Miss G Dowokpor v London Borough of Waltham Forest: 3200832/2018
JUDGMENT
[1]The Respondent do pay the Claimant compensation of £22,344.25 (including interest), assessed follows: 1.1. Pecuniary loss (including interest): £8,816.86; 1.2. Damages for injury to feelings: £12,500; 1.3. Interest on the injury to feeling award: £1,027.39.REASONS
[1]On the issue of remedy, the Claimant relied on the following evidence in particular: 1.1. relevant parts of her witness statement (paragraphs 41-45, 58-60); 1.2. a supplemental witness statement with some further documentary evidence attached; 1.3. the GP report at p.272 Bundle.[2]The Respondent did not object to the Claimant adducing her supplemental statement nor the further documentary evidence, even though it had been produced today.[3]Mr. Keen indicated that the Respondent’s case was that the Claimant could not, in effect, give expert medical opinion evidence of causation; and that, whilst the Respondent did not admit that the unfavourable treatment caused any personal injury, there was no point subjecting the Claimant to cross-examination.[4]Ms. Robertson explained that the Claimant did not contend that she had suffered any personal injury. Her case was, however, that the medical evidence we had before us was sufficient for solidifying injury to feelings to the top part of the Vento middle bracket. The issues on remedy[5]Ms. Robertson had produced a helpful, short, revised Schedule of Loss.[6]The parties agreed the following figures: 6.1. Loss of agency fees: £11,900, plus interest of £452.32; 6.2. Loss of balance of parking permit: £15;[7]The Claimant agreed that the figures for JSA and Income Support to be off-set from these figures was £3,550.46.[8]The only issue that the parties were not agreed upon was the level of the injury to feeling award. Ms. Robertson contended that the award should be at the top end of the middle Vento bracket, claiming £20,000. Mr. Keen argued that the award should be at the top of the lower bracket or the bottom of the middle bracket of the Vento brackets.Relevant Law
[9]Ms. Robertson set out the principles of law to be applied by the Tribunal when assessing injury to feelings by directing us to Armitage v Johnson [1997] IRLR 162, paragraph 27. We took into account those principles.[10]Further, we took into account the Presidential Guidance on Employment Tribunal awards for injury to feeling and psychiatric injury, and the First Addendum to them. We reminded ourselves that: “In respect of claims presented on or after 6 April 2018, the Vento bands shall be as follows: a lower band of £900 to £8,600 (less serious cases); a middle band of £8,600 to £25,700 (cases that do not merit an award in the upper band); and an upper band of £25,700 to £42,900 (the most serious cases), with the most exceptional cases capable of exceeding £42,900.”[11]Ms. Robertson sought to rely on Hampshire County Council v Wyatt EAT/0013/16 for the proposition that it was not always necessary for a Tribunal to have expert medical evidence to decide that injury had been suffered. No copy of this case was supplied, so, having reserved judgment, the Tribunal considered a copy of this authority.[12]Wyatt was an appeal against an award in a disability discrimination case. The Employment Tribunal had found that the Claimant’s suspension was not an unlawful act but was the most proximate cause of her depression and triggered that depression; and the Respondent appealed against an award for personal injury on the basis that the Employment Tribunal was wrong to make such an award in the absence of expert medical evidence, which was necessary to establish both causation and quantum of this claim which are difficult issues to disentangle. The Respondent argued that in a low-value case, cost and proportionality issues may drive parties and tribunals to deal with such issues without medical evidence but in all other cases medical evidence must be obtained before such an award can be made. The EAT held (Simler J. presiding), with our emphasis added: “28. Medical evidence in particular, is likely to assist in identifying whether(i) all the injury or harm suffered by a claimant can be attributed to the unlawful conduct and(ii) that injury or harm is divisible. It may assist in determining the extent to which any treatment a claimant has undergone has been successful. It may also assist in dealing with questions of prognosis. In those circumstances, we do not agree with the Tribunal’s statement that all a further medical report can do is say that the Claimant made certain claims and express a view as to whether the maker of the report believes them or not. We consider that in cases where there are issues as to the cause or divisibility of psychiatric or psychological harm suffered by a claimant, it is advisable for medical evidence to be obtained. Moreover, there is a real risk that failure to produce such medical evidence might lead to a lower award or to no award being made. 29. However, we do not accept the Respondent’s argument that medical evidence is an absolute requirement or that an award cannot be made in the absence of expert medical evidence in every such case bar those of low-value without error of law. We would be concerned to see such a principle established, bearing in mind in particular the financial cost involved in obtaining expert medical evidence. We also consider that there are potential practical difficulties that may arise…. In this case, by way of example, we understand from Ms Moss that the Remedy Hearing was listed at the end of the Liability Hearing in March 2015 for a date some three months in the future. However, the Tribunal’s Liability Judgment was not promulgated until a month before the Remedy Hearing. At that point, the Claimant took steps to obtain independent medical evidence, but the report was only forthcoming on the day before the hearing. The Claimant was therefore unable to disclose the report to the Respondent in good time before the Remedy Hearing, and an adjournment was regarded as necessary if she wished to rely on that evidence. Faced with the prospect of an adjournment, she felt unable to cope with further delay and chose to proceed without it. We understand that position and do not criticise her for her approach. It identifies the sort of practical difficulties that might arise were the Respondent to be correct in its submission that as a matter of law in every case medical evidence is required. 