Mrs S. JearyMs J. HouzerIn person for claimantDate 7 April 2025
JUDGMENT
ON REMEDY The judgment of the Tribunal on remedy is that: -[1]the Claimant is entitled to an award for injury to feelings of £20,000; 2. interest is awarded on that sum in the amount of £3,397.26; 3. because those sums relate to pre-termination acts of discrimination, they are tax-free;[4]in respect of loss of earnings, the gross sum, from which the award falls to be calculated, is £9,042.05; 5. the Claimant is entitled to interest on the net award for loss of earnings; the award for loss of earnings must then be grossed up to offset any tax liability the Claimant will incur;[6]the parties shall cooperate with each other to agree(a) the net equivalent of the gross sum of £9,042.05;(b) the amount of interest to be added to the net sum; and(c) the grossed-up amount which the Tribunal should award based on (b);[7]they shall notify the Tribunal by no later than 28 days from the date on which this judgment is sent to the parties as to what those figures are; the Tribunal will then issue a supplementary judgment recording them; 8. the Tribunal makes no award for aggravated damages; 9. the Claimant’s application for a preparation time order is refused.
REASONS
[1]By its judgment on liability, the Tribunal concluded as follows in relation to the claims of harassment related to disability: 1.1. that by calling Claimant to a performance review meeting on 15 December 2022, the Respondent singled him out (J128); 1.2. the Respondent gave him no time to prepare, giving inadequate notice (J129); 1.3. Ms Sanders subjected the Claimant to criticism about his performance and told him there was nothing else the Respondent could do, which he correctly interpreted as meaning that his employment was going to be terminated (J131); 1.4. the Respondent’s purpose in holding the meeting was to discuss terminating his employment because they had decided he was not up to the job. They went about it in an inappropriate way which reflected their lack of understanding as to how they might need to adjust their processes when dealing with an employee with significant mental health difficulties (J132); 1.5. the Claimant did not feel intimidated, but he did feel humiliated; he said as much during his outburst (J133); 1.6. it was reasonable for the Respondent’s treatment to have that effect; the Respondent’s handling of the meetings was extremely insensitive; being told that you are not up to the job in unvarnished language and without prior warning would be humiliating for an employee in good mental health; not giving notice of the meeting compounded the shock (J134).[2]In relation to the reasonable adjustments claim, we concluded as follows: 2.1. the requirement to meet targets put the Claimant at a substantial disadvantage by comparison with colleagues without his disability (J146); 2.2. the Claimant was experiencing a significant downturn in his mental health and was not performing at his best (J147); 2.3. he told the Respondent at the meeting on 6 December 2024 that he was struggling and needed help (J148); 2.4. it would have been a reasonable adjustment to lower monthly sales targets and/or to give the Claimant more time to meet them (J150); 2.5. the Claimant was committed to his work and wanted to succeed; reducing his targets would have taken pressure off him, giving him the breathing space to get back on track (J151); 2.6. the business was clearly thriving, and expanded shortly after the material period, suggested that it could have accommodated a lowered target, at least for a period (J152).[3]The Tribunal also criticised the Claimant for his behaviour, both at the meeting and after it: 3.1. he flew into a rage, which we found was not a panic attack, but an outburst of anger; his conduct was unacceptable and reprehensible (J89); 3.2. he repeatedly subjected Mr Brandon to a volley of obscene abuse (J87); 3.3. his behaviour was extremely aggressive (J92); 3.4. the Claimant created a WhatsApp group including members of the Respondent’s staff, in which he criticised Mr Brandon; that was unprofessional and inappropriate (J95). The remedy hearing[4]At the remedy hearing we heard evidence from the Claimant and from his partner, Jilali Morabit; we also read statements in support of the Claimant’s case from Kayleigh Reardon and Grace Lampard, although neither of them attended to give oral evidence; on behalf of the Respondent, we heard from Josh Brandon.[5]There was a schedule of loss from the Claimant and a counter schedule from the Respondent.[6]We had a bundle of documents of more than 550 pages; this was disproportionate for a hearing listed for one day. We told the parties we would only look at the documents which they referred to in their statements; they agreed.[7]Evidence and submissions on remedy took the whole day; the Tribunal reserved its judgment and deliberated in chambers on a separate day. Because there was not enough time to hear the Claimant’s application for a preparation time order, we invited the parties to send in written submissions, which they did. The law Compensation for acts of discrimination[8]Compensation for discrimination is assessed on tortious principles (ss.119(2) and s.124(6) Equality Act 2010 (‘EqA’)). The aim is to put the Claimant in the position, so far as is reasonable, that he would have been in, had the tort not occurred (Ministry of Defence v Wheeler [1998] IRLR 23). The sum is not determined by what the Tribunal considers just and equitable in the circumstances, as would be the case for an unfair dismissal award (Hurley v Mustoe (No 2) [1983] ICR 422).[9]In assessing compensation for discriminatory acts, it is necessary to ask what would have occurred had there been no unlawful discrimination. For example, in a dismissal case, if there were a chance that dismissal would have occurred in any event, even had there been no discrimination, then in the normal way that must be factored into the calculation of loss (Chagger v Abbey National PLC and another [2010] IRLR 47). Mitigation[10]The Claimant is required to mitigate the loss he suffered as a result of the unlawful act. He is expected to search for other work and will not recover losses beyond a date by which the Tribunal concludes he ought reasonably to have been able to find new employment at a similar rate of pay.