Mr S Kisitu v Inclusive Care Support Ltd: 3200241/2018
EMPLOYMENT TRIBUNALS
Case No 3200241/2018
Between
Mr S KisituClaimantInclusive Care Support LtdRespondent
Before
Employment Judge ElgotMs G Cheng (instructed by Counsel) for claimantMr R Clements (instructed by Counsel) for respondentDate 15 March 2021
JUDGMENT
[1]The claim for unpaid holiday pay SUCCEEDS. The Respondent agrees that it owes the Claimant £905.22 and consents to an order that the sum of £905.22 be paid to the Claimant within 14 days. JUDGMENT[2]The Respondent’s application dated 20 March 2019 for reconsideration of the judgment sent to the parties on 22 February 2019 is refused.
REASONS
There is no reasonable prospect of the original decision being varied or revoked, because:[1]The Respondent seeks a re-consideration of the Tribunal’s findings at paragraph 8.6, presumably up to and including paragraph 8.9, that the Respondent’s manager, Mr Justin Gardner discriminated on grounds of age and race against the Claimant over the period January to 3 August 2017 and that this conduct also amounted to harassment over the same period.[2]The Respondent states that it now has documentary evidence not disclosed at the Hearing on 28, 29 and 30 November 2018 in the form of timesheets and rotas which will establish the exact dates on which the Claimant and Mr J Gardner worked together at the Respondent’s care unit at Crow Lane, Romford. This is not new evidence. It was available and could have been produced at the Hearing but was not. I am satisfied that even in the absence of these documents the issue of Mr Justin Gardner’s start date at Crow Lane was properly ventilated and argued and that, as appears from paragraph 8.5 of the judgment, the Tribunal preferred the evidence of the Claimant.[3]Rule 70 of the Employment Tribunal Rules 2013 provides that a reconsideration will only be granted where it is “necessary in the interests of justice to do so”. The interests of justice apply to both parties. Case No: 3200241/2018[4]The Respondent contends that at the remedy hearing listed for 13 May 2019, it will be necessary for the Tribunal to admit and consider this additional documentary evidence in order to ascertain “the number of occasions on which the Claimant and Mr Justin Gardner came into contact and the number of incidents of discrimination or harassment”. The Respondent states that this will be necessary in order to assess quantum presumably only in relation to the award for injury to feelings since no claim for financial loss relates to the period before 3 August 2017 (whereafter no further shifts were allocated to the Claimant).[5]I do not agree that the Tribunal will need, in the interests of justice to both sides, to inevitably make any such findings in detail as to the number of times Mr Justin Gardner and the Claimant interacted over the relevant period. The findings of the Tribunal at paragraphs 8.1-8.4 make it clear that there was a course of conduct of direct age and race discrimination and at paragraph 8.8 that it was made clear to Mr Justin Gardner from May 2017 onwards that this was unwanted conduct by reference to s.26 Equality Act 2010 (harassment).[6]It is not contrary to the overriding objective or contrary to the interests of justice for the Tribunal to assess remedy based on its original findings of fact and the documents which were disclosed and available at the liability hearing.[7]In all the circumstances, the Respondent’s application is refused.[1]The Claimant worked for the Respondent as a support worker from 15 August 2016 until 28 December 2017. This was his first job and when he commenced the employment he was 19 years old. The Claimant worked shifts including night duties at the Respondent’s unit for adolescent men in Crow Lane, Romford and carried out welfare and caring support for client service users who have a variety of mental health and learning disabilities. He enjoyed the work itself and there were no complaints during the initial period of his employment up to 3 August 2017 about his capability, commitment or conduct. When he was dismissed on 28 December 2017 he had a clean disciplinary record. The Claimant identifies as Black African.[2]The Tribunal heard oral evidence from the Claimant himself. His mother Mrs Evalyn Kisitu produced a signed witness statement, attended at the Hearing and was sworn in but the Respondent indicated that it did not wish to cross-examine her and we had no questions for her. Her evidence is therefore uncontested. The Respondent’s witnesses were Mr Justin Gardner, Unit Manager at Crow Lane together with Ms Joanne Gordon, then the Senior Support Worker at Crow Lane. We also heard evidence on behalf of the Respondent from Ms Marina Chorbadzhiskya the Human Resources Manager and from Mr Rashid Kamara a colleague of the Claimant when he also worked at Crow Lane. In accordance with the usual practice of the Tribunal we only read those documents in the agreed bundle to which our attention was specifically directed by the parties, their representatives or the witnesses. We had the benefit of oral submissions from both representatives and a Skeleton Argument submitted by Ms Cheng.[3]It is helpful to summarise the content of the Preliminary Hearings in this case at which both parties had the benefit of the Judgment and the Case Management Orders and Directions given by the Employment Judge on each occasion: - 3.1. On 3 May 2018 Employment Judge Barrowclough permitted the Respondent to extend time for presentation of its ET3 response which had been due on 2 April 2018. Time was extended and service confirmed as 1 May 2018. 3.2. On 31 May 2018 Employment Judge Speker gave judgment at a Preliminary Hearing and decided that the Claimant’s discrimination claims had been presented out of time but that it was just and equitable to extend time and allow those claims to proceed. The Employment Judge also decided that the Claimant did not have the period of two years continuous service in the Respondent’s employment which is required in order to present a claim for unfair dismissal and accordingly the unfair dismissal claim was dismissed. Employment Judge Speker found that the effective date of termination of the Claimant’s employment was 28 December 2017. That date is important in relation to our findings below in respect of the claims of harassment and victimisation and will be relevant to our determination of the remedy awarded. 3.3. Finally, at a telephone Preliminary Hearing on 31 August 2018 Employment Judge Russell in her Case Management Summary sets out clearly the final list of issues in this case of which the parties were reminded at the commencement of this Hearing on 28 November 2018. In respect of those issues the claim for unpaid wages is hereby dismissed upon withdrawal by the Claimant as confirmed by the Claimant’s representative on the second day of the Hearing, 29 November 2018.[4]The claim for unpaid holiday has been the subject of an Order, by consent, for payment and a Judgment dated 30 November 2018 was issued to the effect that the sum of £905.22 be paid to the Claimant. The remaining issues and claims are determined as below: -[5]Breach of Contract5.1 The Claimant pursues a claim for £250 which relies on a promise made on 23 November 2017 by one of the Respondent’s Group Managers, Mr Idriss Kamagate (Group Manager-Leaving Care) to pay “compensation for the delay in addressing your complaint”. The Claimant says that it was agreed to pay that amount to him in instalments. No such monies were paid even in part to the Claimant.5.2 We find however that the Claimant never accepted the offer of £250 compensation because he considered it to be an insufficient recompense and because it did not take into account what he calls “the loss of earnings had I been working from August 3rd”. The offer of compensation was therefore never accepted by the Claimant and there was insufficient certainty to form an enforceable contract. The Claimant, despite being told in an email to him dated 29 November 2017 (at page 89 of the bundle) that the sum was ready for collection at the Respondent’s Head Office, did not go to the office to collect the money.5.3 In the absence of an enforceable contract the Claimant cannot sue for breach and his claim does not succeed. Ms Cheng conceded in her oral submissions on behalf of the Claimant that he had not unconditionally accepted the offer of compensation made by Mr Kamagate in November 2017.