30. In any event, we anticipate that in a case where concurrent causes for injury or harm in respect of which compensation is sought or relied on by the respondent to a claim, or established by the evidence, it will be in the respondent’s interests as much as the claimant’s to obtain expert medical evidence. We would expect parties to co-operate in those circumstances and to endeavour where possible to instruct a medical expert on a joint basis.”[13]In this case, neither party proposed that expert evidence be obtained.[14]Mr. Keen produced examples of injury to feelings awards, taken from the “Practical Law UK Checklist”. He accepted that these were not authorities (most described awards at first instance by Employment Tribunals) but he contended that they were a tool to demonstrate how tribunals applied the guidance in Johnson, particularly the value in everyday life of the sums awarded.[15]Counsel accepted that discrimination cases are fact-sensitive; and that each of the cases cited to us was a case decided on its facts. This is demonstrated well by Johnson, which concerned a campaign of discriminatory acts over time; it was the worst such case that that tribunal had seen.[16]We took all the submissions and the above points of law into account. It would not be proportionate to list each submission. Findings as to injury to feelings[17]We accepted the Claimant’s evidence of the effect of the termination of her assignment set out in her supplemental statement.[18]In respect of the “Impact on pregnancy” section of her first witness statement, we agreed with Mr. Keen that the Claimant could not give medical opinion evidence.[19]Insofar as we understood Ms. Robertson’s argument, she was contending that there was a causative link between the Claimant’s physical symptoms and the treatment suffered, which “solidified” her claim for injury to feelings.[20]We have considered Wyatt; but the facts in this case are very different. Here, all the medical and factual evidence points to the Claimant having a difficult pregnancy. There are a number of potential causes for the borderline or high blood pressure and migraines, including the pregnancy itself and the anxiety that was likely to be present given her history of miscarriage. On the evidence before us, on a balance of probabilities, we did not find that the treatment suffered led to the symptoms experienced.[21]However, we found that the treatment of the Claimant added to her anxiety in a very particular way, which did exacerbate her injury to feelings.[22]Each pregnancy is special to the expectant mother. Further, the law seeks to protect the health and safety of the mother and the unborn child, because society recognises that they are vulnerable during the protected period.[23]The Claimant’s pregnancy, however, was a very special pregnancy. The Claimant had a history of miscarriage. She had an ectopic pregnancy and the medical consequences of this are described in her witness statement. The Claimant was “devastated” by the first miscarriage and the events of August 2016. The Claimant’s surprise and joy surrounding her third pregnancy must be viewed with the greater illumination that the context to it provides.[24]Moreover, the importance of this pregnancy to the Claimant was magnified by the risks posed by the history of miscarriage and the borderline or high blood pressure. Termination of the assignment for a pregnancy related reason was bound to add to the Claimant’s stress; we need no medical evidence for that finding.[25]Set in that context, the manner in which the Claimant’s assignment was terminated increased her injury to feelings. We find that this would have arisen for at least the following reasons: 25.1. The lack of prior warning would have increased the impact on her feelings at the time and would have been likely to have increased her stress. 25.2. There was a degree of concealment by the Respondent, as we have explained in our findings of fact on liability. Moreover, the Claimant was misled about the nature of meeting on 3 November 2017. Although it was not the intention, the effect was to increase the hurt to the Claimant.[26]Furthermore, the letter to the DWP at p.204 can fairly be read as being critical of the Claimant’s performance – because the Claimant was in the role that was alleged to be not meeting service requirements. The Tribunal could not understand why, as this letter was going to the DWP, it did not state that the termination was due to budgetary restraints. Had it done so, the Claimant’s performance would not have been put in issue at all. We found that this letter was likely to have added to the Claimant’s injury to feelings.[27]We found the Claimant to an impressive witness, who was likely to be more resilient than others who had experienced such treatment. But we agreed with Ms. Robertson that for such a person to be upset, albeit briefly towards the end of her evidence, demonstrates the degree of hurt that she felt from the treatment.[28]It was common ground that the Claimant was paid £238 per day at the time of the termination. This equates to £1,190 for a 5 day week. Ms. Robertson argued that this was one feature which distinguished this case from the examples relied upon by the Respondent, because the Claimant’s earning capacity was higher than in those cases.Conclusions
