content in resisting that unfair dismissal was unreasonable conduct of the proceedings and it was also urged upon us that we should find unreasonable conduct by reference to discussions with a view to settling the case and approaches to Acas and responses to Acas and the manner or nature of those discussions. We rejected that contention also Employment Judge Warren made a costs order in relation to the postponement in November 2016 which arose because of disclosure which was made very late and which the Claimant had not had an opportunity to address ahead of time. That order for costs has been complied with and we did not considered that it was appropriate or legitimate for the Tribunal to revisit that issue there was no appeal against Employment Judge Warren’s order and there was no application within the time to vary that so those bases for finding that there was unreasonably conduct or that the threshold for making costs order were rejected by us so our finding is that there has been unreasonable conduct by the Respondent but that was in relation to resisting the unfair dismissal case.[15]After we announced our decision in principle in terms of the application for costs by the Claimant and the Respondent indeed we adjourned for Ms Phillips to take instructions as to any relevant circumstances in terms of the Respondent’s ability to pay an award of costs. She told the Tribunal about the number of staff employed by the Respondent and that the Respondent had an annual turnover of about £800,000 and that the last year that they returned a profit of about £20,000 but that in the three proceeding years there were losses varying degrees. The Tribunal considered that in all the circumstances consistent with our finding about the length of hearing we considered that even if the Respondent had accepted liability for the unfair dismissal it was likely because of the calculation of remedy involving areas where the Tribunal has to make a decision which are discretionary that a remedy hearing would still have been needed anyway and we have also commented during the hearing and earlier in this judgment about concerns about points being taken unnecessarily and we regret that the hearing has taken as long as it has but we considered that in all the circumstances that the costs that we award to the Claimant should reflect the fact that she had to or would have had to pursue something in the order of a two day hearing in order to succeed in the unfair dismissal claim and we have assessed that to the sum of £1600 plus VAT which comes to £1,120.[16]The Tribunal reiterated that the Employment Tribunal is not a jurisdiction in which costs are routinely ordered. There are many cases in which Claimants do not succeed in respect of any of their claims and no orders are sought or made against them for costs.[17]The Claimant’s application for costs had included a claim in respect of costs incurred earlier on in the case where a firm of solicitors among other matters had prepared effectively a letter before action. The Tribunal did not consider that it was necessary to reflect those costs which ran into some £3,000 in the order made. It was relevant that the Employment Tribunal is not a regime in which costs are usually awarded.[18]A full Tribunal was constituted to deal with these days as the parties were bringing costs application in respect of costs and it was not restricted to the determination of the unfair dismissal. JUDGMENT in respect of Remedy and Costs having been sent to the parties on 26 February 2018 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013.[1]Written reasons were requested by the Respondent by email sent on 8 March 2018. Preliminaries[2]By the Tribunal’s reserved liability judgment in this case it was decided that the Claimant had been unfairly dismissed and that there were no deductions to her compensation due to be made in respect of the Polkey principles or by reason of contributory fault by the Claimant. The Tribunal thus reconvened to determine remedy on 25 and 26 January 2018. The Tribunal refers to the Reserved Judgment and Reasons for the background. These reasons are set out only to the extent that the Tribunal considers it proportionate to do so, and only to the extent that is necessary to do so to enable the parties to understand the reasons for the judgment.[3]A full Tribunal was constituted to deal with the hearing as the parties were bringing costs application relating to the liability proceedings which included a number of discrimination allegations and was not restricted to the determination of the unfair dismissal complaint. Certificate of Correction[4]At the same time as the Respondent requested written reasons for the Judgment, a request was made for reconsideration of various matters. A number of these were arithmetic or typographical errors. Reconsideration in respect of those has been refused, but a certificate of correction and corrected Judgment accompany these Reasons. In addition, in reviewing the Respondent’s application for reconsideraton, the Tribunal noted that the wrong figure for the statutory maximum week’s pay had been applied, having regard to the date of termination of the employment on 30 November 2015. This clerical error was also corrected. None of the errors constituted an error of law.[6]In these reasons, it is convenient to set out both the figures originally announced, and the corrected figures in bold type face.