[11]The burden is on the Respondent to prove a failure to mitigate (Fyfe v Scientific Furnishing Ltd [1989] IRLR 331). If the Claimant has failed to take a reasonable step, the Respondent must show that any such failure was unreasonable (Wright v Silverline Car Caledonia Ltd, UKEATS/0008/16). The question of reasonableness is to be determined by the Tribunal itself; the Claimant’s perception is only one of the factors to be taken into account. Injury to feelings[12]The matters compensated for by an injury to feelings award include subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression (Vento v Chief Constable of West Yorkshire Police (No2) [2003] IRLR 102).[13]In Vento the Court of Appeal gave the following guidance as to the level of awards for injury to feelings: ‘Employment Tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury. i. The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. … Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. ii. The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. iii. Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings. There is, of course, within each band considerable flexibility, allowing Tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.’[14]The bands were increased by the 2017 Presidential Guidance on awards for injury to feelings for cases issues on or after 11 September 2017. The bands have since been increased to reflect inflation, recently by way of Presidential Guidance. The Claimant’s case having been presented on 1 April 2023, the relevant Guidance1 provides in respect of cases presented on or after 6 April 2022: 14.1. a lower band of £990 to £9,900 (less serious cases); 14.2. a middle band of £9,900 to £29,600 (cases that do not merit an award in the upper band); and 14.3. an upper band of £29,600 to £49,300 (the most serious cases), 14.4. with the most exceptional cases capable of exceeding £49,300.[15]Injury to feelings awards are compensatory and should be just to both parties. They should compensate fully without punishing the discriminator. Feelings of indignation at the discriminator’s conduct should not be allowed to inflate the award. Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation: society has condemned discrimination, and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could be seen as the way to untaxed riches (Prison Service v Johnson [1997] IRLR 162, EAT at [27]).[16]The focus of the Tribunal’s assessment must be on the impact of the discrimination on the individual concerned; unlawful discrimination may affect different individuals differently (Essa v Lang [2004] IRLR 313).[17]A Polkey-type deduction should not be applied to an award for injury to feelings (O’Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615).[18]Awards for injury to feelings unrelated to termination of employment are tax-free, as are awards related to the termination of employment prior to 6 April 2018 (Moorthy v HMRC [2018] EWCA Civ. 847). Aggravated damages 18.1. In Commissioner of Police of the Metropolis v Shaw [2012] ICR 533, Underhill P summarised the correct approach to aggravated damages at [20-24]. Aggravated damages are an aspect of injury to feelings and are awarded on the basis that the aggravating features have increased the impact of the conduct on the claimant; an award may reflect the manner in which the wrong was committed; the phrase ‘high-handed, malicious insulting or oppressive’ is often referred to; this is not an exhaustive list, an award may reflect any exceptional or contumelious conduct; Underhill P observed that the large majority of the awards had been in the range £5,000 to £7,000. Uprated for inflation this equates to £6,850 to £9,580. Interest[19]The Tribunal must consider whether to award interest on the sums awarded without the need for any application by a party, but an award of interest is not 1 ‘Fifth Addendum to Presidential Guidance Originally Issued on 5 September 2017’ mandatory: reg 2, Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (‘ET(IADC) Regs’).2[20]Interest is calculated as simple interest accruing from day to day (reg 3(1)). For claims presented on or after 29 July 2013 the relevant interest rate is that specified in s.17 of the Judgments Act 1838: see The Employment Tribunals (Interest on Awards in Discrimination Cases) (Amendment) Regulations 1996.3 The interest rate now to be applied is 8%.[21]As for the period of calculation, for awards of injury to feelings interest is awarded from the date of the act of discrimination complained of until the date on which the Tribunal calculates the compensation (reg 6(1)(a) ET(IADC) Regs). For all other sums interest is awarded from the mid-point of the date of the act of discrimination complained of and the date of calculation (reg 6(1)(b)).[22]Recoupment does not apply to compensation for discrimination. Findings of fact The Claimant’s mental health before his employment with the Respondent
Findings of fact
[23]The Claimant had experienced mental health difficulties since 2018. His evidence (paragraph 3 of his remedy statement) was that his mental health was ‘stable and under control, allowing me to function professionally and personally without significant impairment’ before his employment with the Respondent began. The decline in the Claimant’s mental health in late 2022[24]We record the Claimant’s evidence as to his increasing disenchantment with working for the Respondent: 24.1. he ascribes the decline in his mental health as having been ‘triggered by a combination of increasing work pressures, a gradual withdrawal of support from management, and a noticeable shift in the company’s approach to workplace well-being’; he criticises the company’s ‘clear emphasis on quantity over quality’; he states that ‘the work environment became increasingly stressful, deadlines became tighter and the pressure to perform again to mount’; 24.2. he mentions that this ‘began to erode the sense of job satisfaction I had previously experienced’; 24.3. the Claimant mentioned that ‘ethical dilemmas began to surface… I was made to participating practices that went against my values, such as pressurising candidates to sign up the company under full pretences and advertising non-existent jobs to collect fees for DBS cheques’; 24.4. the Claimant also explained that the growing pressure ‘coincided with a series of personal challenges and external stresses that compounded the effects of my mental health’. 2 SI 1006/2803 3 SI 1996/2803[25]We remind ourselves that the only unlawful acts of discrimination the Tribunal found occurred - and for which the Claimant falls to be compensated - are the failure to make reasonable adjustments to the Claimant’s targets between the two review meetings in December 2022 and the acts of discrimination which we found occurred on 15 December 2022. All the matters set out in the subparagraph above predate the discrimination which we have found occurred. The events from 15 December 2022 onwards[26]By 15 December 2022, when we have found that the Claimant was subjected to unlawful discrimination, he was four months into a six-month probationary period.