[6]Direct Race and Age Discrimination 6.1. These claims are made under section 13 Equality Act 2010: ‘person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others’. The Claimant relies on the protected characteristics of race and age. 6.2. First it is said by the Claimant that during an altercation on 3 August 2017 between him and his line manager, Mr Justin Gardner, the Supported Living Unit Manager at the Respondent’s Unit at Crow Lane, Romford Mr Gardner became angry and aggressive and called the Claimant the abusive and offensive names which are set out in paragraph 17 of Ms Cheng’s written submissions and also referred to at paragraphs 14, 40 and 41 of the Claimant’s witness statement. None of those insults refer to the Claimant’s racial identity as Black African but they do refer to his age. On 3 August 2017 the Claimant was just 21 having had his birthday on 2 August. Mr Gardner was aged 37 at the time. 6.3. At page 47 of the bundle is the Claimant’s emailed complaint/grievance timed at 10:12am on Thursday 3 August 2017 and addressed to Mr Wayne Gardner, the Group Manager- Supported Living. Mr Wayne Gardner is Mr Justin Gardner’s brother; he was at the time more senior in the Respondent’s structure than Justin Gardner. There is a copy of the Respondent’s structure chart at page 128. The Claimant’s email reports and repeats the content of the verbal abuse the Claimant alleges he received from Justin Gardner, which he describes therein as “verbally abusive and ageist”. 6.4. Mr Justin Gardner denies at paragraph 32 of his witness statement that he has ever ‘insulted, sworn at or called Salvyn the names he has accused me of’. Mr Gardner alleges on the contrary that on 3 August 2017, when he arrived at work at approximately 8:45am, he discovered that Mr Kisitu had failed to follow his instructions to write a monthly report for one of the Respondent’s service users at Crow Lane and that when this failure was queried the Claimant himself became so aggressive and angry that the Claimant was told to leave the premises. Mr Justin Gardner says that foul language was used by the Claimant towards him. There is therefore a direct conflict of fact between the Respondent’s witness Mr Justin Gardner and the Claimant as to whether the words of alleged direct age discrimination “fucking stupid kid” “fucking kid” “little boy”, “you are a little kid in fact a boy, I am the adult so shut your fucking mouth, I have the power to get you fired so keep your mouth quiet little boy” were used on that morning by Mr Gardner or not. 6.5. We are satisfied that the language used by Mr Gardner towards the Claimant on 3 August 2017 by reference to his relatively young age was direct age discrimination and that because of the protected characteristic of age the Claimant was treated by the Respondent less favourably than the Respondent treated or would have treated others not in the Claimant’s age group.[7]The reasons for our decision to accept the evidence of the Claimant rather than the evidence of the Respondent are as follows: -7.1 The Claimant, within an hour of leaving the unit at Crow Lane, wrote a grievance emailed to Wayne Gardner. He states how upset he was about the experience of conflict with Justin Gardner and writes, “I am going to seek legal advice about this unfair treatment, abusive conduct, being bullied and victimised at the hands of your brother because of my age as I kept on being referred to as a “fucking disrespectful kid”. He therefore made a detailed contemporaneous complaint about the treatment he had received at the hands of Mr Justin Gardner.7.2 Mr Justin Gardner also sent an email to his brother Wayne copied to Joanne Gordon who was then the Senior Support Worker at Crow Lane. It is timed an hour earlier than the Claimant’s email and gives Justin Gardner’s account of the events on the early morning of 3 August 2017, referring to the Claimant’s rudeness, insubordination and verbal abuse. Thus, the contemporaneous email accounts of Mr Justin Gardner and the Claimant are also in direct contradiction.7.3 We should first repeat the fact that, despite the serious allegations made by Mr Justin Gardner against the Claimant Mr Kisitu has never been investigated, disciplined or sanctioned in respect of any alleged misconduct even though, as found by Employment Judge Speker, he remained in the Respondent’s employment until 28 December 2017.7.4 Secondly, as emerged only from Mr Justin Gardner’s oral evidence in the Tribunal, the altercation between him and the Claimant on 3 August 2017 was in fact overheard in its totality by Mr Wayne Gardner who did not give evidence at the Hearing. Justin Gardner told us that when he rang his brother, a telephone call which is referred to in the Claimant’s email at page 46 and in Mr Gardner’s witness statement at paragraph 23 and the Claimant’s witness statement at paragraphs 40 and 41, the loud speaker on Justin Gardner’s mobile phone was turned on. Mr Justin Gardner confirmed in his oral evidence “yes, Wayne could hear us and we could hear him”. We conclude that there was therefore a direct witness to this incident who could have provided us with detailed accurate evidence of what was said and who might have assisted us to resolve the contradictory evidence between the parties.7.5 In fact, Mr Wayne Gardner has provided no witness statement in these proceedings but has sent a letter addressed “to whom it may concern” at page 103 of the bundle written on 12 October 2018, some fourteen months after the 3 August 2017 incident. That letter refers to the Claimant “raising his voice and continuing to shout abusive language ... as Salvyn left the Unit … instructing Justin to come outside”. The allegation that the Claimant invited Justin Gardner to ‘come outside’[and fight] is not an allegation made by any of the Respondent’s other witnesses including Justin Gardner himself. It is therefore not credible. The final paragraph at page 103 contains allegations against the Claimant which are also not made by any other witness regarding previous confrontational behaviour by the Claimant. On the contrary the Claimant has never been admonished or disciplined for any confrontational behaviour and Ms Gordon confirmed in her evidence that he was a competent, conscientious and well regarded worker. It eventually transpired in late November 2017 that the Claimant was asked by Mr Kamagate to return and work again at Crow Lane as appears from page 68 of the bundle.7.6 We find the letter at page 103 to be an unreliable source of information which was composed retrospectively to support Mr Justin Gardner’s account. Thirdly, Mr Justin Gardner also told us that CCTV film of the argument between him and the Claimant on 3 August 2017 would have been available if it had been requested promptly. The Respondent keeps CCTV tapes for one month. Despite an alleged telephone conversation with the CCTV Manager (who did not give evidence on behalf of the Respondent) Mr Justin Gardner failed to give any instructions that the tapes be preserved or stored in order to provide evidence of what had occurred, even though there were directly opposed factual accounts. Mr Wayne Gardner similarly failed to give any such instruction despite the fact that he overheard the altercation. It is to be expected that where the Respondent alleges abuse, insubordination and misconduct by an employee it would keep the CCTV evidence for use in future disciplinary procedures. On page 111 the Respondent has certainly used CCTV footage as part of the evidence leading it to dismiss another employee.7.7 We find that Mr Justin Gardner was angry on 3 August 2017 and for this reason used discriminatory language against the Claimant. It is not necessary for us to make any finding as to whether he was justifiably angry since provocation is no defence to discrimination. Mr Justin Gardner believed that the Claimant had “lied” about being sick when he was absent from work on 31 July – 1 August 2017, had in fact played, in his capacity as a semi-professional player, in a football match on 1 August and was insubordinate in refusing to write a report about a service user relating to a period when the Claimant had been absent on holiday. All of these factors conspired to make him feel frustrated and annoyed with the Claimant, whether justifiably or not, and we are satisfied that it is more likely than not that in those circumstances he used age discriminatory language. We infer that the failure to call Wayne Gardner as a potentially decisive witness and/or to keep the CCTV footage arose from the fact that neither piece of evidence supported Mr Justin Gardner’s denials.7.8 Mr Justin Gardner repeatedly told us that he had video evidence on his mobile phone that the Claimant had been playing football whilst allegedly absent through sickness. He did not however show that video to any other person in the Respondent organisation or to the Tribunal. No disciplinary action was taken against the Claimant in this respect. Finally, we observed that Mr Justin Gardner’s demeanour when giving evidence at the Hearing was to become easily agitated and frustrated, pointing his finger at counsel for the Claimant and angrily resisting any challenge to him. He found it hard to control his emotions. This was in contrast to the Claimant’s demeanour which, although he demonstrated some degree of distress, was to remain calm. This observation is one additional minor factor which leads us to prefer the evidence of the Claimant about the events of 3 August 2017. It demonstrates that Mr Justin Gardner was the one more likely to have lost his temper and abused the Claimant in ‘ageist’ terms.