Relevant law
[7]Although there is reference where appropriate in these reasons to applicable law, there was no dispute between the parties about the applicable law. For that reason and on grounds of proportionality, these reasons do not contain an exposition of all the relevant law. Evidence adduced[8]We had the benefit of a bundle of documents which ran to some 150 pages and which included various schedules and counter schedules of loss. In addition, half-way through the morning of the first day, the Claimant’s counsel produced a schedule of loss which the Tribunal marked [C2]. She also presented written closing submissions which were marked [C3]. In addition to that the Tribunal had the benefit of a witness statement from the Claimant marked [C1] and which was signed by her on 25 January 2018. The schedules and counter schedules and evidence about mitigation of loss were in the bundle. The Respondent disclosed the part of the employment handbook which made it clear that during maternity leave, employees were entitled to statutory benefits only. Issues and Conclusions[9]The Claimant confirmed that she did not seek a re-employment order but applied for compensation.[10]The calculation of and the fact of the Claimant’s entitlement to the basic award was agreed. The basic award was in the sum of £1,916 and that reflected a multiplier of 4 full years by 1 week’s gross pay which is subject to the statutory cap. The Tribunal erroneously used the figure of £479 as the statutory maximum week’s pay when announcing the decision. The corrected statutory maximum for the effective date of dismissal on 30 November 2015 was £475 (SI 2015/226). The Claimant’s gross weekly pay was £550, above the statutory maximum week’s pay. The agreed calculation of the basic award appeared to have been in error, and the figure awarded should have been £1900.[11]We next turned to consider the compensatory award. The central dispute here was about whether the Claimant had failed to mitigate her losses. This was a matter which was addressed in some detail in the written submissions of counsel for the Claimant and we accepted the statement of the relevant law as set out in those written submissions.[12]We considered the evidence which we had heard about this. The evidence was that the Claimant had either been claiming job seekers allowance or statutory maternity pay for most of the time that we were concerned with. In order to claim those benefits successfully, she needed to establish to the satisfaction of the Benefits Agency that she was making reasonable efforts to find alternative work. We had documents which confirmed her efforts to do so during a period in 2016.[13]After the Reserved Liability Judgment was sent out, a Telephone Preliminary Hearing took place on 27 November 2017. Case Management Orders were made for the preparation for this remedy hearing and this included an Order for the provision of disclosure about remedy or loss from the Claimant. There were no further requests for orders from the parties. We therefore had to decide the issue of failure to mitigate on the balance of probabilities based on the law which I have referred to already and on the oral and documentary evidence which was available to us.[14]We accepted the Claimant’s evidence as to her efforts to find other work and that she was unable to secure work beyond the positions which she described in her schedule of loss and in her oral evidence. These were three part-time or ad hoc positions including one on which she was still engaged.[15]Our findings on liability about the Claimant’s approach to work were consistent with her evidence that she valued her career and would have wanted to return to work by three months after the delivery of the baby. This contention was reinforced by the fact, which we also found, that her mother was available to provide substantial, if not full-time, childcare cover at the time of the planned return to work. The Claimant also had the benefit of some back up from her in-laws for up to two days a week.