[29]We find that the facts set out at paragraphs 24-25 above carry particular weight in this case. They distinguish this case from any of those referred to by Mr. Keen.[30]Taking the facts at paragraphs 24-25, whether on their own or when combined with the other findings above, we are satisfied that the award in this case should be in the middle band of the guidelines in Vento.[31]We have reminded ourselves of the factors in Johnson.[32]The award in this case must not punish the Respondent. There was, after all, a one-off act of discrimination.[33]Further, given our findings, the award must not be too low as to diminish respect for the policy of the legislation in this area. Society has condemned discrimination. This was a very special pregnancy, and we have been critical of the manner of dismissal.[34]We have reminded ourselves of the value of money in everyday life. We have done this by reference to earning capacity. Whereas the Claimant was on a daily rate of £238 per day, it was likely that her contract would not be renewed at the end of March 2018. Her earning capacity as an agency worker in that role, to the end of the year, was in the region of £12,000. We have decided to uplift this slightly to £12,500 given the degree of hurt in this case.[35]Standing back, we consider that the public would respect an award at this level. They would want the Claimant to be properly compensated for the hurt that she had suffered as a result of the treatment found.[36]The interest on this award is assessed as £1,027.39 on the basis of 375 days, at 8% interest.Findings of Fact
[37]It was never mentioned to the Claimant that her progress to this target was to be assessed without the “Love Your Borough” (“LYB”) sponsorship money being considered, much of which would be repeat sponsorship from contractors. We find as a fact, preferring the Claimant’s evidence having evaluated all the evidence, that it was not part of her contract or her job description that the LYB sponsorship money was to be excluded when considering her target. This is evidenced by a range of documents such as the email at p.112 from the Claimant (referring to a sponsorship target as £180K and sponsorship achieved as £75,747), which, in his reply, Mr. Andrews does not object to as inaccurate; and the email from Mr. Andrews at p.142 (referring to a sponsorship target as £180K and sponsorship achieved as £75,747).[38]It was inconsistent for the Respondent’s witnesses to argue that the Claimant’s target was £180,000 and yet argue that the LYB income did not count as sponsorship money. This part of the sponsorship money can be described as the more “low-hanging fruit”.[39]The Claimant was not challenged on the following evidence, which we found accurate:39.1 Paragraphs 5-13 of her statement (setting out her experience and work).39.2 When the Claimant joined the Respondent, key assets, such as social media platforms and online advertising, which are needed to entice brands to provide sponsorship did not exist at the Respondent; if the Respondent had few “followers” there was nothing to sell to the brands and the Respondent had nowhere to advertise the brands.[40]During the initial term, the Claimant was informed that she was performing well. Indeed, a feature of the case is that there was no complaint at any time about her performance. She was not told that her role was at risk at any time.[41]In cross-examination, it was put to the Claimant that although she had raised some sponsorship money herself, by 21 August 2017, she had no active leads. The Claimant admitted this, but explained that: “Sponsorship [is] about relationship building, with people they trust. So [they] need to trust before spend. Need to know you before get [sponsorship]. Need to get through for cold call.”[42]We accepted that evidence. We did not agree that the Claimant’s “added value” was only £15,803 as at 21 August 2017 for at least three reasons:42.1 The Claimant had done work which could not be valued in a purely financial way, such as by creating a generic “deck” for the Respondent to pitch with and by creating tailored “decks” for pitching, amongst other parts of her work.42.2 The Claimant worked with Ms. Hurn on LYB sponsorship so as to secure it. There was no evidence that it was inevitable that the previous sponsors would sponsor again in 2018. We found that LYB income money was sponsorship income.42.3 The Claimant gained sponsorship in kind from Taylor’s Coffee, who donated 50,000 bags of coffee ahead of 2 exhibitions. These were branded with a William Morris theme, and they were given away at VIP events at the exhibitions, then sold in the gallery shop. The Respondent admitted that the coffee had some retail value, because over £700 had been raised in sales, but that there was so much coffee that it could not be sold due to the “best before” date. The Claimant argued that the retail value was greater contending it was the retail price multiplied by the number of units. We found that the value of this sponsorship was more valuable than the dismissive way in which it was treated by the Respondent in evidence, albeit not worth the £150,000 plus contended for by the Claimant.[43]Almost in an aside, Ms. Lee stated that £55,000 had been raised in LYB income by March 2017. This figure was not in any witness statement, nor in any document, nor was it put to the Claimant. We found that it was not reliable evidence, although we do accept some money may have been gathered already by the time she started work. Was there funding for the Sponsorship Officer role for the 12 month period?