Employment Judge C LewisIn person for claimantIn person for respondentDate 2 February 2023
JUDGMENT
[1]The claim for unfair dismissal is dismissed for lack of two year’s qualifying service.[2]The claim for unlawful deduction from wages contrary to section 13 of the Employment Rights Act 1996 succeeds. The amount owed to the Claimant by the Respondent and payable forthwith is the sum of £497.71 gross.[3]The claims of disability discrimination succeed. Remedy is to be determined at a separate remedy hearing.
REASONS
[1]By a claim form presented on 16 February 2022 following a period of early conciliation from 21 December 2021 and 17 January 2022 the Claimant brought claims for unfair dismissal, disability discrimination and arrears of pay. The Claimant was employed by D as variously a virtual legal assistant, personal assistant and office manager between 26 March 2021 and 8 December 2021. The Claimant accepts that she does not have 2 years’ qualifying service to bring a claim for unfair dismissal. The unfair dismissal claim falls to be dismissed for lack of jurisdiction.[2]The Respondent’s application for an extension of time to enter a response was refused for the reasons given. The hearing proceeded as a final hearing to determine the claims. Unfortunately, there was insufficient time to deliver judgment and go on to determine any remedy. At the end of the hearing case management orders were made for preparation for a possible remedy hearing.[3]As a consequence of failing to enter a Response in time the Respondent was only entitled to take part in the hearing to the extent permitted by the Employment Judge. D was allowed to put questions to witnesses and make submissions. Unfortunately, despite it having been clearly explained to D that as her Response had not been accepted she was not automatically entitled to be served with the document bundle and statements, she continued to berate the Claimant for failing to provide her with copies of those in advance of the hearing. D was forwarded copies of the disputed invoice and copies of the witness statements and WhatsApp exchange and give an opportunity to read those over an adjournment. The issues Preliminary issue - jurisdiction
The issues
[4]D disputed that the Claimant was an employee. She disputed there was any obligation to do any work. However, she conceded that the Claimant was a worker when she carried out any work and that the Claimant was required personally to do any work once she accepted a task.[5]I am satisfied that D was right to make those concessions and that the Claimant was a worker when she carried out work for D and that she falls within section 83(2) of the Equality Act 2010. The Tribunal therefore has jurisdiction to hear the claims under the Equality Act 2010 (EqA) and s13 of the Employment Rights Act 1996.[6]The Claimant also made reference in her claim to outstanding loan repayments on a loan that she had made to D, it was accepted that this is outside the Tribunal’s jurisdiction and the Claimant is taking steps to recover the outstanding loan in the county court. Wages claim[7]The amount claimed as an unlawful deduction from wages (s13 ERA 1996) is the sum of £497.71 for the period 1 November to 7 December 2021. Disability discrimination[8]The Claimant describes herself as suffering from fibromyalgia (chronic pain), OTSD, depression, and anxiety.[9]The disability discrimination claim is in respect of: 1. Failure to make reasonable adjustments (ss 19 &20 EqA) Insisting the Claimant be available to work at weekends and not just Monday to Friday [ET1 para39]; the reasonable adjustment sought was at least 2 consecutive days off per week to allow the Claimant to rest and recuperate. 2. Unfavourable treatment as a consequence of something arising from disability (s 15 EqA) Telling the Claimant that if she was unable to work 7 days a week the role as personal assistant would be given to someone else. 3. Harassment/direct discrimination (ss 26/13 Eq Act) Making disparaging remarks about the Claimant’s mental health between September and December 2021, including comments sent on a work WhatsApp group chat on 8 December 2021 [ET1 paras 40, 41 and 42]. Evidence[10]I heard evidence from the Claimant, and two witnesses, Ms C N and Ms N H, both of whom also worked for D and from the Claimant’s father. D was allowed to ask questions of each of the witnesses.[11]The Claimant had provided a bundle of evidence including copies of invoices and print outs of WhatsApp messages. Unpaid wages claim
Findings of fact
[12]The Claimant worked for D, who is a barrister. At the time the Claimant worked for D she operated a legal practice together with a solicitor, which D described as her Chambers, subsequently the practices’ name was changed.[13]I am satisfied on the evidence before me that on each occasion on which the Claimant carried out work for D she did so under a contract personally to do the work and that the contract was with D personally and not with D’s legal practice or Chambers.[14]The agreed hourly rate for work carried out was £19.50 per hour unless the work was required to be done within 24 hours or less of having been assigned, in which case the agreement was that the hourly rate was doubled to £39.00.[15]On 7 December 2021 the Claimant sent an invoice to D for the work she had completed on D’s behalf between 1 November and 7 December 2021. The Claimant recorded the work done for D and the time taken on the time recording program, Clockify, which generated an invoice from the details inputted by the Claimant. The invoice identifies 7 hours 40 minutes and 48 seconds as having been billed at double time, specifying the work carried out at that rate.