[8]Alleged incidents of age/race discrimination before 3 August 2017 8.1. The Claimant alleges that prior to 3 August 2017, for a period commencing in January 2017 when, he says, Justin Gardner first arrived as Unit Manager at the Crow Lane Unit, he experienced what is described in paragraph 18 of Ms Cheng’s written submissions as “many occasions” when Justin Gardner “would call the Claimant names and treat him in a derisive and dismissive manner on account of his age and race. Those allegations are set out at paragraph 17 – 28 of the Claimant’s witness statement. 8.2. The Claimant had been at Crow Lane since August 2016. His allegation is that when Justin Gardner first arrived they had a friendly and “bantering” relationship particularly since both of them were involved in football and football coaching. However the Claimant increasingly came to dislike the expressions used by Mr Gardner towards him using terms such as “you are a little kid” “hey, small African boy” “hey kid, come and give us the handover”, “hey African boy who speaks with an English accent”. The Claimant says this was no longer ‘banter’ but began to make him feel extremely uncomfortable. He took offence at being spoken to by his manager in this way. It is the Claimant’s allegation that this terminology, which he describes as demeaning, was used inappropriately by Mr Justin Gardner at shift handovers and at other points of interaction during the occasional day shift which they both worked. Mr Gardner concedes that they probably did do eight or nine handovers with each other and met on the same shift at Crow Lane maybe two to five times. 8.3. The Claimant is certain and we accept his evidence that in May 2017 he ‘had a word’ with Mr Justin Gardner and asked him not to treat him in this disrespectful and unprofessional manner but that the demeaning behaviour towards him continued. 8.4. The uncontested evidence of the Claimant’s mother Mrs Evelyn Kisitu corroborates the Claimant’s evidence. The Claimant lives with his parents. Mrs Kisitu said that when her son was at home with her he made numerous complaints that he felt discouraged, demoralised and annoyed by this name calling which referred to his Black African identity and his youth. She describes eloquently at paragraph 7, 8 and 9 of her witness statement that she encouraged her son to persist in pursuing his career, his first ever job, and to try to ignore/put up with the treatment he regarded as degrading. In fact, in paragraph 9, she says that by April 2017 she and the family even began discussing with the Claimant whether he should choose another career and give up his job with the Respondent. The unchallenged evidence of the Claimant’s mother supports the Claimant’s account of his treatment by Mr Justin Gardner in the period leading up to 3 August 2017 which we find to amount to direct race and age discrimination and to harassment by reference to section 25 Equality Act 2010:- ‘A person(A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B’. 8.5. There was considerable dispute in evidence between the parties as to whether Mr Justin Gardner commenced work at Crow Lane in January 2017 or in April 2017. The Claimant is clear that he arrived in January and that this is when the discriminatory conduct began to occur. The Respondent has failed to provide any documentary evidence in the form of rotas, contracts, correspondence etc. which would show the exact date when Mr Justin Gardner took on what he described as a new ‘project’ at Crow Lane. We noted that all the Respondent’s witnesses were able to recall the exact date in April 2017 when Mr Justin Gardner began working with them at Crow Lane. Ms Gordon and Mr Kumara (at paragraph 8 of his statement) were unable to recall any other dates with such exactitude. Ms Gordon for example could not recall the date on which she herself commenced employment with the Respondent. When Mr Kumara was asked how he had known the exact date of Mr Justin Gardner’s arrival he hesitated for a considerable time and said “I know when I was given this statement. I didn’t know when Justin started it’s an estimated period”. We conclude that the Respondent’s witnesses did not remember these dates from their own recollection or records but have been supplied with the information and asked to give evidence which is consistent with each other. 8.6. We therefore prefer the evidence of the Claimant and his mother, Mrs Evalyn Kisitu, that Mr Justin Gardner and the Claimant were interacting and working together at Crow Lane from January 2017 and that by May 2017 the Claimant had made it clear to Mr Gardner that the persistent use of discriminatory language towards him was ‘unwanted conduct’ by reference to Section 25 Equality Act 2010 as set out above. 8.7. Both the protected characteristics of race and age are relevant. We are satisfied that during the period from January 2017 to 3 August 2017 Mr Gardner directly discriminated against the Claimant by treating him less favourably than he would have treated others who were not of black African descent and less favourably than he would have treated others who were not in the age group 18 – 23. That less favourable treatment consisted of using demeaning and insulting language towards the Claimant as set out in paragraph 8.2 above and described in the Claimant’s witness statement at paragraphs 17-25. We have identified the age group of 18-23 as being the age at which employees have left school or college and are in their first permanent job. 8.8. We are also satisfied that this conduct amounted to harassment. It was unwanted conduct related to the Claimant’s age and race which had the purpose or effect of violating the Claimant’s dignity and creating a degrading, humiliating and offensive environment for him at work. The perception of the Claimant that he was being routinely humiliated is described eloquently, in his mother’s witness statement at paragraphs 3-9 and by him. Mr Kisitu said, “he was mocking my accent calling me a little kid or a stupid little kid if I made mistakes”. Strong obscene language was not used during this period as it was on 3 August 2017 but we are satisfied that the Claimant felt belittled, upset and embarrassed by Mr Justin Gardner’s conduct towards him particularly in front of vulnerable service users who are approximately the same age as him and who he felt he was working hard to assist and support. It did not occur at every interaction but it was no longer ‘banter’ because it had gone too far. We are satisfied that the Claimant reached what he called ‘boiling point’ and told Mr Justin Gardner in May 2017 to stop this conduct because he could not take it anymore. The ‘quiet word’ which the Claimant describes in paragraphs 24 and 25 of his witness statement, although ineffective in stopping Justin Gardner’s behaviour, is sufficient evidence of the fact that the Claimant made it clear that the conduct towards him was unwanted. To thereafter persist in that unwanted conduct with the effect of distressing the Claimant and maintaining a degrading work environment was harassment related to the Claimant’s relevant protected characteristics of age and race. 8.9. The Respondent submits that if the interaction between the Claimant and Justin Gardner has been as difficult as the Claimant describes, he should have complained or raised a grievance and in particular had the opportunity to talk to Ms Gordon. We do not agree that the failure to take such steps undermines the Claimant’s account of events; he was in his first job, he did not want to lose that job, his parents initially encouraged him to stick it out. He legitimately felt that he could not complain to Wayne Gardner about his brother Justin. He felt that he could not complain to Ms Gordon who was junior to both Wayne and Justin Gardner because she would have no power to intervene.[9]Continuation of harassment on 3 August 2017 9.1. By reference to the list of issues at page 27Q of the bundle we are also satisfied that on 3 August 2017 Mr Justin Gardner engaged in the unwanted conduct set out at 2.2.1, 2.2.2 and 2.2.3. He shouted at the Claimant and dealt with him in an intimidating and threatening manner and that unwanted conduct also amounted to harassment related to the Claimant’s relevant protected characteristics of age. It was part of the same incident and course of conduct described in paragraphs 6 and 7 above in respect of which we have accepted the Claimant’s account of what occurred on that morning. 