[27]At 09:48 in the morning, not long after the meeting on 15 December 2022, Mr Brandon wrote to the Claimant accepting his resignation and denying that is contract was terminated. The next day the Claimant wrote to Mr Brandon stating that he had not resigned but would not be attending work. The Claimant complained about what he described as the bullying behaviour at the previous meeting. He said that his mental health had taken a turn for the worse. Mr Brandon replied later in the day, acknowledging the Claimant’s explanation that he had not, in fact, resigned. He wished him a speedy recovery and encourage to focus on his mental health for the time being.[28]The Claimant was signed off by his GP on 16 December 2022 until 4 January 2023; the cause was given as ‘stress at work’.[29]On 20 December 2022, Mr Brandon informed the Claimant that he would be placed on statutory sick pay between 16 December and 4 January 2023; the position would be reassessed in the New Year. The Claimant replied, asking whether the Respondent would pay for his therapy. Mr Brandon replied that he did not consider that appropriate. The Claimant replied, stating that he was ‘with the mental health team but things take time in the NHS’. Later the same morning Mr Brandon sent the Claimant an invitation to attend a welfare meeting remotely on 3 January 2023.[30]On the day of the proposed meeting, the Claimant wrote to the Respondent, explaining that he was still not well mentally and setting down his requirements for the meeting, including that Mr Brandon should be present. The Claimant intended to be accompanied by Ms Grace Brandon (an ex-employee of the Respondent, who now worked for a competitor business). Mr Brandon replied explaining that he could not personally be present that day and suggesting that the meeting be postponed to later in the week. If the Claimant wished to be accompanied, it should be by a colleague from the Respondent.[31]The Claimant wrote later the same day saying that he could not attend the scheduled appointment and observing that he did not feel comfortable being accompanied by an employee of the Respondent as he did not trust them. In the event, the meeting never took place because the parties were unable to agree the terms on which meeting the conducted.[32]On 4 January 2023 the Claimant notified the Respondent that he had been signed off for two months. His GP issued a fit note on 4 January 2023, signing the Claimant off until 3 March 2023, giving the condition as ‘mixed anxiety and depressive disorder’; the Claimant was referred to a psychiatrist, the referral letter stated that the Claimant was ‘under the mental health team, he is struggling with anxiety symptoms which are impacting his work and his daily life and medication not helping’.[33]There is an undated letter from the Claimant’s therapist, which confirms that the Claimant began attending counselling sessions with her on 16 January 2023. She records that ‘upon starting therapy, Mr Blackwood presented as highly distressed, with a notably low mood’. She noted that a significant theme throughout their sessions had been the Claimant’s ‘ongoing struggles at work’. She stated that when the topic of his employment came up, the Claimant’s anxiety and distress ‘visibly increased’ and that pressure to return to work left him feeling ‘overwhelmed, causing significant fluctuations in his mental health’. She recorded her view that ‘ongoing issues with his workplace had contributed to his distress’.[34]On 1 February 2023, Mr Brandon invited the Claimant to a welfare meeting on 1 March 2023 by Zoom, i.e. shortly before the expiry of the existing sicknote. The Claimant informed Mr Brandon that he would be unable to attend ‘as I won’t have support’. He suggested that the meeting be rescheduled to 6 March, when a member of the mental health team was available to attend with him. On 21 February 2023, Mr Brandon agreed to reschedule the meeting, reiterating that the meeting would take place by Zoom.[35]On 20 February 2023, the Claimant had an appointment at the Brentwood resource Centre. He reported that he had started counselling and found this beneficial to his mental health. He said that he still worried about a lot of things; his worry was mainly about his being gay in his social environment; his last panic attack was in December 2022; his eating habits were intermittent, but he enjoyed going to the gym which he did 3 to 5 times a week; he had recently come back from Mexico, where he had stayed for 11 days with a friend; he had had an enjoyable time and felt quite positive after his arrival home.[36]On 3 March 2023, the Claimant provided a further fit note, signing him off until April 2023, giving ‘stress at work’ as the reason. On the same date, he was discharged from the local mental health team back to his GP.[37]The Claimant indicated on 27 February 2023 that he was uncertain whether he would be able to attend the meeting. The Respondent replied, informing him that they had decided to put the meeting on hold, having by now received a letter from the Claimant’s solicitor.[38]On 30 March 2023, Ms Lonergan of HR invited the Claimant to a welfare meeting on 6 April 2023. She also asked for the Claimant’s consent to the Respondent contacting the Claimant’s GP to ask for a medical report.[39]On 1 April 2023, the Claimant lodged his claim form in these proceedings. We note that the Claimant did not subsequently issue a second case, complaining about the events post-April 2023, including the circumstances surrounding the termination of his employment later in the year.[40]On 3 April 2023, the Claimant was signed off until 14 May 2023 for stress at work. On the same day the Claimant wrote to Ms Lonergan saying that he was uncertain about providing consent because he considered that his personal information had been breached. Ms Lonergan wrote to him, seeking to reassure him. However, the Claimant replied stating he did not trust Mr Brandon to have access to his medical information because he had ‘no empathy’; he referenced a text exchange in which the Claimant had mentioned that he was feeling suicidal and Mr Brandon replied ‘OK, Jamie’; despite asking to see this, we were not taken to a text exchange which confirmed that; there was a text from Mr Brandon using that phrase, but in a different context.