[16]The Respondent produced details of alternative jobs which they submitted the Claimant could have taken. The Claimant readily accepted in her evidence that these were the sorts of jobs generally speaking that she had applied for but the evidence from the Respondent did not however constitute proof that the Claimant had acted unreasonably and thereby failed to mitigate her loss. We simply did not have adequate evidence of that.[17]The Claimant’s mother was diagnosed as having breast cancer in July 2017. In her oral evidence the Claimant candidly accepted that had she continued working for the Respondent, this event was likely to have had an effect on her working although it was difficult to be precise what that would have been. She would naturally have wanted to support her mother as well during this time.[18]The unchallenged evidence we heard was that nursery fees were £70 per day.[19]The Claimant’s mother-in-law and father-in-law both had to be present on occasions when the Claimant’s daughter was being looked after by them. The Claimant’s father-in-law worked three days a week therefore he only had two days a week on which he could help with babysitting.[20]We considered that it was likely in those circumstances given that the Claimant would have had to have firm childcare arrangements in place, that she would only have asked them to commit to child care on one day a week, leaving one day of rest for her father-in-law. We assumed that when her in-laws looked after the Claimant’s daughter, they would not have charged her anything. This was the position in relation to her mother. We also found that the Claimant would then have placed her daughter in nursery for three days a week which would have incurred fees of £210. That would have allowed the Claimant to work four days a week from July 2017. In the light of those findings we made the calculations set out below.[21]The Tribunal called a short break in the middle of giving judgment and the Claimant produced the document which had been shown to the Respondent which was a payslip in relation to her work with First Data. There was a slight difference between the figure representing her gross pay on that document and the figure which had been used in the schedule of loss. The Tribunal considered that the figures were substantially the same and therefore on the grounds of proportionality, and consistent with the approach in section 123(1) of the 1996 Act, we did not adjust the figures that we used for the calculations.[22]In summary therefore, we thought it was likely that the Claimant would have come up with an arrangement whereby she worked for four days out of five per week, on the basis of her in-laws looking after her daughter for one day and her daughter being at nursery for three days.[23]We approached the question of the loss of earnings in terms of analysing what the Claimant would have earned if she had stayed in the employment of the Respondent through to the date of the remedies hearing. The first time-frame was the 33-week period from the end of the notice period through to the start of maternity leave which we took as 17 July 2016 on the basis that it was a likely date for an expectant mother to commence her maternity leave, some two weeks before the baby’s due date.[24]In the event the Claimant’s baby was born on 3 August 2016. 25 33 weeks x net pay of £434.02 gives the sum of £14,322.66.[26]The next timeframe covered the period of maternity leave which, we found, the Claimant would have taken if she had carried on working for the Respondent. We considered that it was likely that she would have taken just over three months off after the birth of her baby and returned to work on 8 November 2016. The period of absence then from the 18 July 2016 to 8 November 2016 is 17 weeks (16 weeks). For the first 6 weeks the Claimant would have been entitled to 90% of her net income which we calculated was £390.62 x 6 = £2,343.71. For the remaining 11 (10) weeks that we found she would have taken off she was entitled to £139.58 per week or 90% of her previous salary whichever was the lower and that gives a sum of £139.58 x 11 = £1,535.38 (£139.58 x 10 = £1395.80). £2343.71 + £1535.38 (£1395.80). = £3879.09 (£3739.51).[27]The next timeframe was from 9 November 2016 to 13 July 2017 to reflect our findings above about the effect on the Claimant’s likely working pattern of her mother’s ill health. This was an event which was unrelated to the employer, and which would have affected the Claimant in any event. That timeframe is a period of 35 weeks at full-time pay of £434.02 = £15,190.70 (£15,120.70).[28]Finally, we considered the timeframe during which we found that the Claimant would have worked four days a week from 14 July 2017 to 25 January 2018 (the date of calculation of the remedy), which is 28 weeks. 28 weeks @ 80% of her net weekly salary of £347.22 per week = £9,722.05.