[16]D accused the Claimant of having made up the invoice. I accept the Claimant’s evidence that she had carried out work at D’s request, she had sent the results of that work to D by email and that the invoice was a true record of her work. The invoice provided that the amount set out was due for payment on 10 December 2021, it remains unpaid. Conclusion – unlawful deduction from wages claim[17]I am satisfied that the Claimant has suffered an unlawful deduction from her wages contrary to s 13 of the Employment Rights Act 1996. I find that the outstanding amount owed for the work carried out by the Claimant between 1 November 2021 and 7 December 2021 is £497.71. Disability discrimination[18]The Claimant’s former colleagues both gave evidence about their experiences of working for D and her working practices. The Claimant’s parents also provided witness statements setting out examples of occasions when the Claimant was required to carry out work for D at short notice and outside normal working hours. Their evidence was consistent with that of the Claimant. I found the Claimant to be an honest witness and I accept her evidence. Findings of fact[19]The Claimant has fibromyalgia (chronic pain), OTSD, depression, and anxiety. The conditions are long term and had lasted 12 months by the time the Claimant started working for D. I am satisfied that those conditions had a substantial adverse effect on the Claimant’s ability to carry out normal day to day activities and would frequently leave her feeling exhausted and needing to recuperate after exertion, stress or any sustained activities. Knowledge of disability[20]I find that the Claimant made D aware of her PTSD, depression and anxiety in March 2021 before starting to work for her and told D about her fibromyalgia in June 2021 and August 2021 when she explained why she was asking not to have to work at weekends. Discrimination[21]The Claimant started working for D on 26 March 2021 as a virtual legal assistant (VLA), this involved responding to D’s invitations, sent on a WhatsApp group, to undertake specific tasks on an ad hoc basis. The role had no fixed hours and there was no obligation to provide or to accept work. On 18 April 2021 the Claimant was promoted to Head of Admin and then became D’s personal assistant with an increase in pay to £19.50 per hour. As D’s personal assistant the Claimant was expected to be available at the drop of a hat and to complete tasks in specific timeframes when given; the work was allocated via a separate WhatsApp group and not the VLA WhatsApp group, the Claimant was expected to complete the work herself and not pass it on or allocate it to a VLA and could not choose the tasks to complete.[22]After becoming D’s personal assistant the Claimant tried to inform D that she was not available to do a particular task, she received a message asking her if she was up to the job and threatening to ‘demote’ her to being a regular VLA again. The Claimant was told that if she was unable to work 7 days per week then her role would be given to someone else. The Claimant explained to D that she suffered from fibromyalgia (chronic pain) and was undergoing further investigations at hospital but was not given any leeway to allow her to work Monday to Friday and have the weekend free to recuperate.[23]I find that the Claimant was told by D that if she was not able to work 7 days a week then D would find someone to replace her as her personal assistant.[24]In August 2021 D promoted Ms N H to be a personal assistant, adding her to the Core Team WhatsApp group. Ms N H was told that she was being appointed because the Claimant was overloaded with tasks and needed assistance but found that in fact D would regularly change which of them she used as her main point of contact, swapping between them at whim up until Ms N H resigned in November 2021.[25]D expected both the Claimant and Ms N H to be available at all times and would frequently contact them outside working hours, including at the weekend, with the expectation that they would provide a response or giving them tight deadlines for the particular task.[26]D substantially reduced the Claimant’s hours from November 2021. Harassment[27]The Claimant was told by a colleague that D had made critical remarks about her work in the summer of 2021 when the Claimant had raised concerns about some of D’s actions, however there was no evidence before me that those remarks were related to the Claimant’s disabilities or made any reference to them.[28]Ms C N gave evidence that unkind things had been said about the Claimant by D but the only comment she could recall which was related to her disability was in the WhatsApp messages on 8 December 2021. This was shortly after the Claimant had stopped working for D and was no longer a member of the group.[29]The Claimant ceased working for D on 7 December 2021 following a dispute about D’s failure to repay the loan from the Claimant.[30]A printout of the WhatsApp group chat was in evidence before me, the relevant passages are at page 5 of the printout. D accepted that she sent the following WhatsApp messages on 8 December 2021 “she is a very sick young lady”, sent at 2:38:54 pm, and “best place for her I think is a mental asylum. no access to internet or wifi and restraints lol”, sent at 2:39: 29 pm. D accepted that the comments were about the Claimant and that they were offensive. She told the Claimant and the Tribunal that she was upset at the time she sent them. Relevant law Relevant Law Time Limits & Continuing Acts
Relevant Law