[41]The Claimant agreed to speak to OH. He said that he would be in ‘no fit state to go anywhere near work’ until he knew what training the Respondent had put in place better to understand his mental health.[42]On 13 April 2023, the Respondent extended the date for the probation to 17 May 2023, given that the Claimant was signed off.[43]On 24 April 2023, the Claimant wrote to Ms Lonergan, stating that he was feeling ‘very low, depressed, lost, extremely anxious and emotionally exhausted. He said that he was struggling to come to terms with whether he would be able to go into ‘a new employed job’ due to his extreme anxiety.[44]On 25 April 2023, Ms Lonergan wrote to the Claimant asking him to be to attend an occupational health assessment. The Claimant agreed by email on 4 May 2023; he also mentioned his grievance for the first time. Ms Lonergan replied with details of the OH process and the company grievance procedure.[45]We pause at this moment to make findings about the Claimant’s resumption of his work as a driving instructor; we found the Claimant’s evidence on this issue unsatisfactory; when this matter was first raised with him in cross-examination he asserted that he started giving driving lessons again ‘at the end of 2023’. We find, on the balance probabilities, that he started much earlier than that. 45.1. By the beginning of May 2023 at the latest, the Claimant had begun to give driving lessons again. We were taken to an online post in which the mother of a client said that the Claimant had done a wonderful job: her son had passed his test first time. That was on 16 May 2023; plainly the Claimant must have been giving those lessons for a number of weeks before the test. He did not tell the Respondent about this. He told the Tribunal that he did this on an unpaid basis as part of his therapy. We accept that evidence, at least at this point. 45.2. In September 2023, the Claimant was seen giving lessons in his car. We find that, by September at the very latest, the Claimant was doing paid work as a driving instructor for the reasons given in the next subparagraph. 45.3. We note that the Claimant makes no claim for loss of earnings from October 2023 onwards. We infer from this that, by that point, he was earning enough from his work as a driving instructor to extinguish his loss. He must have been building up his work as a driving instructor from around July 2023 onwards, to the point where it was a full-time occupation, although it is likely that there was a period in late August/early September 2023, when he was not working at all because he was admitted to hospital.[46]We note with concern that the Claimant did not mention any of this activity in his witness statement; that appeared to us to be a significant omission of obviously relevant information.[47]Returning to the point where we left off in the chronology, on 5 May 2023 the Claimant emailed Ms Lonergan, including a request not to ask about his health or his feelings as he did not want Mr Brandon to know about that. Ms Lonergan again sought to provide reassurance by email of 10 May 2023 and chased the Claimant’s consent for the OH assessment. The Claimant indicated that he consented to OH with certain conditions.[48]On the same day he submitted his grievance. He explained that the delay in submitting it was because of his mental health. The grievance included some of the matters which were the subject of these proceedings, but also some other allegations against Mr Brandon, which were not.[49]On 19 May 2023, the Claimant was signed off again until 13 July 2023: ‘mental health review’ was given as the reason.[50]On 2 June 2023, the Claimant’s grievance was acknowledged. He was invited to a meeting on 14 June 2023 by Teams. That meeting took place.[51]On 19 June 2023, Ms Lonergan further extended the Claimant’s probation review meeting until 28 July 2023.[52]The Claimant had been in receipt of universal credit since February 2023; he stopped receiving this in June 2023.[53]On 5 July 2023, Ms Lonergan notified the Claimant that his statutory sick pay would end on 8 July 2023, reminding him that he was entitled to SSP for 140 days. She informed him that she was still investigating the grievance, but that she had been unable to conclude the investigation as Mr Brandon had been out of the office; once he was back, they would be able to provide an outcome.[54]Mr Brandon told the Tribunal that he was absent from work altogether in June and July 2023, dealing with his own mental health issues. We accept his evidence. We accept Ms Lonergan’s evidence that other staff, whom she needed to interview about the Claimant’s grievance, were on holiday in August; Mr Brandon was also away on holiday for two weeks during the month of August; because this was an education company, most people took annual leave during the school holidays.[55]The Claimant’s occupational health assessment took place by video on 13 July 2023. The report is dated the same date. The report records the Claimant stating that ‘at present he is having intrusive thoughts and is suffering symptoms of severe anxiety’. OH assessed the Claimant as suffering from ‘anxiety with depression’; he was assessed as unfit to work.[56]On the same date, a further fit note was issued, signing the Claimant off work until 12 October 2023: ‘anxiety state NOS [not otherwise specified]’.[57]On 28 August 2023, the Claimant attended A&E, having taken an overdose of 4 venifaxine. He remained in A&E at the mental health liaison suite, awaiting admission to a mental health ward, until 30 August 2023, when he discharged himself. The Claimant referred to this during his evidence as a suicide attempt. According to the hospital record, dated 1 September 2023, the Claimant at that stage had a diagnosis of generalised anxiety disorder; the overdose was described as being ‘due to noise problem with neighbours’; the Claimant said that when he was admitted into hospital his intrusive thoughts became ‘vivid and extreme’; however, he denied any intent to hurt himself; the record notes that the main triggers were issues around his sexuality and the issue with his neighbour. Although this was clearly a very difficult time for the Claimant, we are not satisfied that there is sufficient evidence to show that this downturn in the Claimant’s mental health was caused or materially contributed to by the acts of discrimination by the Respondent, which occurred eight months earlier.