[44]The Respondent’s case before us was that the role was unfunded. We found that the Respondent’s evidence was inconsistent between its two witnesses.[45]Mr. Andrews in cross-examination gave evidence that it would be extended at the end of year if it had self-funded; he accepted that the Claimant was told her job was safe until end of March 2018, subject to performance review.[46]Ms. Lee gave evidence that the role had to be self-funding in the twelve month period to the end of March 2018. We found that this evidence was not reliable because it was inconsistent with the plain meaning of her email at p.84, sent on 5 May 2017.[47]Taking into account this inconsistency, when weighed alongside the other evidence, we found that, although funding for the post was not part of the core salary budget (demonstrated by R1), the Respondent did have some method of funding it, or else the Claimant could not have been engaged at all. It would not be possible for either the Claimant or the Employment Tribunal to specify precisely what this source of funding was. R1 was only one part of the financial picture; it did not show the income picture, nor did it show other budgets such as the Leader’s budget, which was referred to in evidence by Ms Lee.[48]Moreover, events in early May 2017, demonstrated there must have been some budget or income to fund the post until the end of March 2018.[49]In April 2017, the Claimant was offered another role with the Hip Hop Shakespeare Company, for a two year fixed term contract.[50]The Claimant was told by Mr. Andrews that the Respondent wanted her to stay.[51]The Claimant told Mr. Andrews she wanted job security and needed to know the job was secure for a year at least.[52]We have considered the emails at p.84 sent on 5 May 2017 between Mr. Andrews and Ms. Lee. These read 4 May 2017 11:19 from Mr. Andrews: “Please can you confirm we have the budget to keep the Sponsorship Officer Post until the end of the financial year, 30th March 2018?” The response from Ms. Lee dated 5 May 2017 14:55 is as follows: “I can confirm that we will retain the Sponsorship Officer post until end March 2018. The aim is for the post to self-fund, and if this approach is successful we will be able to retain for a further extended period.”[53]In oral evidence, there was no real disagreement that what the email from Ms. Lee represented was that there was a longer term “aim” for the post to selffund not that it had to do so in the 2017-18 financial year.[54]The use of the smiley emoji – in the email at 15:47 on 5 May 2017 – confirms the understanding of Mr. Andrews that some form of funding was available to the end of March 2018.[55]The other evidence supports our finding that this was in fact the position. The Department would have had to have had expenditure approved for the post before going to Matrix, especially as a job description had been created (see the evidence of Mr. Andrews in cross-examination).[56]Also, on 10 May 2017 by email Mr. Andrews confirms to the Claimant that she is to stay in post to end 30 March 2018 (p.87).[57]At p.88, by email, Mr. Andrews makes clear the extension to the end of the year is subject to performance reviews. In fact, there were no performance reviews.[58]Mr Andrews also explained to the Claimant in May that he could only extend the Claimant’s contract by one month at a time due to restrictions of the Matrix system.[59]There was no criticism of the Claimant’s performance at any time. On 6 July 2017, objectives were set for the Claimant, agreed between her and Mr. Andrews. There was no performance management around these objectives.[60]By 21 August 2017, there were no new “bites” or leads for the Claimant. Having considered the table at p.142, showing the position in respect of income from sponsorship, and given our findings of fact above, we found that the sponsorship income did exceed the sponsorship target at that point in time (taking a pro rata approach and given the month reached); but we also find that current income in areas other than LYB (Get Together, Lorrie Cunningham Galleries) was lower than the target figures, on a pro rata basis taking into account the month in the year reached.[61]On 29 August 2017, by email to Mr. Andrews, Ms. Lee explained that she would review progress with sponsorship, that the post was not funded, and that “we need to be making at least the costs to make it break even (a big ask I know)”. This email recognises that it would be difficult for the Claimant to raise sufficient money from entirely new sponsors to cover the cost of the agency fees. But neither this email, nor any other, suggested that the Claimant’s role was not required nor that it would be likely to be terminated before end March 2018.[62]On 8 September 2017, Ms. Lee emailed Rohan Robinson, Group Accountant. This email (p.146) asked if there was salary in the “core budget” for a Sponsorship Officer, asks for current costs and asks what the level of overspend would be on salary if the post continued to the end of the financial year.[63]The response is that the post is not funded, and it is projected to cost £65.5K to the end of March 2018. He explained that he will have the rest of the answer the following week. There is no document from the following week to answer this query. Termination of agency worker assignment[64]At a meeting on 9 October 2017 the Claimant informed Ms. Lee that she was pregnant. We accepted the Claimant’s evidence at paragraph 44 of her witness statement which was not challenged.[65]The emails at p.148 record what was discussed at the meeting, including congratulations from Ms. Lee. It is apparent from the email of Ms. Lee that the Claimant had two priority projects. One of these – Walthamstow Wetlands Project – was a new assignment for the Claimant, albeit Ms. Lee considered that it could be completed within one week.