[29]The grand total of the loss of earnings in those four timeframes was £14,322.66 + £3879.09 (£3739.51) + £15,190.70 (£15,120.70) + £9,722.05 = £43114.50 (£42904.92).[30]Thus, if the Claimant had continued in the Respondent’s employment, she would have earned or received the sum of £43114.50 (£42904.92). From that sum we deducted the figures which we had been given about earnings from other employment and the Statutory Maternity Pay received. The first was her work for First Data between March and June 2016 which was £2,042.04. Next, we deducted her income from working at the Stockbrook Manor Golf Club which was £628.16. We also deducted the Statutory Maternity Pay which the Claimant had received in the sum of £2372.86. Finally, we deducted her income from her current employment which totalled £1959.98. £43114.50 (£42904.92) – £7003.02 (£7003.04) (£2042.04 + £628.16 + £2372.86 + £1959.98) = £36111.46 (£35901.88).[31]So those deductions give a figure of £36111.46 (£35901.88) which we found to be the loss of earnings figure.[32]The parties were advised that this award would be subject to payment by the Respondent directly to the Benefits Agency of the relevant state benefits. The Employment Protection (Recoupment of Benefits) Regulations 1996 (SI 1996/2349) (“The Recoupment Regulations”) apply to this award.[33]There was no future loss of earnings claim. We then considered the award for loss of statutory employment rights in respect of which we awarded an agreed figure of £500.[34]The next issue, which was the subject of further controversy, concerned the application of an ‘ACAS uplift’. Under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, the Tribunal may either increase or reduce the award by up to a maximum of 25% to reflect an unreasonable failure by the employer or employee to comply with the ACAS disciplinary code. In her Schedule of Loss dated December 2017, the Claimant sought an increase of 25%.[35]The detailed background findings in our Liability Judgment are relevant to this issue. In short, the Respondent dismissed the Claimant summarily and the only engagement by the Respondent in that process with the requirements of the ACAS Code was to offer the Claimant an appeal, belatedly and on short notice.[36]We reviewed the correspondence between the Claimant and Mr Kelly about an appeal (pp 98 – 102 of the liability bundle). We found that the Respondent put an arbitrary time limit on the time for appealing which, as we found in our judgment on liability, did not reflect what their company procedure stated. When the Claimant wrote requesting a copy of the handbook, the Respondent refused to supply it on the ground that it had been supplied previously. Despite that response, the Claimant wrote protesting about the Respondent’s decision. There was no response.[37]The Respondent stuck to their position, erroneously we found, that the time for lodging an appeal had expired. We did not consider therefore that there was in the event any area of the ACAS Code with which the Respondent complied.[38]We were also assisted by the authorities produced by Ms Whitehouse on this issue.[39]We concluded that in all the circumstances, the appropriate uplift, to the compensatory award, excluding the basic award, was 25%. The compensatory award, totalling the loss of earnings figure £36111.46 (£35901.88), plus £500, amounted to £36611.46 (£36401.88). 25% of that is £9152.87 (£9100.47). 40 £36111.46 (£35901.88) + £500 + £9152.87 (£9100.47) = £45764.33 (£45502.35).[41]Finally, in relation to the compensatory award, the Tribunal applied the statutory cap as required by section 124(1)(1ZA) of 52 weeks’ gross pay, as the lower figure under that section. This was stated in the Remedy Judgment as £434.02 x 52 = £28647.24. The corrected figure for the overall statutory cap is £475 x 52 = £24,700. The Tribunal took the view that this was the appropriate stage at which to apply the cap to the compensatory award, having regard to the applicable statutory provisions and the case of Digital v Clements. There was no contrary authority placed before the Tribunal on this issue.[42]The corrected compensatory award was therefore reduced again, by virtue of the cap, to the sum of (£24,700). With the basic award, the total monetary award was £28647.24 (£24,700) + £1916 (£1900) = £30563.24 (£26,600). Costs Applications[43]Both parties made applications for costs which the Tribunal considered after concluding our deliberations and judgment in relation to remedy. Both parties had been directed to set out their applications and the grounds for them in writing and these documents were in the bundle. The Tribunal heard oral submissions on behalf of each of the parties as to why costs orders should be made and both applications broadly were on the basis that the other party had conducted the litigation unreasonably. It is not necessary or proportionate to set out the grounds in detail, as these were essentially in the documents which both parties had produced.