[58]We were taken to a short letter, which appears to be dated 15 September 2023, from the local adult mental health recovery and well-being team, recording that the Claimant had been referred to the team for assessment by his GP ‘due to his low mood and increased anxiety’; other than that, it is difficult to rely on this letter because it had been very heavily redacted by the Claimant.[59]On 15 September 23, Ms Lonergan informed the Claimant that she had completed her investigation into his grievance and provided an outcome.[60]The Claimant submitted his letter of resignation on 31 October 2023. He stated that he had been on long-term sick leave ‘receiving treatment for mental health issues worsened by my experiences at Qualiteach’. He alleged that the delay in responding to his request for a welfare meeting had been detrimental to his recovery does well being. He said that the lack of adequate and timely support no choice but to resign for the sake of his mental well-being.[61]The Respondent replied the next day, acknowledging his letter and inviting him to reconsider his decision, giving him until 10 November 2023 to do so. He did not retract his resignation. Injury to feelings[62]There is no separate claim in respect of personal injury. As is often the case in Employment Tribunal cases, the Claimant relies on the impact of the discrimination on his health as an aspect of his claim for an award for injury to feelings.[63]The Claimant had a history of mental health problems, which he had told the Respondent about. He had suffered a relapse in the period leading up to 6 December 2022. The Claimant blames the Respondent for this. However, the matters he relies on all pre-date the discrimination which we have found occurred in December; the Claimant cannot rely on them as contributing to the compensation he seeks.[64]We are satisfied that the Respondent’s failure to make the adjustment which we have found it ought to have made (to reduce the Claimant’s targets and/or to extend the deadline for reaching it) exacerbated the Claimant’s anxiety in the period between the two meetings on 6 and 15 December 2022, although not to the extent that the Claimant was unable to work, nor did he consult his GP, nor did he indicate that he was likely to take significant amount of sick leave; we have concluded that his ability to meet his targets caused the Claimant significant worry, but the effects were no greater than that. If we were to make an award for injury to feelings in respect of this act alone, it would be an award in the lower Vento band.[65]Turning to the impact on the Claimant’s feelings of the discriminatory harassment on 15 December 2022, we remind ourselves that we must disregard any injury to feelings caused by things other than the discriminatory acts, including the things which preceded it, in relation to which the Claimant did not make claims, or things which he did make claims about but which we found were not discrimination. Similarly, we must disregard for these purposes conduct by the Respondent which occurred after 15 December 2022.[66]There is no doubt that the Respondent’s treatment of the Claimant on 15 December 2022 upset him greatly and made him extremely angry; we found in our judgment on liability that he felt humiliated by it, and that he was entitled to do so. He was also thrown badly off balance; indeed, he appeared to be so unstable that Mr Brandon was concerned that he might be considering suicide. We are satisfied that the Respondent’s conduct put the Claimant into crisis for a short period.[67]He was first signed off with stress at work and then, on 4 January 2023, with ‘mixed anxiety and depressive disorder’. He had therapy from January 2023 and was referred to a psychiatrist; his therapist records that there was a clear link between the Claimant’s distress and his work situation.[68]We conclude from the above that there was an exacerbation of his mental health difficulties between mid-December 2022 and mid-February 2023, which we are satisfied was caused by the Respondent’s discrimination.[69]However, by 20 February 2023, the Claimant was recorded as feeling more positive: he was attending the gym frequently and had enjoyed a holiday in Mexico. The fit note of 3 March 2023 signing him off to April was ‘stress at work’; there was no reference to anxiety/depression. We have concluded that by this stage there was a marked improvement in the Claimant’s mental health, probably as a result of the therapeutic interventions as well as the steps he personally had taken (gym attendance, travel etc.).[70]The correspondence from around this time shows ongoing anger towards the Respondent and a deep, no doubt permanent, mistrust of Mr Brandon, which prevented any direct engagement with the Respondent.[71]From the beginning of May 2023, the Claimant was sufficiently improved to be able to resume his work as a driving instructor. He was then able to build that work up over the following months, to the point where it matched his earnings from the Respondent. We infer from this that his mental health was, by mid-2023, substantially improved.[72]The Claimant mentioned several times that he had a serious downturn in his mental health in late August 2023 and was admitted to hospital. There is no medical evidence from which we could conclude that this was caused or materially contributed to by the Respondent’s discrimination; we consider that the fact the discrimination took place some nine months earlier points away from it being a cause; there was evidence before us that it was caused by other factors altogether, including the Claimant’s housing situation. Accordingly, we do not take those events into account when determining the level of the injury to feelings award.[73]Standing back and looking at the overall impact on the Claimant, the discriminatory events (failure to make reasonable adjustments and harassment) took place over a short period, between 6 and 15 December 2022; the failure to make reasonable adjustments caused the Claimant significant worry and worsened his anxiety; the events of 15 December 2022 caused an intense emotional reaction (we have referred to it as a crisis), which led to a significant downturn in his mental health between then and February 2023; by March 2023, there was an improvement, which continued to the point where the Claimant was able to resume work as a driving instructor by mid-2023 at the latest; his feelings of anger and mistrust towards the Respondent, however, remained.