[31]By s123 Equality Act 2010, complaints of discrimination in relation to employment may not be brought after the end of 1.1. the period of three months starting with the date of the act to which the complaint relates or 1.2. such other period as the Employment Tribunal thinks just and equitable.[32]By s123(3) EqA conduct extending over a period is treated to be done at the end of the period. Failure to do something is to be treated as occurring when the person in question decided on it.[33]In Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530, the Court of Appeal held that, in cases involving numerous allegations of discriminatory acts or omissions, it is not necessary for an applicant to establish the existence of some 'policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken' in order to establish a continuing act. The Claimant must show that the incidents are linked to each other, and that they are evidence of a 'continuing discriminatory state of affairs'. This will constitute 'an act extending over a period'. The question is whether there is “an act extending over a period,” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed'.' Paragraph [52] of the judgment. Section 15 - Discrimination arising from disability[34]The correct approach to determining a claim under s.15 was summarised by Simler J in Pnaiser v NHS England [2016] IRLR 170 at 31. In essence, the Tribunal must decide:(1) Whether there was unfavourable treatment.(2) What the reason for that unfavourable treatment was. The focus is on the mind of the employer at this point. If there is more than one reason, it will be sufficient to establish causation that something has a “significant influence”. In deciding this, the employer’s motives are not relevant.(3) Whether that reason was “something arising in consequence of disability”. This is a looser test compared to “caused by”, as emphasised by Simler J in Sheikholeslami v Edinburgh University [2018] IRLR 1090 at 66.(4) Whether the reason for the treatment was the “something arising” is an objective test and does not depend on the thought process of the employer. Nor is it necessary for the employer to know that the “something arising” arises in consequence of the disability, see City of York v Grosset [2018] ICR 1492 at 38-41.(5) It does not necessarily matter which order the Tribunal answers these questions in, but they all need to be addressed.[35]The Tribunal must address two separate questions of causation:(i) did the “something” arise from C’s disability, and(ii) was that “something” the reason for C’s unfavourable treatment. See Basildon v Thurrock NHS Trust v Weerasinghe [2016] ICR 305 at 26. The burden is on the Claimant to show the “something arising”, since it is a fact necessary for the Tribunal to conclude that there has been a contravention of the Equality Act 2010. Objective justification[36]The proportionality test is essentially a balancing exercise. It was summarised in the context of indirect discrimination, by reference to the leading EU case of Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317, by Mummery LJ in R. (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 at [151]: “… the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.”[37]Sedley LJ in Allonby v Accrington and Rossendale College [2001] ICR 1189 at 29 described the exercise as follows: “… at the minimum a critical evaluation of whether the college’s reasons demonstrated a real need to dismiss the applicant; if there was such a need, consideration of the seriousness of the disparate impact of the dismissal on women including the applicant; and an evaluation of whether the former were sufficient to outweigh the latter.”[38]The Supreme Court confirmed in Homer v Chief Constable West Yorkshire Police [2012] ICR 704 at [22] that “to be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.”[39]Pill LJ in Hardy & Hansons Plc v Lax [2005] ICR 1565 at [32]: “It must be objectively justifiable (Barry v Midland Bank plc [1999] ICR 859) and I accept that the word “necessary” used in Bilka-Kaufaus [1987] ICR 110 is to be qualified by the word “reasonably”. That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word “reasonably” reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary.”[40]In Hensman v Ministry of Defence [2014] UKEAT/0067/14/DM, Singh J referred to the above passage and stressed at [44] that in applying this approach the Tribunal, “must have regard to the business needs of the employer.”[41]In considering whether there are alternative non-discriminatory means of achieving the legitimate aim, the legitimate aim itself must be the focus; a non-discriminatory alternative will not defeat a defence of justification if it defeats the legitimate aim, see Chief Constable West Midlands v Blackburn [2009] IRLR 135 at [25]-[26]. Sections 20-21 - Failure to make reasonable adjustments[42]The correct approach for the Tribunal in determining a reasonable adjustments claim is set out in Environment Agency v Rowan [2008] ICR 218 at 27 (the reference to sections are to sections of the Disability Discrimination Act 1995 “DDA”): “In our opinion an employment tribunal considering a claim that an employer has discriminated against an employee pursuant to section 3A(2) of the Act by failing to comply with the section 4A duty must identify:(a) the provision, criterion or practice applied by or on behalf of an employer, or(b) the physical feature of premises occupied by the employer,(c) the identity of non-disabled comparators (where appropriate) and(d) the nature and extent of the substantial disadvantage suffered by the Claimant. … Unless the employment tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage.”[43]The focus of the Tribunal is on practical outcomes, this was confirmed by Langstaff P in Royal Bank of Scotland v Ashton [2011] ICR 632 at 24: “… so far as reasonable adjustment is concerned, the focus of the tribunal is, and both advocates before us agree, an objective one. The focus is upon the practical result of the measures which can be taken. It is not – and it is an error – for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer’s thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reason.” Substantial disadvantage[44]The substantial disadvantage applies in respect of the disabled person compared to persons who are not disabled. The EAT has made clear that “the function of the provision, criterion or practice within section 20(3) is to identify what it is about the employer’s operation which causes disadvantage to the employee with the disability” (see General Dynamics Information Technology Ltd v Carranza [2015] ICR 169 at 39). As observed by the EAT in Sheikholeslami v Edinburgh University [2018] IRLR 1090 at [48]: “The purpose of the comparison exercise with people who are not disabled is to test whether the PCP has the effect of producing the relevant disadvantage as between those who are and those who are not disabled, and whether what causes the disadvantage is the PCP.”