[44]The Tribunal first reached a decision in principle on each application. In relation to the application by the Respondent for costs against the Claimant primarily on the basis that the sex discrimination claims were unreasonably brought or vexatious, the Tribunal had regard to the definition of those words in the Tribunal’s Rules. The lower threshold is posed by the ‘unreasonably’ test, so the Tribunal addressed that.[45]We considered that the Claimant was just on the right side of the line of not being unreasonable in bringing her sex discrimination allegations which were ultimately unsuccessful. The Tribunal referred to our findings and conclusions in the liability judgment about the sex discrimination allegations. It is fair to say that there were no applications for strike out or for the payment of a deposit order in respect of the discrimination allegations. It is unusual in a discrimination case for such an application to be countenanced, in the light of the authorities on this issue. In the circumstances therefore, quite a burden rests on the person bringing the claim to assess the merits of the claim being pursued realistically. The courts have long recognised that discrimination complaints are fact sensitive. Taking all of that into consideration however, we did not conclude that the Respondent had established that it was unreasonable for the Claimant to have brought the sex discrimination complaints.[46]The grounds for the award of costs against the Claimant were therefore not made out, and the Respondent’s application was dismissed.[47]The second application for costs was by the Claimant against the Respondent. The application was made on the basis that it was unreasonable to resist the unfair dismissal complaint. The Tribunal considered that the Claimant had established that it was indeed unreasonable of the Respondent to have resisted the unfair dismissal complaint and we awarded the maximum increase of 25% as a result of the Respondent’s non-compliance with the ACAS Code. This was consistent with the Tribunal’s view that the complaint was effectively unanswerable. The Respondent had dismissed the Claimant without resorting to any procedure. The procedural minimum standards now contained in the ACAS Code have been a feature of good employment practice for decades. The failure to comply with them at all was not simply a procedural error, but, it deprived the Respondent of the opportunity to examine in the cold light of day whether there were indeed adequate grounds for belief in the Claimant’s misconduct, and whether dismissal was the reasonable sanction.[48]We referred to the findings in our liability judgment in which we noted that the Respondent clearly had little or no expertise in proper employment practices. They therefore had no reasonable basis for any expectation of victory in relation to the unfair dismissal complaint.[49]On behalf of the Claimant, the further point was made that the sex discrimination allegations added nothing extra to the trial. This Tribunal dealt with the hearing and we did not agree with that assessment. The case was listed for three days and we ran out of time in terms of the presentation of closing submissions. We considered that the unfair dismissal case on its own including consideration of Polkey and contributory fault issues could and should have been concluded within two days including the Tribunal giving its judgment.[50]We also took into account that costs do not automatically follow the event in the Employment Tribunal. The Employment Tribunal is not a jurisdiction in which costs are routinely ordered. There are many cases in which Claimants do not succeed in respect of any of their claims and no orders are sought or made against them for costs.[51]We considered that the Respondent acted unreasonably in resisting the unfair dismissal complaint, and that this constituted unreasonable conduct of the proceedings.[52]It was also urged upon us that we should find unreasonable conduct by reference to consideration of discussions with a view to settling the case and approaches and responses to ACAS and the manner or nature of those discussions. We rejected that contention.[53]We also addressed, when considering whether to award costs, and if so, at what level, the fact that earlier in the proceedings Employment Judge Warren made a costs order in relation to the postponement in November 2016 which arose because of late disclosure by the Respondent which the Claimant had not had an opportunity to address. That order for costs had been complied with and we did not consider that it was appropriate for the Tribunal to revisit that issue. There was no appeal against Employment Judge Warren’s order and there was no application within time to vary it.