[74]Taking all this together, we have concluded that an award in the lower band would be manifestly inadequate; nor do we think that an award in the upper band would be appropriate, given that there was substantial improvement by three months after the discrimination which was then sustained; this does not come fall into the category of being one of the ‘most serious cases’ alluded to in the guidance. We have concluded that an award in the middle of the middle band is appropriate, given the initial impact on the Claimant, which we have described, the downturn in the Claimant’s mental health in the period immediately following the discrimination, and the improvement noted from February onwards. We bore in mind the residual effects, including his ongoing anger and mistrust. We leave out of account the events of August 2023 for the reasons we have already given. In our judgment, the appropriate award in all the circumstances is £20,000.[75]We note that an award at this level is consistent with the Claimant’s original schedule of loss, which contended for an award in the middle band in respect of all his allegations of discrimination. We found it surprising that the Claimant later increased his claim to an award in the top band (£40,000), by which time many of his allegations of discrimination had been rejected by the Tribunal. Interest[76]For awards of injury to feelings interest is awarded from the date of the act of discrimination complained of until the date on which the Tribunal calculates the compensation. 76.1. The award is £20,000. 76.2. 15 December 2022 was the date of the act. 76.3. The calculation date was our in-chambers deliberation day: 28 January 2025. 76.4. The number of days between those two dates = 775 days. 76.5. The interest rate is 8%. 76.6. Interest is 775 x 0.08 x 1/365 x 20,000 = £3,397.26.[77]Awards in respect of pre-termination injury to feelings are tax-free. This element of compensation does not need to be grossed-up. Loss of earnings[78]The starting -point is: what would the Claimant have earned during the period of loss claimed for, had he remained in the Respondent’s employment? The Claimant claims loss of earnings between December 2022 and the end of October 2023. The Respondent accepts that the Claimant’s gross monthly pay was £1,896. His income in full from the Respondent, had he continued in employment from the beginning of December 2022 until the end of October 2023 would have been £20,856 (11 months x £1,896).[79]The Claimant gave credit (in table form) for his income during that period in the amount of £6,474.51. Although he did not break the figure down, we understand that this consisted of a combination of salary from the Respondent (for the first part of December), statutory sick pay and earnings from work as a driving instructor (during the latter part of 2023). Those figures were not challenged by the Respondent.[80]The Claimant must also give credit for the fact that, in October 2023, he earned more than he would have done, had he been working for the Respondent: £2609.04: the surplus is £713.04 (£2609.04 - £1896).[81]The Claimant did not mention at the hearing that he was in receipt of universal credit during the material period. The sums received are documented in the bundle: £464, paid in February 2023; £402, paid in March; £469, paid in April; £527, paid in May; £732 in June. This produces a total of £2,594 for which the Claimant also must give credit.[82]Any loss which these figures give rise to is subject to any Chagger reduction the Tribunal makes, that is to say a reduction on the basis that there was a chance that the Claimant’s employment would have ended earlier than it did, had there been no discrimination. We go on to consider that question before calculating the loss. Findings and conclusions: Chagger[83]The Respondent invited us to take into account the Claimant’s aggressive and unprofessional behaviour on 15 December 2022 in deciding whether the employment relationship would have continued; the submission made is that there was a 0% chance that the employment would have continued.[84]In our judgement, that submission is misconceived. It leaves a crucial factor out of account: would the Claimant’s aggressive and unprofessional outburst on 15 December have occurred, had the Respondent not sought to dismiss the Claimant on 15 December 2022 (in a humiliating manner) and, instead, made the reasonable adjustment of lowering his target and/or extending the time in which he had to meet it?[85]We unanimously conclude that there was a 0% chance that the Claimant’s outburst would have occurred; the Claimant would have appreciated the Respondent’s making the reasonable adjustment and gone back to work.[86]The Respondent then submits that the Claimant would have been dismissed because he covertly recorded the Respondent at the meetings on 6 and 15 December 2022.[87]Again, we unanimously reject that submission. Had there been no discrimination, both meetings would have ended positively, the recordings would have been of no use to the Claimant, and he would not have needed to reveal their existence to the Respondent; consequently, there would have been no dismissal for that reason.[88]There remains a question which we consider is legitimate: how long would the employment relationship have continued, had the discriminatory conduct not occurred, i.e. had the Respondent not sought to dismiss the Claimant on 15 December 2022 and, instead, made the reasonable adjustment of lowering his target and/or extending the time in which he had to meet it?[89]The Respondent submits that the Claimant was on probation; there was a 100% chance that he would not have met the lower targets, even if adjustments had been made, and would have been dismissed at the end of the probationary period. The Claimant, by contrast maintains that he was doing well and, in particular, was bringing in new clients.[90]We reject the Respondent’s submission. We dealt at some length in our judgment on liability with the Claimant’s comparative performance (J47 onwards). We concluded that, prior to the downturn in the Claimant’s mental health in October 2022, there was no reference to his performance being unsatisfactory; he brought three new schools into business his performance against target was better than that of Ms Strachan (who remained in the Respondent’s employment); in terms of quarterly performance against targets, the Claimant was performing proportionally better than the Strachan and only marginally worse than Mr Goldie (albeit his target was many times higher than the Claimant’s).