[45]In assessing substantial disadvantage, the Tribunal needs to identify what it is about the particular disability that gives rise to specific substantial disadvantage. As observed by the EAT in Chief Constable West Midlands Police v Gardner [2011] UKEAT/0174/11/DA at 53: “There may be many cases in which it is obvious what the nature of the substantial disadvantage is, and why someone with the disability in question would inevitably suffer it. … But there are also cases, of which this is one, in which in our view simply to identify a disability as being a general condition – such as “a knee condition” – does not enable any party, and more particularly a court of review, to identify the process of reasoning which leads from that to the identification of a substantial disadvantage, and an adjustment which it is reasonable to have to make to avoid that disadvantage. The conclusion remains unexplained by any description of what it is that the Claimant can and cannot do in consequence of his disability, and there is therefore no information as to the nature of any step or steps which might be taken in order to prevent that particular disadvantage. The words of Rowan are clear and correct. They may however insufficiently emphasise the need to show, or to understand, what it is about a disability that gives rise to the substantial disadvantage, and therefore what it is that requires to be remedied by adjustment. Without knowing that, no assessment of what is, or is not, reasonable by way of adjustment can properly be made.” Reasonableness of adjustments[46]In Smith v Churchill Stairlifts Plc [2006] ICR 524, CA the Court of Appeal confirmed that the test of reasonableness is an objective one. Paragraphs 6.28 of the EHRC Code of Practice on Employment sets out some of the factors (previously set out in the DDA) which may be taken into account when assessing what is a reasonable step for an employer to have to take. s.26 Harassment related to disability[47]In Richmond Pharmacology v Dhaliwal [2009] ICR 724, [2009] IRLR 336 EAT, Underhill P (as he then was) presiding, stated that the approach that the Tribunal ought to take in determining a claim of harassment should be broadly the same, regardless of the particular form of discrimination in issue and that, in each context, 'harassment' is defined in a way that focuses on three elements:(a) unwanted conduct;(b) having the purpose or effect of either: (i) violating the Claimant's dignity; or (ii) creating an adverse environment for him/her;(c) on the prohibited grounds. (Confirmed by Underhill LJ in the Court of Appeal in Pemberton v Inwood [2018] ICR 1291 at 88 see below).[48]In each case, there is a proviso that means that, even if the conduct has had the proscribed effect, it must also be reasonable that it did so. There is a subjective element '… having regard to … the perception of that other person …' ultimately the proviso can deal with cases of unreasonable proneness to take offence. Although 'purpose' is not determinative, it can be a factor: 'the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt' (Dhaliwal at 15). Ultimately, this is all 'quintessentially a matter for the factual assessment of the tribunal'. Related to[49]Whether conduct is related to a protected characteristic is a question to be judged by the Tribunal by reference to all of the evidence, not simply the perception of a Claimant; the knowledge or perception of the Claimant’s protected characteristic by the person making the comment is also relevant (see Hartley v FCO Services [2016] UKEAT/0033/15/LA at 23-25).[50]With regard to the conduct of the particular individual or individuals in question, the employment tribunal has to apply an objective test in determining whether it was 'related to' the protected characteristic in issue; the intention of the actors concerned might form part of the relevant circumstances but will not be determinative of the question the tribunal has to answer. Section 13 – direct discrimination[51]In order to establish a claim based on direct disability discrimination under EqA 2010, s 13, a Claimant must show:(a) treatment that is less favourable than that which has or would have been accorded to others without the Claimant’s disability;(b) that such treatment has been accorded to the Claimant because of his or her disability; and(c) that the comparison is such that the relevant circumstances in the one case are the same (or not materially different) than in the other (EqA 2010, s 23).[52]The correct approach to establish causation for unlawful discrimination is to ask whether the protected characteristic was the effective and predominant cause, ie to ask 'why' the disabled person was treated as he or she was. This test is set out in Nagarajan v London Regional Transport [1999] IRLR 572 (HL); Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, [2001] IRLR 830 and Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] IRLR 285, all of which were confirmed in Amnesty International v Ahmed [2009] ICR 1450. Post termination discrimination[53]Section 108 of the Equality act 2010 makes it unlawful, in respect of former workers to subject an individual to discrimination or harassment 'where the discrimination arises out of and is closely connected to' the relationship that has ended. Harassment or detriment[54]Section 212 (1) of the Equality Act 2010 provides that “detriment” does not include conduct which amounts to harassment. This interpretation provision prevents double recovery for conduct which would otherwise amount to a detriment, for example as a result of direct discrimination, where the same conduct is found to amount to harassment. Conclusions Issue 1 - Failure to make reasonable adjustments (ss 19 &20 EqA) Insisting the Claimant be available to work at weekends and not just Monday to Friday [ET1 para39]; the reasonable adjustment sought was at least 2 consecutive days off per week to allow the Claimant to rest and recuperate.