[66]It was also agreed at this meeting that the Claimant would work from home to ensure sufficient rest to promote the safety of the Claimant and her baby.[67]Mr. Andrews was informed of the Claimant’s pregnancy on 10 October 2017. Prior to the meeting on 9 October 2017, the Claimant had had a day or so of sickness which Mr. Andrews was aware of this.[68]The Claimant became concerned about rumours that the Respondent was not happy about her being pregnant. There is some documentary evidence to corroborate the existence of rumours in the form of the four question marks in the message from another staff member on 13 October 2017 at p.150.[69]Mr. Andrews sought advice from Human Resources on 26 October 2017 about the termination of the Claimant’s assignment, evidenced by the emails at p.167A-B. The Human Resources adviser, Ms. Murray, records her recollection of what she was asked in an email of 7 August 2018 (p.245A).[70]On 1st November, Mr. Andrews invited the Claimant to a catch-up meeting on 3 November 2017: see email p.181. The Claimant called Mr. Andrews and asked him if everything was fine. He replied that it was. The Claimant put to him the rumours that she had heard, that he and Ms. Lee were not happy that she was pregnant. He denied it as being “rubbish”, and stated that the meeting was just a “catch up”.[71]On 3 November 2017, the Claimant met with Mr. Andrews. Initially, he was waiting for Ms. Lee, but then decided to start the meeting. He informed the Claimant that due to budget cuts the role would be frozen and her contract would terminate. He said that the Claimant had worked really hard and was amazing. The Claimant was asked to stay to end of November to tie up certain things. The Respondent could have had the agency contract terminated on one week’s notice.[72]The Claimant had a further meeting with Mr. Andrews on 14 November 2017. Notes of this meeting are at p.213 and following pages. Matters discussed at this meeting included the letter of termination that the Claimant had received (p.204), which upset her because she did not know what it was saying, because it suggested that her performance may be in issue.[73]From her evidence, the Claimant was upset because of how the termination was handled, with her invited in for catch up, then being misled over the phone on 1 November 2017 as to the purpose of meeting on 3 November 2017, and upset further by the letter prepared for the DWP. When did the Respondent make the decision to terminate the agency assignment?[74]A key factual dispute in this case is when the Respondent made the decision to terminate the agency agreement.[75]We have carefully considered the Respondent’s evidence about events leading up to the Claimant’s termination. We found that they did not discover that the Claimant was pregnant until the Claimant informed them on 9 October 2017. The Claimant had not mentioned it to her managers before, only to other colleagues.[76]In the context of this case, where the chronology is important (which is apparent from the Preliminary Hearing summary), it is striking that there is no date given in either of the Respondent’s witness statements nor in the ET3 as to when the decision to dismiss was made. Moreover, it is striking that there are no minutes or documentary records of this decision or the process by which it was reached. Given that Respondent is a local authority, and as such is required to act reasonably and may be required to give reasons for its decisions, we found this so unusual as to require a cogent explanation.[77]Moreover, the ET 3, para 10, was inconsistent with the evidence as a whole. There was never any “expression of concern” to the Claimant. Both Ms. Lee and Mr. Andrews had provided information for the ET3 to be compiled. Again, this required explanation.[78]Mr. Andrews and Ms. Lee gave inconsistent accounts of events surrounding the decision to terminate the Claimant’s engagement.[79]The inference from paragraph 3 of the supplemental witness statement of Mr. Andrews is that the decision to end the role was made in mid-September. This paragraph stated: “Following clarification of budget from finance in Sept, Lorna and I had agreed that the …role was untenable due to lack of income generated. We were planning to implement decision shortly afterwards”[80]In cross-examination, Mr. Andrews stated the decision to suspend the assignment was made in mid-September, in the week after the email of 8 September 2017 from Mr. Robinson p.146. His evidence was that he attended a budget meeting with Mr. Robinson; he alleged that the decision was made between himself and Ms. Lee at that meeting. There were no documents from or minutes of that meeting nor any evidence from Mr. Robinson.[81]Ms. Lee said that she attended the budget meeting with Mr. Robinson alone, because Mr. Andrews was on holiday.[82]We accepted her evidence that Mr. Andrews went on holiday from 18 September 2017. We found that the meeting with Rohan Robinson took place on 14 September 2017, and that she attended it alone.[83]Mr. Andrews must have been back by 29 September 2017, because his evidence was that he arranged contract extensions for the Claimant on Matrix, one of which was on that date.[84]Ms. Lee’s oral evidence was that she had one to one meetings with Mr. Andrews on 4 and 5 October after his return from holiday, and that the decision to terminate the Claimant’s engagement was made on either 4 or 5 October.