9.2. We are not satisfied that the conduct described in paragraph 2.2.4 and 2.2.5 of the list of issues relates to any relevant protected characteristic of the Claimant and consequently make no detailed findings of fact in relation to these matters. The Claimant was left on his own for a short period in the Crow Road Unit on the morning of 3 August 2017 because Mr Justin Gardner was late arriving for work and the Claimant’s co-worker had taken a service user to college that morning. The Claimant was asked to write a monthly report as Mr Justin Gardner expected him to do it as part of his usual work. The Claimant was reluctant to write a report covering a period when he had been on annual leave and had no knowledge of the service users’ requirements but Mr Justin Gardner’s insistence that he should do so was not harassment by reference to the Claimant’s age or race. The conflict which arose did appear to be a cause of Mr Gardner’s anger but it does not excuse or justify discrimination.[10]Victimisation10.1 We are satisfied that on 3 August 2017 the Claimant did a ‘protected act’ as defined by Section 27 Equality Act 2010 because he wrote the grievance which is at page 46 of the bundle which refers to allegations that the Respondent has contravened the Equality Act 2010 by ‘ageist’ verbal abuse and harassment. Victimisation occurs where:- ‘A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because B does a protected act, or A believes that B has done or may do a protected act’.10.2 As a result of his email of complaint and because his queries were not immediately answered, including a request for a written confirmation of his apparent dismissal, the Claimant did not work his pre-arranged shift on 6 August 2017 and was thereafter offered no other shifts at Crow Lane or any other unit run by the Respondent. Despite various reminders addressed to the Respondent, some of which were acknowledged but not actioned, he heard nothing substantive until 21 September 2017 in a letter which appears at page 51. We were told this letter was written by the Respondent’s Service Manager Aitzi Ugalde although there is no signature or indication of the author on the letter itself. The Service Manager’s post sits just below Director level on the structure chart at page 128. The Respondent’s witness Ms Marina Chorbadzhyiska confirmed in her oral evidence that she gave Human Resources advice in relation to its content. The letter, despite confirming that the Claimant is still employed, still does not allocate any shifts to him or refer to future work and income but invites him to participate in a mediation “to speak with all parties concerned so that we may review the matter and find a suitable resolution”. There is also reference to a continuing investigation into the Claimant’s complaint which will be “fair and unbiased”.10.3 No results or report of any investigation emerged. The proposed mediation meeting did not take place for almost another month until 18 October 2017 and was conducted by an “independent mediator” named Leona Brown not employed by the Respondent but said by Ms Chorbadzhyiska as being “from a solicitor’s firm”.10.4 When the Claimant arrived at that meeting accompanied by his mother Mr Justin Gardner was not in attendance. We are satisfied therefore that this was not in the nature of a mediation where both parties meet together with a trained and independent mediator and attempt to resolve their differences. The notes of the meeting at page 61 of the bundle are wrongly dated 15 October 2017 and fail to record the attendance of Mrs Kisitu. The meeting began at 4pm and Mrs Kisitu says she did leave early before the meeting finished because “it appears from the start that the Chair was not impartial. I left at 4.30pm before the meeting finished because [she] was putting words in his mouth as I was distressed”.10.5 At the meeting Ms Brown had some notes, which appear at page 60, of an interview with Justin Gardner on 15 October 2017. The Claimant was not at that interview and did not see the notes of it in advance of his meeting with Ms Brown. Ms Chorbadzhyiska confirmed to us that it was a’ telephone conference’ with Mr Gardner. In his evidence Mr Justin Gardner did not recall being interviewed at all, whether by telephone or otherwise, and so the content of page 60 was not familiar to him. He said in response to the Employment Judge’s question “it’s my account of what happened I think. I think I did it by email. I cannot remember it”. Certainly, the Claimant had no opportunity to see the content of page 60 before he attended on 18 October 2017 for what he thought was a mediation meeting. Nor can the Claimant have seen the documents at page 58 and 59 headed “Review of Documents Provided” because two thirds down page 59 are some lines of redacted text which the Respondent says are privileged legal advice. We assume that the text at the foot of page 62 and all of page 63 are redacted for the same reason.10.6 It is apparent from the notes of the 18 October 2017 meeting (taken by one of the Respondent’s employees, Saberina) that, without notice that this would be the purpose or content of the meeting, Ms Brown intended to investigate what she refers to as “a counter allegation” made by Mr Gardner about the Claimant’s conduct. This intention is consistent with the text under the heading “Initial Findings” at the top of page 60 which identifies potential ‘Gross misconduct’ by the Claimant consisting of aggressive behaviour and failure to follow management instruction, which ‘may also give rise for further disciplinary’. We repeat that the Claimant was not notified that when he attended on 18 October 2017 there would be any discussion of such allegations against him. It is hardly surprising therefore that he was unwilling to engage in such a process as is recorded at page 62 “he feels that the process is not independent of ICS [Inclusive Care Support] and is bias (sic) and requests that the meeting concludes”.10.7 The conclusions of Ms Brown were that :-• It has not been possible to mediate;• That Justin Gardner has raised conduct issues against the Claimant which may amount to gross misconduct;• That the Claimant has been given the opportunity to hear the counter allegation to his own complaint, but has refused to engage;• That the Claimant needs to be invited into the office for disciplinary action regarding his conduct as alleged by Justin Gardner.• That it may not be possible for the Claimant to return to work until the issues relating to his conduct have been addressed. The Claimant has never been formally suspended from work and he had not been disciplined before the meeting on 18th October 2017.[11]We are satisfied that the conduct of this meeting by Ms Brown on behalf of the Respondent and its outcome, as recorded at page 62 but not communicated to the Claimant, was ill considered and confusing, it lacked clarity of purpose (it was neither a mediation nor an investigation as referred to in Aitzi Ugalde’s letter at page 51) and there was a total failure of proper communication with the Claimant or disclosure of relevant information to him. As such it was conducted unfairly and contrary to principles of natural justice in such a way as to amount to an additional detriment caused to the Claimant. He was left distressed and dispirited as he describes in his witness statement at paragraphs 78-80. We agree that he formed the reasonable view that ‘there was no point of this meeting as she had already made up her mind that I was the aggressor’. We are satisfied that this detriment, in addition to the substantial initial delay in responding to his grievance and the failure to provide any work in the interim period, was caused to the Claimant as a result of the protected act of lodging his grievance on 3 August 2017. Consequently, we find that the Claimant’s complaint of victimisation succeeds.[12]No outcome of the 18 October 2017 meeting was notified to the Claimant. He sent several emails chasing a response, for example at page 66 in an email dated 13 November 2017 he writes to Andrea Osborne, a Business Support Officer at the Respondent’s Head Office stating “as you can imagine, I am at a total loss and confused as to what is going on”. This further delay and lack of communication is an additional victimisation.