[54]After we announced our decision in principle in terms of the applications for costs, we adjourned for Ms Phillips to take instructions, apparently by telephone, as to any relevant circumstances in terms of the Respondent’s ability to pay an award of costs. She told the Tribunal about the number of staff employed by the Respondent and that the Respondent had an annual turnover of about £800,000 and that in the last year they returned a profit of about £20,000 but that in the three preceding years the business produced losses of varying degrees. No-one had attended on behalf of the Respondent to give evidence on this issue.[55]The Tribunal considered that in all the circumstances consistent with our findings about the length of hearing, we considered that even if the Respondent had accepted liability for the unfair dismissal, it was likely because of the calculation of remedy involving the exercise of the Tribunal’s discretion, that a remedy hearing would still have been needed. Whilst we regretted that the hearing had taken as long as it had, and been as keenly contested by the Claimant as it had, we considered that in all the circumstances the costs that we awarded to the Claimant should reflect the fact that she had to pursue something in the order of a two-day hearing in order to succeed in the unfair dismissal claim. We assessed costs in the sum of £1600 plus VAT which comes to £1,920.[56]The Claimant’s application for costs had included a claim in respect of costs incurred earlier on in the case when a firm of solicitors had among other matters effectively prepared a letter before action. The Tribunal did not consider that it was necessary to reimburse the Claimant in respect of those costs which ran to some £3,000. It was relevant that the Employment Tribunal is not a regime in which costs are usually awarded.[1]The Respondent’s application by email sent on 20 March 2018 for reconsideration of the remedy and costs Judgment sent to the parties on 26 February 2018 is refused.[2]A Certificate of Correction is issued with this judgment.[1]The reasons for the Tribunal’s Judgment on the application for reconsideration are set out herein only to the extent that the Tribunal considers it necessary to do so in order to explain its decision, and only to the extent that it is proportionate to do so.[2]The initial application for a reconsideration was made by email sent on 9 March 2018 by Mr Rees of Peninsula, Senior Appeals Consultant acting on behalf of the Respondent. The grounds were stated to be “the calculations of the award are strewn with errors and the maths doesn’t add up” and “There are errors in the dates too”. The application promised that further details would follow in due course.[3]By a letter from the Tribunal dated 13 March 2018, the Respondent was directed to provide details of the grounds of the application for reconsideration.[4]Mr Rees made the application on behalf of the Respondent under Rules 71 and 70 of the Employment Tribunals Rules of Procedure and he relied on the case of Williams v Ferrosan [2004] IRLR 607 and the overriding objective under the Employment Tribunal Rules of Procedure 2013.[5]The original application on 9 March 2018 and the further information provided on 20 March 2018 were copied by the Respondent to the Claimant. The Claimant made no comment on the substance of the reconsideration applications.[6]The Tribunal also records that although the judgment which was sent to the parties on 26 February 2018 suggested under the Judge’s signature that reasons had also been sent out, this was not in fact the case. However, a note written beneath the signature informed the parties that written reasons could be requested. The application on 8 March 2018 from the Respondent also included a request for written reasons. Having said that however, both parties were represented when the judgment and reasons were announced in the Tribunal. The written reasons for the judgment are sent out separately but at the same time as this reconsideration judgment.[7]The Respondent’s application for reconsideration of the award of compensation was in two parts. The first part was based on errors in the award. Virtually all of the errors are matters which the Tribunal considered could be dealt with by way of a Certificate of Correction. Some were typographical errors, and some were errors in arithmetic calculation. One of the errors however highlighted an error as to the applicable figure in respect of the statutory cap on a maximum week’s pay as it applied to an award of compensation for unfair dismissal. Once again however the Tribunal considered that this could be adequately dealt with by the Certification of Correction as attached. It is not a change in principle but the misapplication of the appropriate figure, the Tribunal having used the figure agreed by the parties.