[85]Although we found that Ms. Lee met Mr. Andrews on those dates, and that she met him regularly for meetings thereafter, we found that the decision to terminate was not made on 4 or 5 October. This was for the following reasons:85.1 As explained, there is no record of when the decision to terminate was made, which we would have expected, given this is a local authority, and given this worker was promised her job was safe to the end of March 2018.85.2 It is striking that the Respondent’s witness statements do not identify the date on which the decision was reached – although the Supplemental witness statement of Mr. Andrews suggests it is in September 2017.85.3 There is inconsistency in the oral evidence of Mr. Andrews and Ms. Lee as to when the decision was made, which we have set out. We have concluded that their evidence as to when the decision was made to terminate was unreliable and unlikely to be correct.85.4 If there was an ongoing conversation with Mr. Andrews after the 14 September 2017 budget meeting, as Ms. Lee contended, and budgetary pressure requiring termination of the role, it is unlikely that the Claimant’s contract would have been extended again on 29 September 2017 (p.147a) for the period to 31 October 2017, without any discussion as to whether there should be an extension at all. There is no record of such a discussion, which is inconceivable, had one taken place.[86]Having considered the totality of the evidence, although the Employment Tribunal is unable to specify precisely when the decision to terminate was made, the Employment Tribunal concluded that the Respondent’s managers knew the Claimant was pregnant before the decision to terminate was made. In other words, the decision to terminate was likely to have been made after 9 October 2017 and before the email to Human Resources on 26 October 2017. This is for the following reasons:86.1 This is an inference drawn from the above four points in paragraph 85.86.2 If the decision to dismiss was made in mid-September, or on 4 or 5 October, there is a striking delay until Mr. Andrews took Human Resources advice. Advice was sought by email on 26 October 2017 (p.167A). Mr. Andrews’s evidence was that the delay was due to him checking what he needed to do by consulting Matrix; but he conceded that this would have taken around five minutes.86.3 Moreover, the email states that the “matter is quiet urgent”. It is clearly meant to say that “the matter is quite urgent”. This is inconsistent with the Respondent’s case, because their case (from Ms. Lee’s evidence) is that the decision was made at least three weeks earlier or (from Mr. Andrews’s evidence) six weeks earlier. In any event, it is difficult to understand how it was “quite urgent” given the time that had elapsed. Mr. Andrews could give no cogent explanation for the delay, stating that he “would want a bit of time to speak with HR and digest, wanted to get their advice”.86.4 In evidence, Ms. Lee stated that she wanted “to think with her pen in her hand”. It is odd that there is no written evidence of such a decision in this context, if it was taken before 9 October 2017. We inferred from this and the lack of any minutes recording the decision that the Respondent’s witnesses deliberately decided not to record the reasons for the decision in writing because they wished to conceal when the decision to terminate was made. The inference is that this was because the full reasons included a pregnancy-related reason.[87]The Claimant asked for written reasons for termination, as requested by the DWP. Mr. Andrews prepared a letter p.204 which included: “the Sponsorship Officer position will be suspended and re-evaluated as the role is not fully meeting service requirements for the department”.[88]In the meeting between the Claimant and Mr. Andrews on 14 November 2017, Mr. Andrews informed the Claimant that Ms. Lee had “decided to get rid of the post”. In evidence, Mr. Andrews said it was a joint decision to end the assignment.[89]In the absence of any minutes or documentary record, as to when the decision was made by the Respondent or by whom, the Employment Tribunal considered that it was unrealistic for the Claimant to pinpoint how the decision to dismiss was made or by whom exactly out of the two managers in this case. The Claimant’s evidence was that it was a decision made by Mr. Andrews or his manager, Ms. Lee.[90]We found that Ms. Lee made the decision to dismiss, albeit that she did this after consultation with Mr. Andrews. It was not a joint decision. Having seen the Respondent’s witnesses give evidence, the Employment Tribunal concluded that Ms. Lee was a strong personality, she was the more senior manager and she was the more experienced local authority manager; and given these points, we found it was unlikely that this would have been a joint decision. Submissions[91]The Employment Tribunal read submissions prepared by both Counsel. These were amplified in oral submissions. Neither party requested more time; each had roughly 35 minutes, with Mr. Keen making some further submissions in reply.[92]It is not necessary, nor would it be proportionate, to refer to all the submissions made, particularly when they were set out at length. Suffice to say that each submission was taken into account.[93]Mr. Keen argued that this was a “reason why” case, and that there was no inherently discriminatory factor. It had not been put to the Respondent’s witnesses that they were prejudiced against pregnant women.[94]Furthermore, Mr. Keen argued that if there had been a “U turn” there had been a reason for it, shown by the emails of 24 August 2017, 29 August 2017 and 8 September 2017. He contended this showed that the viability of the role was being considered, and that the explanations of the Respondent’s witnesses should be accepted.[95]Ms. Robertson referred to the Pregnant Workers Directive. She relied on Article 10(2), which provided that the Respondent must cite substantiated grounds for dismissal in writing.