Conclusions
[56]I have found that the Claimant was required to be available and to carry out work for D seven days a week, including outside working hours and at the weekend. I am satisfied that the Claimant asked not to be given work at the weekend and explained that she needed this time to recuperate as a result of her disability but that D continued to require her to carry out work at weekends.[57]I am satisfied that it would have been reasonable for D to have adjusted the Claimant’s workload so as to allow her two clear days break from work. I find that there was a failure to make a reasonable adjustment in this respect contrary to section 21 of the Equality Act 2010. Issue 2 - Unfavourable treatment as a consequence of something arising from disability (s 15 EqA) Telling the Claimant that if she was unable to work 7 days a week the role as personal assistant would be given to someone else.[58]I have found that the Claimant was told by D that if she was unable to work 7 days a week the role as personal assistant would be given to someone else.[59]I am satisfied that the reason that the Claimant was unable to work 7 days a week was as a result of something arising in consequence of her disability; the effects of the Claimant‘s fibromyalgia meant that she needed to have two clear days a week to recuperate.[60]I am satisfied that the remark amounts to unfavorable treatment and left the Claimant feeling anxious that her role would be taken away from her. No legitimate aim was put forward before me. Whilst it might be a legitimate aim to have the work completed at a time of D’s choosing, I find that it would have been reasonable for D to have given any work which it was necessary to complete at the weekend to someone else, I do not find it proportionate to threaten the Claimant with her role as personal assistant being taken away from her altogether.[61]The claim under section 15 succeeds. Issue 3 - Harassment/direct discrimination (ss 26/13 Eq Act) Making disparaging remarks about the Claimant’s mental health between September and December 2021, including comments sent on a work WhatsApp group chat on 8 December 2021 [ET1 paras 40, 41 and 42].[62]The only evidence before me of any remarks related to the Claimant’s disabilities are the comments in the WhatsApp texts on 8 December 2021, which the Claimant believes were a reference to her mental health.[63]I am satisfied that the comments made by D in the WhatsApp group on 8 December 2021 were related to the Claimant’s mental health. The Claimant was told about the comments by her former colleague shortly after they were made and the contents of the WhatsApp chat was shared with her. I am also satisfied that she found the comments to be offensive and that it was reasonable for her to do so.[64]Although the comments were made after the Claimant had resigned I find that they were made in a work WhatsApp group, to the Claimant’s former colleagues and that they arose out of and were closely connected to her former working relationship.[65]I find that the Claimant was harassed by D contrary to section 26 of the Equality Act 2010 Direct discrimination section 13[66]As a result of s 212(1) of the Equality Act 2010, having found the comments to be harassment under s 26, I do not go on to make a finding as to whether the same comments could also amount to direct discrimination under s 13.
Remedy
[67]A remedy hearing is to be listed and the parties will be notified of the date in a separate letter accompanying this judgment.[68]Case management orders for a possible remedy hearing were made at the hearing. Those orders have been sent to the parties separately. REMEDY JUDGMENT The Claimant’s claim for disability discrimination having succeeded in the terms set out in the Reserved Judgment on liability sent to the parties on 6 February 2023, in accordance with s 124 of the Equality Act 2010the Respondent is ordered to pay the following compensation to the Claimant forthwith.
Remedy
[1]Loss of earnings in the sum of £60,416.56, calculated as follows: Losses to date 1.1 Loss of income from 8 December 2021 to 24 March 2023 = £16,121.22(i)8 December 2021 to 24 July 2022, 33 weeks at £130.58 = £4,309.14;(ii)25 July 2022 to 24 March 2023, 34 weeks at £340.73 net per week = £11,812.08 net. Future loss 1.2. Loss of earnings for a period of 2 and a half years at £340.73 net per week (annual net salary of £17,718.16) = £44,295.34 Total loss of income, past and future loss = £60,415.56.[2]Injury to feelings including personal injury in the sum of £90,000.00 Case Number: 3200546/2022[3]Interest in the sum of £4996.90 awarded under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. Calculated as follows, the current rate of interest on awards being 8%:3.1 Interest on loss of income in the sum of £79.15 The calculation of interest is from the midpoint in respect of the award for loss of income. Lost income from the 8 December 2021 to the date of calculation, 24 March 2023 being a period of 448 days. The midpoint is at day 224. The interest calculation is: £16,121.22 x 8% = £128.98, divided by 365 = 0.35p per day x 224 days =£79.153.2 Interest on injury to feelings in the sum of £4,917.75. Interest on the award for injury to feelings is usually awarded from the date of the discriminatory act. The discrimination commenced on 18 April 2021, it continued through the Claimant’s employment. I have decided that it would be unjust to award interest for the entire period from April 2021 to the date of this hearing and applying Regulation 6(3) of the Regulations I award interest on the injury to feelings compensation from the 18 July 2022 which is the date on which the effect of the discrimination caused the Claimant to develop a Functional Neurological Disorder. The calculation is therefore as follows: 18 July 2022 to 24 March 2023, being a period of 249 days. Interest on £90,000 at 8% is a yearly sum of £7,200 divided by 365 days equals £19.75 per day, x 249 days = £4,917.75.[4]The grand total of the award of compensation is the sum of £155,413.46 (1. loss of income + 2. injury to feeling + 3. interest) which is payable by the Respondent to the Claimant forthwith. JUDGMENT having been sent to the parties on 31 March 2023 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013.