[8]The second element of the application asked the Tribunal to reconsider the award for the initial loss of earnings which had been calculated from 18 July 2016 until the date of the remedies hearing on 26 January 2018, an 18-month period.[9]The Tribunal saw no reason to reconsider its judgment in respect of the period of the award of loss of earnings. There was no further detail given in support of this application in this respect, save that the Respondent asked for a recalculation of the total award figure.[10]The next element which the Respondent asked to be reconsidered was in respect of the costs awarded against the Respondent. In the letter of 20 March 2018, it was said that the Respondent was of the view that ‘his’ ability to pay any costs were not fully taken into consideration in light of the company’s profits which were less than £20,000. The Tribunal did indeed take this issue of ability to pay into account at the hearing. Proceedings were adjourned to allow the Respondent’s then representative to take instructions, and then she addressed the Tribunal on the issue. The essence of this application for reconsideration is simply that the Tribunal reached a view with which the Respondent disagrees. That is not an adequate basis for the Tribunal to reconsider its judgment in this respect.[11]The Respondent further stated that the Claimant had brought a claim for pregnancy discrimination that had no reasonable prospects of success and that the Respondent had no alternative other than to resist the claim. The Tribunal considers that the award of costs that was made, namely £1,920 (£1,600 plus VAT) took this into account.[12]The Tribunal noted that there was a further typographical error on the remedy and costs judgment which only recorded the hearing as taking place on 25 January 2018. The remedy and costs hearing was listed for two days. The substantive merits hearing had taken place over three days in February 2017. This was also an issue which could appropriately be dealt with by a corrected Remedy and Costs Judgment.[13]The application for reconsideration did not raise any matters which would lead the Judge to consider that there was a reasonable prospect of the original remedy and costs judgment being varied or revoked. In those circumstances, having regard to the terms of Rule 72(1) of the Employment Tribunal Rules of Procedure 2013, the application for reconsideration was hereby refused. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the corrected remedy and costs judgment set out below is substituted for the remedy and costs judgment which was The unanimous judgment of the Tribunal is that[1]the Claimant is entitled to the total sum of £26,600 as compensation for the unfair dismissal, calculated as follows:a. basic award of £1900 (4 full years x 1 week’s gross pay subject to the statutory maximum - £475).b. Loss of earnings – the difference between what the Claimant would have earned (£42904.92) and what she earned/received (£7003.04) = £35901.88 i. 33 weeks to 17 July 2016 x £434.02 net = £14322.66 net ii. Maternity Leave Period (18/7/2016 – 8/11/2016) = £3739.51, i.e. 6 weeks at 90% of average weekly net income + 10 weeks at £139.58. iii. 9/11/16 – 13/7/17 = £15120.70 (35 weeks at £432.02) iv. 14/7/17 – 25/1/2018 = £9722.05. LESS First Data earnings Mar – June 2016: £2042.04 10.15 Certificate of Correction – rule 69 Case No: 3200209/2016 Stockbrook Manor Golf Club: £628.16 Income from current job: £1959.98 Statutory Maternity Pay received: £2372.86c. Loss of statutory employment rights = £500d. The ACAS uplift of 25% awarded on (b) + (c) above = £9100.47 (25% x £36401.88) Total compensatory award (b) + (c) + (d) = £45502.35 calculated above is subject to the cap imposed by section 124(1)(1ZA) of £475 x 52 weeks = £24,700 TOTAL MONETARY AWARD = £26,600 (basic + compensatory award). The Recoupment Regulations apply to this award as set out in attached Notice. In calculating the prescribed element, the Tribunal applied the proportion by which the figure of £45502.35 was reduced by the application of the statutory cap (54.3%), to the figure which would otherwise have represented the prescribed element i.e. £35901.88. The prescribed element = £19494.72.[2]The Respondent’s application for costs against the Claimant was dismissed.[3]The Respondent was ordered to pay to the Claimant the sum of £1920 (£1600 plus VAT) in respect of costs incurred. Employment Judge Hyde 2 August 2018 Important note to parties: Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing. 10.15 Certificate of Correction – rule 69