[13]Thereafter, in late November 2017, it is not at all clear how and when he became involved, a Senior Manager, Idris Kamagate, Group Manager intervened. Mr Kamagate did not appear as a witness for the Respondent. Transcripts of the text messages between him and the Claimant are at pages 88 – 90.[14]The correspondence from Mr Kamagate demonstrates a completely different approach by the Respondent. Far from suspending the Claimant from work and/or commencing disciplinary action against him for alleged gross misconduct as recommended by Ms Brown the suggestion in a text at page 84 and in an email at page 68 is that the Claimant will now be given regular shifts at Crow Lane “away from Justin who has been placed at another site” and that compensation for the delay ‘in addressing your complaint’ will be made, later confirmed to be an offer of £250 which the Claimant did not accept as enough. This correspondence with Mr Kamagate reveals a complete reversal of the Respondent’s approach to the Claimant. We have no evidence before us as to why the change occurred. It appears that senior management within the Respondent’s organisation took the view that the Claimant had been badly treated, that the conduct and result of the 18th October 2017 meeting had been unsatisfactory and unfair and that there should be an attempt to get the Claimant back to work in his original workplace but separated from Mr Justin Gardner who would work elsewhere. Mr Kamagate writes to the Claimant ‘I got your back brother’, implying that he will support him back in to work and there will be no disciplinary action against him. The correspondence is, in effect, an admission of victimisation and harassment by the Respondent against the Claimant. In fact, this initiative by Mr Kamagate did not succeed either.[15]The Claimant was left in limbo until he received the email dated 28 December 2017, which referred to a meeting to discuss his ‘work prospects’. We refer to paragraphs 11-15 of Employment Judge Speker’s judgment dated 31 May 2018 in which he finds that the reference in that email to ‘work prospects’ is to ‘work in the future’ on the basis of a new agreement. He concludes that it was only upon receipt of that email that the Claimant finally understood that his ‘old’ employment had come to an end.[16]The continuing failure up to and including 28 December 2017 to make the employment relationship clear caused the additional detriment of a continuing stressful situation for the Claimant and is, we find, part of the same pattern of victimisation.[17]Finally, we are satisfied that the Respondent has failed, by reference to Section 38 Employment Act 2002 to give the Claimant a written statement of employment particulars and we consider to be just and equitable in all the circumstances to award an amount equal to four weeks’ pay. The amount of a week’s pay will be calculated, if not agreed, at the Remedy Hearing. We are certain that the Claimant signed a copy of his employment contract but was not provided with a copy of his own to take away despite requesting a copy.[18]By reference to Section 207A Trade of Union Labour Relations (Consolidation) Act 1992 these proceedings concerns matters to which the ACAS Code of Practice on Disciplinary and Grievance applies. The Respondent failed, by reason of unconscionable delay and an unfair process carried out by Ms Brown on 18 October 2017, to comply with the Code in an unreasonable way when dealing with the Claimant’s grievance. We will consider at the Remedy Hearing whether to increase any award we make to the Claimant by a percentage up to 25%.[19]The remedy to which the Claimant is entitled shall be determined at a one-day Remedy Hearing listed for 13 May 2019 at East London Hearing Centre commencing at 10 am. A Notice of Hearing will be sent out in due course. This date has been fixed without reference to the availability of the parties or their representatives and any witnesses. If either party wishes to make application to change the date of the Remedy Hearing it should contact the Tribunal as soon as possible.[20]In preparation for the Remedy Hearing the Claimant shall, 14 days before the date of the Remedy Hearing, serve an updated Schedule of Loss on the Respondent and the Respondent is, within 7 days thereafter, at liberty to serve a counter schedule if it so wishes. The parties shall agree and the Respondent will prepare six copies of an agreed bundle of relevant documents relating to the remedy issues only and bring four copies to the Tribunal on 13 May 2019 but not send it to the Tribunal office beforehand. Witness statements addressing the issues of remedy which are set out in the Case Management Summary of E J Russell at paragraph 2.17 on page 27R shall be exchanged simultaneously no later than 14 days before the date of the Remedy Hearing.[1]The Claimant having succeeded in his claims of age and disability discrimination he is entitled to remedy by way of compensation pursuant to s 124 (2) (b)Equality Act 2010 as follows. Subsection (5) does not apply:- Compensation for Injury to Feelings £ 18,000 Compensation for Loss of Earnings £ 6162.98 This loss of earnings element is calculated by taking the 21 weeks from 3 August 2017 until 28 December 2017 and multiplying by £352 agreed weekly net pay (£7392) less sums received from the Respondent totalling £ 1229.02 (850.22+378.80) =£6162.98.[2]By reference to section 207A Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA)the Tribunal is satisfied that there has been an unreasonable failure by the Respondent to comply with the ACAS Code of Practice relating to Disciplinary and Grievance Procedures and considers it just and equitable to increase by 22.5% that part of the Injury to Feelings award in the sum of £3000 which it attributes to the failure of the Respondent to properly and promptly respond to the Claimant’s grievance dated 3 August 2017. 3 22.5% of £3000 is an additional £675 payable by the Respondent to the Claimant.[4]The award for Loss of Earnings is similarly uplifted by 22.5% in the amount of £ 1386.67.[5]Interest is awarded pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 at a rate of 8% per annum.[6]The interest period for the injury to feelings award plus the uplift (total £18,675) begins on the date of the act of discrimination which we have fixed as 15 May 2017 for the reasons given below and ends on 12 February 2021. The interest period for the past financial loss plus the uplift (total £7549.65) begins on the mid-point date which is 26 March 2019 and ends on 12 February 2021.[7]The total sum of interest is £ 5603.52 on the injury to feelings award and £1126.51 on the award for past loss of earnings[8]A sum of £1408 is payable by the Respondent to the Claimant in respect of the failure to provide a copy of written employment particulars. That sum represents four weeks’ pay at the rate of £352 net basic pay per week which is an amount agreed between the parties based on average pay for 3 months May-July 2017.[9]The grand total payable by the Respondent to the Claimant within 28 days is £ 34,362.68 (18,000 +6162.98+675+1386.67+5603.52+1126.51+1408)[1]This Remedy Hearing was postponed from 13 May 2019 pending the outcome of both parties’ appeals in the Employment Appeal Tribunal. The Claimant’s appeal concerns the costs of the liability hearing. The Respondent’s appeal has been found by the EAT to be lodged out of time. The Respondent has further appealed against that decision but meanwhile it is now necessary in the interests of justice to proceed with the remedy hearing and assess compensation for what the Respondent acknowledges as proven disability and age discrimination for which the Claimant has received no apology or expression of regret.[2]We heard evidence on remedy from the Claimant himself and from his mother Mrs Evalyn Kisitu both of whom prepared additional witness statements. The Claimant has two witness statements which are specific to remedy- one was prepared for the postponed 2019 hearing and one was lodged for use at this hearing. The Respondent’s witness was its Human Resources Manager Ms Marina Chorbadziska. There is an indexed bundle of documents relevant to remedy prepared by the Respondent and a supplemental Claimant’s bundle both exchanged between the parties and sent electronically to the Tribunal. In accordance with the usual practice of the Employment Tribunal we only read those documents to which our attention was directed by counsel and/or the witnesses.[3]We had before us a copy of the Reserved Liability Judgment dated 22 February 2019 and sent to the parties on 7 March 2019 (‘the Liability Judgment’).[4]The Claimant has produced an updated Schedule of Loss and there is a Counter Schedule of Loss from the Respondent. Both documents contain detailed footnotes amounting to preliminary outline submissions which were prepared for the postponed May 2019 hearing. Ms Cheng prepared a written Skeleton Argument.