[96]In addition, Ms. Robertson relied on Anya and Talbot to argue that part of the inherent probabilities is what would be expected of a local authority in this case, namely documentary evidence of date and reasons for termination. Conclusions:[97]Applying our findings of fact and the law to the issues before us, we have reached the following conclusions. Stage 1: Has “something more” been proved so as to shift the burden of proof?[98]Through the drawing of inferences, we have made findings of fact on the central factual issues in this case.[99]Adopting the approach in Madarassy, the “something more” in this case arises from a number of features of the evidence:99.1 The lack of documentary evidence, which we expected to see, as to the date that the decision to terminate was made and a contemporaneous note or record (however brief) of the reasons for termination.99.2 The rejection of the Respondent’s inconsistent evidence as to when the decision to terminate was made. First, there was the lack of the date of the decision to terminate the assignment in either the ET3 or the witness statement evidence. Second, the evidence of the Respondent’s witnesses around when the decision to terminate was made, which is a fundamental question in the case, was inconsistent and unreliable.99.3 The Respondent’s witnesses both denied knowing of the pregnancy when the decision to dismiss was made. We have concluded that account is incorrect. Taken with the other matters to which we have referred at this stage, or taken alone, this is “something more”.99.4 The Claimant was assured in May 2017 that she would remain in post until the end of March 2018. The emails of 5 May 2017 from both Mr. Andrews and Ms. Lee represented that there was funding for the role until end March 2018.99.5 The only proviso to the role continuing was that it was subject to performance reviews. The Claimant’s performance throughout her assignment was not complained of, and she had brought in new sponsorship when her male predecessor had not (but his role had not been terminated). She was encouraged to stay on after the expiry of the first three months and told in November 2017 that the termination was not to do with her performance and that she performed well. This suggested a hypothetical male comparator, insofar as one could be constructed, would not have been terminated prior to the end of the financial year.99.6 The ET3, para 10, was incorrect and inconsistent with the evidence as a whole. There was no explanation for this which was inconsistent given that both Respondent witnesses had contributed to the pleading.99.7 The shifting reasons for the decision to terminate explained below.[100]We find that in these circumstances, the burden of proof did shift to the Respondent to provide a cogent explanation for the termination of the assignment. Stage 2: Has the burden of proof been discharged? Why was the decision to terminate the Claimant’s engagement made?[101]We rejected the explanation that budgetary pressure was the sole reason for the termination. The evidence in support of the Respondent’s case was far from cogent: it involved inconsistent and unreliable evidence and a striking lack of documentation, particularly given that this is a local authority.[102]On a balance of probabilities, whilst we accept that there were pressures on Ms. Lee’s staffing budget, we find that the fact that the Claimant was pregnant was a factor in the decision to terminate her assignment. We found this fact by drawing inferences from the following primary facts and matters:102.1 The Respondent’s witnesses knew that the Claimant was pregnant when they made the decision to terminate, as explained above, despite their protestations that they did not know this.102.2 There was no reliable evidence the role was to be self-funding in 2017- 18. Apart from our findings above, a requirement for the role to be selffunding in 2017-18 would not be a rational approach, given that there was no challenge to the Claimant’s evidence that the Respondent lacked assets to gain sponsorship and that there was a need to build relationships and trust over time, and given the point of the annual cycle reached (towards the end of the summer programme).102.3 The Claimant had raised new sponsorship in cash and in kind, as well as performing other valuable work (such as the creation of ‘decks’), as explained above. The Claimant had been told at the outset not to worry about the targets and that the sponsorship role had never made any money in the past.102.4 Mr. Keen argued that if there was a U-turn, there was a reason for it, namely budgetary pressures because the amount raised in sponsorship would not cover the cost of the role. The difficulty with this argument is that:102.4.1 If there was such pressure, it is unlikely that the Claimant would not have been warned of the risks to her role prior to announcing her pregnancy, particularly because she was given the assurances in May 2017 that the role would continue to end March 2018;102.4.2 If there was such budgetary pressure, the decision to extend the contract again on 27 September 2017 is inexplicable.102.4.3 If there was such budgetary pressure, there was no cogent explanation for the delay in getting HR advice about termination.102.4.4 The Claimant had brought in new sponsorship when her male predecessor had not (but his role had not been terminated).102.4.5 We accepted Ms. Robertson’s submissions that the reason for the termination changed. The various interpretations given of the reasons were not consistent. In particular:102.4.5.1 The ET3 p.29, para 26, states that the Respondent had to terminate the Claimant’s assignment due to budget constraints and suspend the role.102.4.5.2 In the discussion between Mr. Andrews and Carmel Murray HR, of 26 October 2017, he stated that the role was going to be changed and that they did not want to extend the assignment. He did not refer to the role being suspended.102.4.5.3 At the meeting on 3 November 2017, the Claimant was informed that due to budget cuts the role would be frozen.102.4.5.4 The written reasons for termination, in the letter at p.204 state that: “the Sponsorship Officer position will be suspended and re-evaluated as the role is not fully meeting service requirements for the department”.Conclusion