Remedy
[1]The judgment was delivered orally at the hearing on 24 March 2023. The Respondent did not attend the hearing but has requested written reasons by email sent on 1 April 2023.[2]The Tribunal heard oral evidence from the Claimant and from F and considered the Claimant’s Schedule of Loss as well as the medical evidence provided by the Claimant.[3]The Respondent who had not entered an appearance in these proceedings and did not attend the Remedy Hearing although she was present and took part in the Liability Hearing to the extent permitted by the Employment Judge which included cross examining the Claimant and her witnesses and making submissions to the Tribunal. The Respondent was served with notification of the Remedy Hearing by email and by post to the addresses set out on the Notice of the Remedy Hearing dated 11 February 2023. The date and venue for the Remedy Hearing was also sent out in the Case of Management Orders sent to the Claimant and D on 6 February 2023 at the same time as the Employment Tribunal’s Judgment on Liability.[4]D responded to the Tribunal’s email on 21 February 2023 indicating that she intended to appeal the Liability Judgment.[5]On 22 February 2023 the Claimant emailed the Tribunal and D a Schedule of Loss. On 15 March 2023 D was copied into correspondence to the Claimant from the Tribunal in response to the Claimant’s request for information as to the situation on the understanding that D was possibly going to appeal the liability judgment. The Tribunal’s response dated 15 March 2023 informed the Claimant (copied to the Respondent) that appeals are dealt with by the Employment Appeal Tribunal and not the Employment Tribunal, and that appeals are not suspensory meaning that the Remedy Hearing would proceed on 24 March 2023 as listed. D responded by requesting the Schedule of Loss and medical evidence.[6]The Claimant made representations before and at the liability hearing in respect of not wishing to send copies of her private medical information to the Respondent, D, for a number of reasons, including the following: the Claimant was concerned as to D’s prior conduct, she had, in the Claimant’s words, been harassing her with aggressive emails, and the Claimant was concerned that the Respondent had made various representations to the Tribunal including offering to pay the Claimant’s wasted cost of a morning’s hearing due to her late arrival at the Tribunal but had failed to keep her word, the Claimant was concerned that D would not keep her sensitive medical information confidential and would use it for other purposes including possibly to further disparage or “harass” her. The Employment Judge made a case management order at the end of the liability hearing on 31 October 2022 that the Schedule of Loss be sent to the Respondent but that the medical report be sent to the Tribunal for the Judge to consider whether to direct that it be sent on to the Respondent. On receipt of the medical evidence the Judge considered whether it should be sent to the Respondent and decided it should not for the following reasons: Ms El- Sobky had not entered a response in time which meant that whilst entitled to receive notice of any hearing she is only able to participate in any hearing to the extent permitted by the Employment Judge, the medical evidence was of a personal and sensitive nature and there was a reasonable basis for the Claimant’s concerns, including that the Respondent had previously made disparaging comments on a WhatsApp group about the Claimant’s disability, such that in the circumstances it was proportionate and appropriate for D to be provided with the opportunity to consider the evidence at the Tribunal but not to be sent copies in advance or to be permitted to take copies away with her.[7]In the event, D did not attend the Remedy Hearing, the Judge proceeded with the hearing and was satisfied that she had been provided with notice of the hearing and was aware that it was taking place.[8]The following findings of fact were made on the evidence before the Judge. Personal injury[9]The Claimant suffered previously with poor mental health and Post Traumatic Stress Disorder, she refers to this in her witness statement at paragraph 2. However, I am satisfied from Dr Umoh’s notes [referred to below] that the Respondent’s discriminatory treatment and the resulting litigation have exacerbated that condition and have led to the reoccurrence of the Claimant’s symptoms. This has led to a period of depression and suicidal thoughts and an increase in the Claimant’s medication. I refer to the medical reports produced by the Claimant for their full description of the effects upon her.[10]I heard evidence from the Claimant and from F, a friend who has known the Claimant for some time and has previously supported her through her Fibromyalgia symptoms. I am satisfied having heard and accepted their evidence that in the period prior to her employment by the Respondent, D, the Claimant was coping with her Fibromyalgia and her Post Traumatic Stress Disorder was not affecting her day-to-day life at that time. The Claimant was able to go to the gym two times a week, go out for meals, spend time with friends, she was able to make journeys on public transport on her own and was able to undertake work and studies at university. She was able to do all of this if she was allowed to work at her own pace and have rest breaks to recover her energy. I refer back to my findings the Liability Judgment in respect of the impact of the Claimant’s condition on her day-to-day activities and the steps she took to manage her condition. Functional Neurological Disorder and PTSD[11]I am satisfied that as a result of the impact of the discriminatory treatment the Claimant received from D these coping strategies broke down, her mental health also broke down and she suffered the reoccurrence of the symptoms of Post-Traumatic Stress Disorder such that the impact on the Claimant goes beyond normal injury to feelings and has resulted in a personal injury.[12]I am satisfied from the medical evidence before me that the Claimant has developed Functional Neurological Disorder. The symptoms of Functional Neurological Disorder developed in July 2022 when the Claimant collapsed, had multiple seizures on 19 July and was hospitalised. The seizures continue daily; she has also developed speech and other difficulties.