[5]In addition we heard helpful oral closing submissions from both counsel. Mr Linstead also usefully provided a comprehensive list of authorities for our consideration.[6]There is no application for costs before this Tribunal and both parties agreed that no such application would be considered at this hearing.[7]In relation to the Liability Judgment and the detailed findings of fact contained therein which describe the unlawful behaviour of the Respondent towards the Claimant we wish to make it clear that no duplication or ‘double counting’ of separate acts or headings of discrimination has occurred in this award of remedy. There is no over-compensation in our calculations. The Claimant is entitled to the global award set out below on the basis that he has been subjected to acts of age discrimination on 3 August 2017 and that the conduct of the Respondent towards him over the period from January 2017 to 3 August 2017 constituted race and age discrimination.[8]So far as the period from January to August 2017 is concerned we are certain, by reference to paragraph 8.3 and 8.6 of the Liability Judgment that by no later than mid May 2017 the Claimant had made it clear to Mr Justin Gardner that the demeaning way in which Mr Gardner spoke to him by reference to his Black African identity and his young age was unwanted and unacceptable conduct towards him. We have therefore, for the purposes of calculating interest taken the date of 15 May 2017 as the date of the act of discrimination. (We need hardly point out to the parties that a slightly earlier or slightly later date will make little difference to the total interest calculation).[9]We have concluded at paragraph 10 of the Liability Judgment that the Claimant was victimised as defined by s 27 Equality Act 2010. The remedy we have awarded also encompasses this type of unlawful discrimination. However, there are specific findings we have made below which explain the extent and length of the period of victimisation for the purposes of the award for loss of earnings and also the uplift on both the award for financial losses and the injury to feelings pursuant to s 207A TULRA.[10]The £18000 award for injury to feelings has been fixed by reference to the bands set out in Vento v Chief Constable of West Yorkshire Police 2003 IRLR 345 EAT (‘the Vento case’). We have determined that the injury to the Claimant falls within the middle band which, allowing for inflation since Vento was decided, was £8400-£25,200 in 2017. Within that band we have, by reference to the legal principles drawn from the authorities and the experience of the tribunal, selected a point just above midway in the middle band to reflect the factors set out below.[11]We have reminded ourselves that the purpose of an award for injury to feelings is compensatory and is not to punish the Respondent. It is to compensate the Claimant for the effect of the unlawful discrimination on him.[12]We make the following findings in relation to this compensatory principle:-12.1 As stated above the Respondent has been found liable for discrimination based on more than one protected characteristic and whereas we do not consider it necessary to make a separate award for each we are satisfied that this fact has increased the overall upset and distress experienced by the Claimant. He received discriminatory treatment not only because of his racial identity as Black African but also because he was a young man in the work place. He was then aged just 21 years old in his first job which he commenced at the age of 19. We reiterate that the Claimant enjoyed his work and there were no complaints or criticisms of his conduct or capability in the role. We find that he undertook a complex and sometimes challenging role helping to care for adolescent men with learning disabilities and mental health difficulties.12.2 Mr Kisitu described eloquently and credibly his experience of deep humiliation which he occasionally describes as ‘degradation’ at the hands of Mr Justin Gardner who was an older man aged then 37. He said this was the first time an ‘adult’ had treated him badly. The Claimant experienced this humiliation and embarrassment because of the exercise by Mr Justin Gardner of an imbalance of power. Justin Gardner was his manager and the Supported Living Manager of the unit at Crow Lane, Romford where the Claimant worked shifts (including nights) as a junior support worker on a zero hours contract. The claimant was also aware that Justin Gardner’s brother, Wayne Gardner, was even more senior as Group Manager-Supported Living and he anticipated that Mr Wayne Gardner was unlikely to take his side in any complaint against Justin Gardner. The Claimant was in a precarious position within the power matrix at work which he understandably and rationally feels was exploited. However he was not outnumbered or bullied by a group on any occasion.12.3 We find that the Claimant suffered additional injury because the loud discriminatory remarks made to him by Justin Gardner were overheard by some service users of the Crow Lane Unit who are vulnerable adults several of whom are young men of a similar age to the Claimant and whom he was supporting as part of his job. This situation exacerbated the annoyance, discouragement and demoralisation which the Claimant experienced because his professional integrity and reputation was undermined in front of vulnerable clients.12.4 On 3 August 2017 Mr Justin Gardner used obscenities and offensive expletives in conjunction with his discriminatory remarks and we find this made his language more threatening and intimidating thus adding to the injury to feelings experienced by the Claimant. Those expletives were not commonly used during the period January to August 2017 and we have taken that fact into account.12.5 We do not accept that Mr Justin Gardner’s discriminatory conduct occurred on an ‘almost daily basis for at least seven months’ as Ms Cheng contends on behalf of the Claimant in her Skeleton Argument. The Liability Judgment at paragraph 8.2 refers to between 10 to 14 times when the two men worked together or did a shift handover at Crow Lane; harassment did not occur on every occasion. Mr Linstead told us that the Respondent has subsequently examined the relevant rotas, which were not in evidence at the liability hearing and which we have not read or analysed at this remedy hearing for reasons of the efficient use of judicial time. We accept his calculation that the rotas show approximately 12 encounters.12.6 The Claimant and Justin Gardner have a social and sporting connection outside work. Both are involved in playing and/or coaching semi-professional football. The Claimant’s distress that his humiliation might be publicised beyond the workplace into this part of his life is also attributable to the discrimination we have identified and contributes to the injury to his feelings.12.7 In this remedy hearing the Claimant occasionally tearfully described feelings of ‘mental depression, worthlessness and hopelessness ‘he said it was ‘a very tough time, I did not want to talk to anyone, I hated bringing it up’. That emotional reaction is consistent with the state of mind he described during the liability hearing and we accept his evidence as truthful in this respect. His mother told us that despite support from a close family the Claimant changed into a ‘different man’ who is prone to low mood, is often withdrawn and experiences episodes of ‘overwhelming shame, embarrassment and humiliation’.12.8 The Claimant has however not been diagnosed with or treated for any mental health impairment. Indeed he is reluctant to be identified as mentally ill and feels that he would only consider some kind of talking therapy or counselling once he has ‘closure’ by way of an end to these proceedings. We find that this is not an unusual or irrational reaction to an experience of discrimination. He has been able to move forward with some enjoyable aspects of his life such as ongoing football and gym training together with some social media, music video and a little modelling exposure via his involvement with the You Tubefamous Sunday League SE Dons team and his friend Don Strapzy aka Andrew McHugh. He has been able to go on holiday mostly funded by his parents. He is not persistently anxious, socially isolated or entirely stymied from moving forward with his social life and he has plans for the future.12.9 Similarly the injury to the Claimant’s feelings has not been so great as to prevent him from obtaining short term and part time work. He now has a driving job and in the intervening period between the effective date of termination of his employment with the Respondent on 28 December 