[103]The complaint of pregnancy discrimination under section 18 Equality Act 2010 is upheld.Conclusion
[1]This application to adduce further evidence was made after the Claimant closed her case and Mr. Andrews had completed his evidence. It was made on the second day of the hearing at 13:45 today.[2]The application of the Respondent was:2.1 To adduce further evidence in the form of the diary of Mr. Andrews and recall him to give evidence, particularly an allegation that he was on holiday from 11 September 2017 to about the end of September 2017, and then his first one-to-one with Lorna Lee was on 4 October 2017. We have looked at the diary of Mr. Andrews.2.2 To adduce further evidence in the form of the electronic diary of Ms. Lee and adduce evidence from Ms. Lee on this. It was argued that these diaries will show dates and times of meetings and that this is highly relevant.[3]We considered the Overriding Objective at Rule 2, ET Rules of Procedure: “The Overriding Objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly.”[4]Under fairness, we have considered the chronology:4.1 On 20.4.18, a Claim was presented. A response was filed.4.2 On 6.6.18, a case management order was made.4.3 On 16.7.18, a Preliminary Hearing (Closed) took place identifying issues.4.4 On 22.8.18 Disclosure was due under the case management order.4.5 On 15 October 2018, there was to be witness statement exchange.[5]It was fundamentally unfair to the Claimant to admit the documents and evidence sought because:5.1 The timing of the application. This was an attempt to adduce further evidence after close of the Claimant’s case and after Mr. Andrews completed his evidence. It would be an opportunity to give Mr. Andrews a second bite of the cherry in terms of the timing issues. The Claimant relies on the alleged inconsistency of the Respondent’s case that the decision to terminate was made in mid-September 2017 and the Claimant was not informed until 3 November 17, after her managers were informed of the pregnancy on 9 October 2017.5.2 In breach of disclosure order, there has been a failure to disclose these documents. Fairness and ensuring the parties are on equal footing is maintained by compliance with orders and rules.5.3 There is no mention of the matters now referred to in the witness statement of Mr. Andrews. The case management order directed exchange of witness statements.5.4 There is no mention in the ET3 nor in the evidence of Mr. Andrews of the holidays or meetings now sought to be relied on. Mr. Andrews confirmed in evidence he had assisted in completion of the ET3.[6]We considered whether there would be unfairness to the Respondent in refusing the application:6.1 It was accepted by the Claimant that the evidence is relevant: but not so relevant that it should be admitted at this late stage.6.2 Relevance is determined by the pleaded case: there is no mention of holidays in the pleaded case nor in the witness statements, nor of any meeting on 4 October 2017 (between Ms Lee and Mr. Andrews).6.3 There is a mixed effect on the Respondent’s case if admitted: Mr. Andrews said he had a meeting with Ms. Lee in following week after email from Rohan Robinson at 8 September 2017, but now it is submitted that he was on holiday then.6.4 Checking diary of Mr. Andrews, this suggests he was on holiday only from 18 September 2017 to 26 September 2017. So on the face of the diary, this document is of marginal relevance.6.5 In respect of both the electronic diary evidence of Ms. Lee and Mr. Andrews’ hard copy diary, it is accepted that these do not include any minutes of meetings. The relevant factual issue is what was decided by whom and when. Mr. Andrews gave oral evidence about this and was cross-examined on it. Ms. Lee can give oral evidence and be crossexamined on it.[7]Refusing to admit the evidence is proportionate to the complexity and importance of the case. The issues are factual issues, to be determined from oral and documentary evidence that we have.[8]We have taken into account the factors of avoiding unnecessary formality and seeking flexibility.8.1 We decide that refusing this application is necessary in this case to maintain fairness and to maintain necessary formality – so each party can know case it faces and prepare accordingly after disclosure and witness statements.8.2 Flexibility does not involve endorsing egregious breaches of directions of the Employment Tribunal.[9]Admission of the evidence would delay conclusion of case, which would be unfair to the Claimant but also to Respondent. The case is listed for hearing liability and remedy if necessary. There would be a delay in the form of:9.1 Consideration of the documentary evidence by the Claimant and the Tribunal.9.2 Recall of witness Mr. Andrews for further examination in chief.9.3 Cross-examination of Mr. Andrews.9.4 Additional evidence from Ms. Lee – her electronic diary was not even available so could not be given to Counsel for Claimant at the Tribunal today.[10]It is likely that, if the application were permitted, the Tribunal would not be in a position to conclude all parts of the case (including remedy if necessary) on Tuesday 13 November. For all those reasons, we refuse the application.