[13]Following a clinic on 22 November 2022 Dr Hayer Mohammed, speciality Doctor in Neurology at Basildon and Thurrock University Hospitals NHS Foundation Trust had referred the Claimant to Neuro Psychology/Neurology at UCLH describing her symptoms as appearing to be non-organic and pointing towards Functional Neurological Disorder. The change in symptoms since the July collapse had a significant effect on the Claimant’s mobility and speech and significantly impacted on the Claimant’s academic plans and also caused her to lose out on training posts.[14]On 27 November 2022 Doctor Mohammed referred the Claimant, to Dr Gary Price a specialist in FND and neuropsychiatry at UCLH, that referral has been accepted by the neuropsychiatry team (see email confirmation dated 14 March 2023) and she is waiting to see the Neuro Psychiatrist at UCLH in respect of Functional Neurological Disorder. Dr Mohammed also requested her GP to make referrals for speech therapy and a mental health review.[15]The Claimant’s medical notes also reflect that she saw Dr Umoh, Consultant Psychiatrist at Essex Partnership University NHS Foundation Trust, at the Knightswick Clinic on 4 January 2023 for a review at which he made changes to her prescribed medication and at that date her notes record that the Claimant had seen two neurologists and both came to the same conclusion [FND] and the neurologist from Basildon [Dr Mohammed] had referred to UCL. On 30 January 2023 Dr Umoh diagnosed Post-Traumatic Stress Disorder noting that at that date the Claimant was too unwell to participate in psychological therapy. In his visit summary he notes that the Claimant’s physical condition had changed so much since he last saw her that it was hard to recognise her as the same patient that he had seen in the previous May; he set out the symptoms experienced to July and described a complete neurological collapse, he observed that the litigation against the Claimant’s employer was an important context and that anxiety was a significant factor in causing her collapse.[16]Since her health collapsed in July 2022 the Claimant has been completely unable to work, she is not able to concentrate on anything for any length of time and is unable to go out alone; she has regular seizures triggered by stress, her speech has been affected, as have her facial muscles in particular her eyelids and she is unable to walk unaided and uses crutches or a stick.[17]I am satisfied that the Respondent caused or significantly contributed to the development of the recent symptoms and the development of the Functional Neurological Disorder, such that it is not possible to separate out the discriminatory treatment from any other cause or contribution. I am satisfied that the discriminatory treatment is an indivisible cause of the injury in the sense set out in Hatton & Sutherland [2002] ICR 613. I therefore find that the Respondent is liable for the entirety of the injury in respect of the Functional Neurological Disorder. That is the basis on which I therefore assess the compensation to which the Claimant is entitled.[18]The Claimant was somebody who had a pre-existing disability, Fibromyalgia and Chronic Pain and a prior history of PTSD. However, the new symptoms have proved catastrophic to her life and her career plans have been put on hold. The Claimant’s losses[19]I find that but for the complete breakdown in her health as a result of the discriminatory treatment the Claimant would have continued to work part-time earning commission for the sale of beauty products, as she had done throughout her period of employment with D; and she would also have continued assisting as a Student Ambassador at her University, both of which she had ben able to fit around her work for the Respondent. Past loss of income (to date) Loss of income for the period of December 2021 to July 2022[20]I find that the Claimant’s loss of income for the period from the termination of her employment with the Respondent in December 2021 until her health broke down in July 2022 is £4,309.14, being a loss of £130.58 per week. This figure is taken from the Claimant’s invoices over the relevant period. This figure is below the lower earnings limit and did not trigger tax and national insurance payments. The Claimant applied for a full-time permanent job in July 2022. She was successful in her application and was due to start work on a salary of £24,000 per annum. She had decided to take up this position as she had been unable to continue with her studies toward the Bar due to her financial difficulties as a result of losing her job with the Respondent. I accept the Claimant’s evidence and find in all likelihood she would have worked in this job for two to three years whilst she saved money for Bar School. The job was ideally located for her in that it was based in Canary Wharf, and her father would have been able to give her a lift to and from work. I am satisfied that since her health collapsed in July 2022 she is now completely unable to work. Loss of income to date of remedy hearing 24 March 2023[21]I have awarded the sum of £4,309.14, in respect of the Claimant’s loss of income to date, calculated as 33 weeks at £130.58 from 8 December 2021 to 25 July 2022; plus loss of £11,812.08 net from 25 July 2022 when the Claimant would have taken up her new role to date of this hearing, 24 March 2023, being 8 months salary at £1,476.51 net per month. Total loss of income to date of hearing = £16,121.22. Future loss[22]The Claimant had put in evidence a booklet on FND which provides relevant information to people with a diagnosis. The rehabilitation period for her condition is likely to take approximately 18 months. There is no guarantee however that she will recover her function to previous levels. The Claimant has been told that the current waiting list to be seen by the Consultant in the relevant department is 6 - 12 months. I accept her evidence that given the current situation with NHS waiting lists, which are increasing rather than decreasing, that it is likely that the wait will be closer to 12 months rather than 6 months.[23]In assessing the Claimant’s losses into the future I find that her losses will continue for two and a half years into the future, based on one year on a waiting list and an 18 month rehabilitation period. I have therefore awarded lost income for the period of two and a half years in the sum of £1,476.51 per month x 30 months = £44,295.34.