2017 he has worked intermittently in driving jobs, sports coaching with young children, and has continued to be paid per game for his skills as a semi professional football player.12.10 We find that the Claimant did lose congenial employment when his employment with the Respondent came to an end. He did enjoy the challenge of working in his first ‘real’ job with vulnerable young men. He now says that as a result of his experiences at the Respondent he will never work in health or social care again because he does not ‘trust the industry’. We are not convinced that the Claimant has suffered such an extreme injury to his feelings that he was forced to abandon an entire career which he planned in social care so as to follow in his mother’s path ( Mrs Kisitu told us she is a senior social worker in NHS dementia care).12.11 We make this finding because the Claimant has a place at university in Wrexham to study Sports and Exercise Science which he interrupted in 2017 in order to have rhinoplasty surgery. He then took the job with the Respondent in part because he was interested in care work and was encouraged to explore it by his mother but also because he needed an interesting and fulfilling stop gap job which would be a start to his employment history and provide some experience to present to any future employer. He now wishes to resume his university studies and perhaps pursue his primary interest of a sport related career, sports psychology or physiotherapy. The Claimant has not, as he conceded in his oral evidence, lost a planned lifelong career in the caring industry as a result of the discrimination he has endured. Mrs Kisitu said ‘it was not his chosen career, he chose football and college’.12.12 It will be clear from this judgment and from the Liability Judgment that the award of compensation for injury to feelings does not relate to injuries leading directly from the termination of the Claimant’s employment on 28 December 2017.[13]Aggravated Damages13.1 The Schedule of Loss asks for a sum representing aggravated damages. We are satisfied that a full and proper award of ‘ordinary’ damages for injury to feelings has been made. We have reminded ourselves that duplication must not occur. We find none of the features of highly pernicious conduct which might attract an award of compensatory aggravated damages in this case and we make no such award.13.2 The conduct of the Respondent was discriminatory and the Claimant is compensated for that conduct. We have made no finding of fact that it was exceptionally oppressive or insulting or that the Respondent’s motive was to deliberately wound and degrade the Claimant in a vindictive or malicious way. The failures to satisfactorily deal with and resolve the Claimant’s grievance and his employment status for five months of limbo have already been compensated for. Those failures arose out of miscommunication, misunderstanding and incompetence within the Respondent’s organisation rather than a deliberate decision to ignore him and/or injure him further.13.3 The Respondent’s subsequent conduct in conducting these Tribunal proceedings is unexceptional. The Respondent is allowed to robustly defend itself and to appeal the findings of the Tribunal. The Respondent’s representatives have cross examined the Claimant and his witnesses in a professional and suitable manner and they are entitled to query his credibility where the evidence suggests inconsistencies or inaccuracies. The Respondent is entitled to request reconsideration in accordance with the Employment Tribunal Rules of Procedure 2013 and there is no limit on the number of such requests. The delays which have occurred following the filing of the Respondent’s late EAT appeal are not under the control of the Respondent and have occurred during the occurrence of a global pandemic significantly affecting the resources of the Employment Tribunals and the Employment Appeal Tribunal. The Claimant makes no claim for personal injury.[15]Exemplary Damages:15.1 The Claimant asks for exemplary damages. We make no award of exemplary damages in this case. Punitive damages are entirely unsuitable to the assessment of remedy in this case where there has been no oppressive or unconstitutional conduct by a public or state body or by government (as for example in Michalak v The Mid Yorkshire Hospitals NHS Trust and Others in 2011).15.2 We are certain that justice has been done by means of a proper award of ordinary compensatory damages and there is no need to mark this case as one that needs any exceptional response to ‘deplorable’ wrongdoing such as is envisaged in the case law, for example in Fletcher v Ministry of Defence 2010 IRLR 25. There are no findings of any such conduct in this case.15.3 Ms Cheng made a submission on behalf of the Claimant that the Respondent’s failure to discipline or dismiss a valuable employee, namely Mr Justin Gardner falls into the category of conduct ‘calculated to make a profit’ by reference to one of the categories in Rookes v Barnard [1964] AC 1129 HL. We have been shown no evidence relevant to the profit which Mr Justin Gardner does or does not bring to the Respondent’s business or indeed whether he is still employed and in what capacity. We are unable to conclude that there is any evidence that the Respondent cynically chose to bear the cost of discriminating against the Claimant and terminating his employment rather than risk losing the profitable services of Justin Gardner.15.4 The Employment Tribunal case 3302040/14 Mohamed v JJ Food Service Ltd cited by Ms Cheng is not relevant to our deliberations; it contains only a passing reference to a possible scenario in which the failure to dismiss the discriminator might attract exemplary damages. There is no evidence of any such scenario in this case.[16]Financial Losses16.1 The Claimant did not, following the altercation of 3 August 2017 attend work for his next planned shift on 6 August and thereafter was not offered shifts. He was left in limbo. He had a zero hours contract but was accustomed to working several shifts per week as is demonstrated by the fact that the Respondent agrees his weekly earnings at £352 .The Claimant worked no shifts for the Respondent between 3 August and 28 December 2017.16.2 Mr Linstead on behalf of the Respondent makes a robust submission that the period after 3 August 2017 for which past financial loss is calculated should be strictly limited. He argues that the Claimant has not claimed detriment by reference to a failure by the Respondent to offer shifts, pay wages after 3 August 2017 or by reference to the termination of the Claimant’s employment on 28 December 2017.16.3 His submission relies on a close analysis of the List of Issues which was finalised and agreed at a Telephone Preliminary Hearing on 31 August 2018 before Employment Judge Russell and at which both parties were legally represented. The Case Management Summary was sent to the parties on 14 September 2018. It is clear from paragraph 1 of the Summary that the notified purpose of the preliminary hearing was ‘to agree the issues and make any further case management orders required for the efficient preparation of the hearing due to take place on three days from 28 November 2018’. It is instructive to look briefly at the history of case management of these proceedings.16.4 In fact no further case management orders were made. Those made earlier by Employment Judge Gilbert on 10 July 2018 did not require variation. Part of the case management order on 10 July 2018 was a requirement-‘ the parties are to prepare a draft list of the legal and factual issues for determination at the [final]hearing set out separately under each legal head of claim pursued(using the information in the claim form and the response to it as well as the Preliminary Hearing Judgment and Order[of EJ Speker on 31 May 2018] by no later than 24 August 2018’16.5 Thus by the time the represented parties had a telephone hearing on 31 August 2018 they were aware that its primary purpose was to finalise the List of Issues by specific reference to the pleadings and to the Judgment of EJ Speker sent with Reasons to the parties on 22 June 2018. EJ Speker’s Judgment dismisses the complaint of unfair dismissal and extends time for presentation of the discrimination claims. It contains the important finding at paragraph 15 that the employment arrangement between the parties came to an end on 28 December 2017 and that this was the effective date of termination.16.6 The Claimant worked no shifts for the Respondent between 3 August and 28 December 2017.16.7 The parties had the benefit of active case management from these three Employment Judges and knew what was required. We do not accept the submission of Ms Cheng that an earlier