[91]Looking solely at performance, we have concluded that there is no evidence that, had there been no discrimination, he would have been dismissed before the end of his probationary period on 7 February 2023; we consider that he was likely to meet adjusted targets and therefore there would have been no basis on which to dismiss him. We have concluded that he is entitled to his full loss up to that point, which is: 91.1. £813 for December 2022; 91.2. £1432 for January 2023; 91.3. £374.75 for one week in February (i.e up to 7 February 2023); 91.4. that produces a total of £2619.75.[92]However, we are satisfied that there are other contingencies we ought to take into account. The Claimant was new to this kind of high-pressured sales environment and was in some ways temperamentally unsuited to it: he was also used to being his own boss; we think there is a chance that he would have found it difficult to work within a hierarchical management structure in the long-term; we also noted his marked and growing distrust, indeed disapproval, of the Respondent which we have referred to above (see para 24 above), which predated the discrimination; finally, we think that there is a significant chance that his long-term anger issues would have brought him into conflict with those managing him at some point.[93]Taking all these factors together, we have concluded that there is a 30% chance that, had there been no discrimination, his employment would have terminated in any event, either by resignation or dismissal, between the end of his probation period (8 February 2023) and the end of the period for which losses claimed (the end of October 2023) Accordingly, a reduction of the compensation for loss of earnings of 30% will be made. For the avoidance of doubt, that adjustment does not apply to the award in respect of injury to feelings.[94]The loss for that second period is calculated as follows: 94.1. the loss in full from 8 February to the end of October 2023 in full is £12,481.75 (£1,124.25 for the balance of February + £11,357 for March to October); 94.2. the Claimant must then give credit in the amount of £713.04 for his profit in October and £2,594 for universal credit; 94.3. total in full for the second period is £9174.71; 94.4. 70% of that is £6,422.30; 94.5. adding the two periods together produces a grand total of £9,042.05 (£6,422.30 + £2619.75).[95]As will be apparent, the figures provided to the Tribunal were gross. They should have been net figures, which must then be grossed up to ensure that, once the Claimant has paid tax at the appropriate rate, he will be in receipt of the net sum in full. Even if the Tribunal had been provided with net figures, it would not been able to do the grossing up exercise without knowing what the Claimant’s tax position will be in the year in which he receives the compensation.[96]The Claimant is also entitled to interest at 8% on the net award, which must be calculated from the mid-point between the date of the discrimination (15 December 2022) and the calculation date (28 January 2025); that is 6 January 2024.[97]The parties must cooperate with each other to agree(a) the net equivalent of the grand total figure of £9042.05;(b) the amount of interest to be added and(c) the grossed-up amount which the Tribunal should award based on (b).[98]They shall do so by no later than 28 days from the date on which this judgment is sent to the parties; the Tribunal will then issue a supplementary judgment in respect of loss of earnings in accordance with the agreed amount. Aggravated damages[99]The Claimant claimed £15,000 aggravated damages. The starting-point is that, even if the Tribunal were minded to make an award under this head of loss, that is considerably higher than the range of awards the case law suggests would be appropriate.[100]In his closing submissions, the Claimant confirmed that the only matter relied on in relation to aggravated damages was the Respondent’s alleged failure to deal with his grievance in a timely fashion.[101]We observe that the application sits uncomfortably with the fact that the grievance itself was not brought in a timely fashion. He brought it in May 2023; it relates largely to events in 2022. The main focus of the grievance is on the conduct of Mr Brandon.[102]We have already found as a fact that Mr Brandon was absent on sick leave in June and July 2022, dealing with his own mental health issues. We also accept that the grievance process could not be completed in August 2022 because so many staff, including Mr Brandon, were on holiday. The process was concluded in September 2022 and an outcome was sent to the Claimant. In the circumstances, we do not consider that this delay was unreasonable.[103]Even if we are wrong about that, and the delay was unreasonable, it did not amount, in our judgment, to ‘high-handed, malicious insulting or oppressive’ conduct. This is a high threshold and it is not met in this case. Preparation time order:
The law
[104]The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provide as follows (as relevant): (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; […][105]Orders for costs in employment Tribunals are the exception, not the rule (Gee v Shell UK Ltd [2003] IRLR 82 CA per Sedley LJ at [35]). However, the facts of a case need not be exceptional for a costs order to be made. The question is whether the relevant test is satisfied (Vaughan v London Borough of Lewisham and others [2013] IRLR 713).[106]The EAT in Haydar v Pennine Acute NHS Trust UKEAT/0141/17 held that the determination of a costs application is essentially a three-stage process (per Simler J at [25]): ‘The words of the Rules are clear and require no gloss as the Court of Appeal has emphasised. They make clear (as is common ground) that there is, in effect, a three-stage process to awarding costs. The first stage - stage one - is to ask whether the trigger for making a costs order has been established either because a party or his representative has behaved unreasonably, abusively, disruptively or vexatiously in bringing or conducting the proceedings or part of them, or because the claim had no reasonable prospects of success. The trigger, if it is satisfied, is a necessary but not sufficient condition for an award of costs. Simply because the costs jurisdiction is engaged, does not mean that costs will automatically follow. This is because, at the second stage - stage two - the Tribunal must consider whether to exercise its discretion to make an award of costs. The discretion is broad and unfettered. The third stage - stage three - only arises if the Tribunal decides to exercise its discretion to make an award of costs, and involves assessing the amount of costs to be ordered in accordance with Rule 78.’