[24]I have taken into account the effect of accelerated receipt in deciding on the length of the period for which I have compensated the Claimant, which I consider to be erring on the conservative side of the likely duration of her losses. Injury to feelings and personal injury[25]There is considerable overlap in this case between the personal injury and injury to feelings. The Claimant in her Schedule of Loss has sought £25,000 which is in the middleVento band. When asked to clarify any claim for personal injury claim she told me that she did not know what to ask for in respect of personal injury. Having found that the Claimant has suffered a personal injury as a result of the Respondent’s discriminatory treatment I am satisfied that in order to put the Claimant back into the position she would have been in but for the discriminatory conduct it is necessary to compensate her for that injury.[26]I considered the JSB guidelines in respect of similar conditions including head and brain injury. I consider that the nearest or closest equivalent condition is epilepsy which has similar effects on the individual; FND is not treatable by medication however but epilepsy is deemed to be life long, as is the need to take medication. In respect of the extent of the injury I am satisfied that the injury in this case has had a severe effect on the Claimant and has curtailed her social life and significantly impacted her day to day activities. The Claimant sleeps during the day to recover from frequent seizures, she is fully dependant on her parents and has to live at home, she is unable to go out alone.[27]The JSB guidelines given for a moderate brain injury, distinguish between three bands, i, ii and iii: the lowest, iii being for moderate injury with a small risk of epilepsy, described as cases in which concentration and memory are affected, the ability to work is reduced, there is a small risk of epilepsy and any dependence on others is very limited. There may nonetheless be vestibular symptoms and an effect on senses: the range is from £43,060 to £90,720. The middle band ii, under moderate brain injury, ranges from £90,720 to £150,110 and reflects cases in which there is a moderate to modest intellectual deficit, the ability to work is greatly reduced if not removed, and there is some risk of epilepsy. Whilst I consider that overall the Claimant’s injury is less severe than those falling within the middle band of the moderate brain and head injury awards described in the JSB guidelines, her injury does contain some elements of the effects described there. I consider that the injury described in the lower band are less severe than the Claimant’s injury, for instance, the Claimant experiences multiple seizures daily, is now completely dependent on her parents and is currently unable to work at all.[28]I am satisfied that the JSB guidelines for awards under Brain and Head Injury (B) Epilepsy are those that are closest in their effects on the claimant. The awards for Petit Mal range from £54,000 to £131,000, the factors affecting the level of award within those brackets include, whether attacks are successfully controlled by medication and the extent to which the need for medication is likely to persist; the effect on working or social life; the existence of associated behavioural problems, and the prognosis.[29]I also considered the JSB guidelines on PTSD and consider that the Claimant falls within the Moderately Severe band which ranges from £23,150 to £59, 850, which reflects cases where the effects are likely to cause significant disability for the foreseeable future but where the prognosis is that there will be some recovery with professional help; I noted that the majority of awards in this category are between £28,760 and £37,120. I also noted that there is an overlap between the PTSD and the depression suffered by the Claimant.[30]I find that absent the personal injury an award for injury to feelings would have been appropriate, however, in this case there is considerable overlap between the personal injury and an injury to feelings award and I make no separate award for injury to feelings.[31]I am satisfied that the appropriate award for the injury caused to the Claimant is an award for personal injury in the sum of £90,000 to reflect both the Functional Neurological Disorder and the recurrence of the PTSD and the Claimant’s depressive symptoms. In reaching this decision I have taken into account the JSB guidelines in respect of PTSD, moderate head and brain injury and epilepsy. I have taken into consideration the overlap or combined effects of FND and PTSD and discounted the award to reflect that the Respondent’s discriminatory treatment caused a recurrence of the Claimant’s PTSD, rather than being the original cause. I have also stepped back to consider the overall amount to ensure that I am not overcompensating the Claimant. This is also why I have not made a separate award for injury to feelings. Interest[32]I am satisfied that it is just to award interest at the usual rate which is currently 8%. On injury to feelings, the award is normally from the date of discrimination and for all other awards interest is awarded from the ‘mid-point’ date, halfway between the date of the act of discrimination and the date of calculation of the award. However, because in this case the award is to reflect the catastrophic impact on the Claimant’s health causing a personal injury suffered by the Claimant from 18 July 2022, I am satisfied that the interest should be calculated from that date – see MOD v Cannock & ors [1994] ICR 918, EAT where a serious injustice would otherwise be caused it is appropriate to adjust the date for calculation of interest. The period of the award is from 18 July 2022 to date which is 249 days at 8% on £90,000, giving the daily rate of £19.75, the total interest on the personal injury award is the sum of £4,917.75.[33]Interest on the financial loss is accrued from the mid-point from the date of the termination of employment which was 8 December 2021 to the date of hearing 24 March 2023 being a period of 224 days, on the total sum of losses to date which is £16,121.22 at 8% = £128.19 per year, with a daily rate of £0.35 (x 224 days) = £79.15.[34]The total award of interest is therefore £4,996.90.