Preliminary Hearing held before a fourth judge, Employment Judge Barrowclough, on 3 May 2018, which extends time for presentation of the ET3 Response and goes on to make further orders, contains a final list of claims and issues upon which we can now rely. It only identifies the claims as they appeared at that early stage and indeed the unfair dismissal complaint and a claim for detriment because of protected disclosures were respectively dismissed for lack of jurisdiction and withdrawn by the Claimant.16.8 Therefore we find that the List of Issues was agreed on 31 August 2018 in circumstances where the parties’ representatives and the Employment Judge treated it as a final List which was not subsequently amended. We agree with Mr Linstead’s submission that the only act of discrimination in the List which is stated to have occurred after 3 August 2017 is the detriment at paragraph 2.11.1 which is stated to have occurred because of the protected act of lodging the 3 August 2017 grievance. The detriment is described as follows:- ‘failing to respond to the Claimant in time or at all’ This clearly means failing to respond to the Claimant’s grievance.16.9 This is not an exceptional case like Mervyn v BW Controls Ltd [2020] EWCA Civ 393 where an unrepresented Claimant, not appreciating the nuances of the various causes of action, inadvertently dropped a claim from the List of Issues which was clearly complained of in the ET1 and was permitted by the Tribunal to re-introduce it.16.10 There is no part of the List of Issues which asks the Tribunal to determine the question whether discrimination and consequent damage and loss occurred as a result of the termination of the Claimant’s employment on 28 December 2017.16.11 The Respondent’s argument relies on the clear legal principle that there is no jurisdiction of the Tribunal to decide an issue which is not put before it (s 124 Equality Act 2010). The established case law is Chapman v Simon [1994] IRLR 124 and the subsequent 2011 case of Land Rover v Short UKEAT/0496/10/RN. It is unnecessary to cite the content of this cases in detail because the principle is established. In summary, a decision cannot be given in relation to a matter of which a claimant has not complained and without a decision there can be no remedy for any such matter.16.12 The Respondent asks us to award no loss of earnings because, it says, there was no loss or damage after 3 August 2017 which relates to any act of discrimination set out in the List of Issues. The only such act, the Respondent says, is the failure to respond ‘in time or at all’ to the Claimant’s grievance as described in paragraph 2.11.1. Our determination is as follows:-16.13 The Liability Judgment in paragraphs 10.2-15 describes the chain of events which occurred after the grievance was sent. We have found that (despite reminders) the Respondent did not respond to the Claimant’s grievance until the letter dated 21 September 2017 was sent by Ms Aitzi Ugalde and there was no meeting (despite reminders) with the Claimant until 18 October 2017 when came the unsatisfactory intervention of Ms Leona Brown, an external person. The state of limbo with no resolution of his grievance or of his employment relationship persisted for the Claimant until 28 December 2017.16.14 We have decided that paragraph 2.11.1 of the List of Issues is to be read in a slightly broader way than the bare text at first suggests. In order to give a fair and just meaning to the wording we interpret it to refer to a proper and satisfactory response to the grievance ‘in time or at all’. For the reasons given in the relevant paragraphs of the Liability Judgment (10.2- 15) we conclude that no such proper or satisfactory response was given. The Claimant did not know where he stood until 28 December 2017.16.15 We therefore find that the matters complained of by the Claimant in paragraph 2.11.1 continued over the period 3 August 2017 until 28 December 2017. During this period he suffered detriment and injury for which we have awarded the global sum of £18000. For the purposes of the uplift for unreasonable failure to comply with the relevant ACAS Code we allocate £3000 out of the total of £18000 to represent the injury to feelings caused by this act of discrimination and victimisation. It is to this sum of £3000 that we have applied the 22.5% uplift in accordance with the findings set out below.16.16 We are also convinced that during this period of limbo when he had no consistent or clear response to his grievance and remained in a state of total confusion about his job the Claimant suffered loss of earnings. He did not attend his next shift on 6 August 2017 because he was unsure whether he was still employed and would be offered his usual shifts or any shifts at all. That confusion was compounded by the various actions and omissions of the Respondent until 28 December 2017 which is the end of the calculation period, a period of 21 weeks.16.17 We award 21 weeks x £352 as the sum for past financial loss/loss of earnings= £7392.0016.18 From that total we have deducted the payments made by the Respondent to the Claimant on 31 August 2017 (£850.22) and on 30 September 2017 (£378.80) totalling £1229.0216.19 The balance is £ 6162.98 to which the 22.5% uplift is applied as calculated below.16.20 During the period in question we find it reasonable that the Claimant did not look for alternative employment or seek earnings elsewhere. He did not claim any state benefits. We repeat that he was left in a situation of confusion and uncertainty receiving no proper or satisfactory answers from the Respondent and indeed being told contradictory information, for example when Mr Kamagate intervened, again without resolution of the situation (paragraph 14 of the Liability Judgment)[17]We have not deducted any part of the earnings obtained by the Claimant from his semi pro footballing games. Prior to the acts of discrimination the last of which was on 3 August 2017 the Claimant played once or twice a week and received £130 per game. He continued to receive that income (provided he was not injured, suspended or otherwise prevented from playing by bad weather etc.) during the football season after 3 August 2017. The purpose of an award for financial loss is to put a claimant in the position he would have been but for the discriminatory act(s). Any deduction of the footballing fees received by him from the above total for wages lost would not achieve that purpose. There is no award for future loss of earnings.[19]Failure to comply with the ACAS Code of Practice relating to Disciplinary and Grievance Procedures (‘the ACAS Code’)19.1 We are satisfied that these proceedings relate to claims concerning matters to which the ACAS Code relates. We find that the respondent has failed to comply with the Code in relation to these matters and its failure in this respect was unreasonable. S. 207A TULRA requires us to consider whether it is just and equitable that the sums awarded by way of remedy should be uplifted by a percentage up to 25% by reference to any such unreasonable failure. We find that it is just and equitable to apply an uplift of 22.5%.19.2 The Claimant sent a written grievance by email dated 3 August 2017 immediately following his altercation with Mr Justin Gardner at Crow Lane. The Liability Judgment at paragraph 7.1 describes the content of the grievance.19.3 Thereafter the grievance was dealt with in a highly unsatisfactory way involving significant delays without meaningful explanation for the dilatory response. It is true to say that there was eventually a meeting of sorts attended by the Claimant, his mother (she left early) and a third party ‘Chair’ named Ms Leona Brown on 18 October 2017. No other manager from the Respondent was there and Justin Gardner did not attend nor did Ms Chorbadzhyiska.19.4 It is unnecessary to repeat in detail our findings at paragraphs 10.2 -12 of the Liability Judgment which set out the fundamentally flawed nature of this process which resulted in no resolution of the Claimant’s grievance and failed to comply with any relevant part of the ACAS Code except, as we have said, to actually schedule the one formal meeting expressed to be a ‘mediation’.19.5 Mr Kamagate’s intervention did not assist in any material way.19.6 We are therefore satisfied that a 22.5% uplift is appropriate in all the circumstances.19.7 A 22.5% uplift on the £3000 out of a total of 18000 awarded for injury to feelings is £67519.8 A 22.5% uplift on the award for past financial loss is £ 1386.67[20]Interest is awarded and the calculation is explained above.[21]In all the circumstances of this case the Claimant is entitled to a total award in the sum of £ 34,362.68 payable to him by the Respondent within 28 days.