[107]‘Unreasonable’ has its ordinary meaning. It is not equivalent to ‘vexatious’ (Dyer v Secretary of State for Employment UKEAT/183/83).[108]The question of whether lies amount to unreasonable conduct was discussed in Arrowsmith v Nottingham Trent University [2012] ICR 159 at [32-33] per Rimer LJ: ‘[…] In the recent decision of the EAT in HCA International Ltd v May-Bheemul UKEAT/0477/10/ZT, 23 March 2011, Cox J, who delivered the judgment of the EAT, made the same point. She said: “39. Thus a lie on its own will not necessarily be sufficient to found an award of costs. It will always be necessary for the tribunal to examine the context and to look at the nature, gravity and affect of the lie in determining the unreasonableness of the alleged conduct. 40. As this last case makes abundantly clear, no point of principle of general application is established in any of the cases being relied upon by Mr Beyzade [and they included Daleside]. In our judgment the Employment Tribunal’s reasoning in the present case, at para 12 of their judgment, is unimpeachable. Where, in some cases, a central allegation is found to be a lie, that may support an application for costs, but it does not mean that, on every occasion that a claimant fails to establish a central plank of the claim, an award of costs must follow.” 33. I would respectfully endorse that approach. The question for the ET when considering whether or not the making of an order for costs is justified will always be whether, on the particular facts of the case, any of the circumstances referred to in rule 40(3) of the 2004 Regulations have been satisfied. It will therefore be a fact-sensitive exercise and a decision in another case, in what might superficially appear to be circumstances similar to those of the instant case, will not dictate the decision in it.’[109]Costs awards are intended to be compensatory, not punitive. The costs awarded should be no more than is proportionate to the loss caused to the receiving party by the unreasonable conduct (Barnsley Metropolitan Council v Yerrakalva [2012] IRLR 78). However, unlike the wasted costs jurisdiction, in exercising its discretion to order costs, the Employment Tribunal does not have to find a precise causal link between any relevant conduct and any specific costs claimed. Mummery LJ gave the following guidance at [41]: ‘The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.’[110]In Pinnock v Birmingham City Council, UKEAT/0185/13/MC at [48-50]. The EAT held: ‘As to procedure, rule 38(9) does not require that a hearing be designated specifically as a “costs hearing” or that written notice necessarily be given of it. Rule 38(9) requires only that the party against whom an order is sought has an opportunity (which no doubt means a fair and reasonable opportunity) to give reasons why an order should not be made. It is not at all unusual for an oral application to be made for a costs order. Where, as here, the order related to the costs of a specific postponement, it is usually in the interests of all parties for the matter to be addressed while the circumstances are fresh in their minds. Generally speaking, an oral application will inform the party concerned why the application is being made and in what amount; and usually it will be sufficient to permit the party concerned to reply on the day of the application. Preparation time order application[111]The Claimant made an application for a preparation time order.[112]In its counter-schedule, the Respondent sought further information of the application: the precise failures to comply with Tribunal directions and when they occurred; and the preparation time incurred as a result of those failures. The Tribunal ordered the Claimant provide that information in a letter dated 3 January 2025.[113]The Claimant provided a response dated 8 January 2025. He relied on two matters: 113.1. the fact that the Respondent was not ready to exchange witness statements until 4 June 2024; the original date for exchange was 22 May 2024; the Claimant had agreed an extension until 31 May 2024; 113.2. the failure to disclose support plans and emails showing that other employees had been invited to meetings similar to the one the Claimant attended on 15 December 2022.[114]The Claimant then went on to list the total number of hours he had spent in total in preparing his case. We record that, in light of the fact that his application is based on the two specific matters set out above, which postdates the vast majority of the preparation of this case, there would be no basis for a preparation time order in relation to the entirety of the preparation; that is a misunderstanding on his part.[115]In relation to the first matter, the extension of time to 31 May 2024 was agreed by the Claimant. Making a preparation time order in relation to an agreed extension would be misconceived.[116]As for the further delay of four days to 4 June 2024, the hearing did not start until 17 July 2024. Although this was a breach of a Tribunal order by the Respondent, it was not a serious breach and we do not accept that it created the disadvantage which the Claimant described in his application; we found his submissions in this respect exaggerated and implausible. He had just over six weeks to absorb the contents of the witness statement and take advice on it, if he wished to do so. As we found in our judgment on liability (J9), ‘the short delay had because the Claimant some practical inconvenience [but] he had had plenty of time to read the statements and had prepared his questions for the Respondent’s witnesses’.[117]In the circumstances, the Tribunal unanimously concludes that this minor default on the Respondent’s part does not come close to the threshold for a preparation time order.[118]The second matter can be quickly dealt with. There was no Tribunal order for the Respondent to disclose those documents; the Respondent was given an opportunity to do so mid-hearing, if it wished to rely on them; it did not produce them; that damaged its case, in that it led to a finding by the Tribunal that the Claimant had been singled out. The failure the Claimant complains about assisted him in succeeding in his discrimination claim. The Tribunal does not accept that the failure to produce the documents put the Claimant any additional preparation time; on the contrary, had additional documents being produced, that might have required additional preparation; because they were not, it did not. We have concluded that there is no possible basis on which an order for preparation time could be made in the circumstances and we decline to do so.