Ms K Nasreen v Dr Malik T/a Malik Law Solicitors (in intervention): 3201138/2018
EMPLOYMENT TRIBUNALS
Case No 3201138/2018
Between
Ms K NasreenClaimantDr Malik T/a Malik Law Solicitors (in intervention)Respondent
Before
Employment Judge JonesIn person for claimantNo appearance and no representation for respondentDate 13 January 2021
REASONS
[1]The Claimant made four complaints. She complained of unfair dismissal, sex discrimination and unlawful deduction of wages in respect of outstanding wages and holiday pay.[2]The Claimant attended the hearing and gave sworn evidence. There was no representation from the Respondent or the intervener. The Tribunal considered all the evidence before it and made the following Findings of Fact.
Findings of Fact
[3]The Claimant confirmed that she was employed by Malik Law Chambers which was owned by Dr Malik. The office was based at 233 Bethnal Green Road, London, E2 6AB. The Respondent failed to file any ET3 Response to this Claim.[4]As we had not received an ET3 from the Respondent, the Tribunal conducted a company search which confirmed that Malik Law Chambers operated at 3 points across England - Bethnal Green Road, Southall, and Birmingham. That is in accordance with the Claimant’s evidence. The company search also revealed that Dr Malik, was a manager of the firm called Malik Law Chambers operating at 233 Bethnal Green Road, London, 239 The Broadway, Southall and 393-395 Soho Road, Birmingham. The search stated that the firm had failed to comply with SRA Principles 2011 and the SRA decided that there was reason to suspect dishonesty on the part of Dr Akbar Ali Malik and Mr Imtiaz Ali Malik, the firm’s managers in relation to the firm’s business. That confirmed that Dr Malik was one of the firm’s managers.[5]When the claim form was served on the Respondent the Tribunal also enclosed a Notice of a Preliminary Hearing. The hearing was listed for Friday 12 October 2018 at 10am. Dr Malik did not attend the hearing or complete the Response form but he did receive the documents as he completed an Agenda form for the preliminary hearing.[6]In the Agenda form he stated that he had not been the Claimant’s employer but that the firm had been run by Halima Malik and Mr I A Malik. He stated that he was not I A Malik. He attached a letter dated 12 September 2017 from HMRC to Ms Halima and Mr I A Malik at 223 Bethnal Green Road. The letter described itself as a ‘Notice to pay amount due: £857.83’. The letter did not refer to and was not addressed to the firm Malik Law Chambers.[7]In the statement attached to the Agenda form he applied for the claim to be struck out on the basis that he was a consultant to the firm and not a partner and that the claim was malicious as the Claimant had only brought the claim against him. He confirmed that he had worked for the firm as a consultant but stated that he had begun working there after in February 2018, which was long after the Claimant left her job just before Christmas 2017. He also stated that he had not worked since April 2018 and that he was unwell and on medication due to ill health and that the claim should be struck out with costs.[8]The Tribunal considered whether to make a default judgment under Rule 21 of the Employment Tribunals Rule of Procedure 2013 which gives the Tribunal the power to make a default judgment where no response has been presented within the time limit and no application has been received from the Respondent for an extension of time in which to present a response. The Tribunal considered that it was appropriate to wait until the hearing as Dr Malik could attend and make applications to the court.[9]Dr Malik did not attend the preliminary hearing. The Tribunal decided to it would be in the interests of justice, saving time and expense and in keeping with the overriding objective to determine the claim that day rather than adjourn to another day.[10]The Claimant gave sworn evidence at the hearing in support of her claim.[11]In the hearing, the Claimant confirmed that Dr Akbar Malik was one of the owners of the practice known as Malik Law chambers where she had been employed as a receptionist.[12]In January 2018, the Claimant who was pregnant became ill with pregnancyrelated illness and was unable to attend work. The Claimant provided the Respondent’s with a medical certificate advising her not to return to work for a period of at least 14 days, given her pregnancy related illness. The Claimant was off sick for approximately four weeks. In mid-February, when her husband contacted the Practice, he was told that the Claimant was no longer required.[13]The Claimant’s evidence was that she continued to send in medical certificates and messages to the Respondent. She made several calls, attempting to speak to Dr Malik but received no reply and her calls went unanswered. The Claimant’s last medical certificate provided to the Respondent was for the period of 10 March to 28 March 2018. The Claimant’s husband hand delivered the medical certificates to the Practice and he was told that the Claimant was no longer needed by the Practice.[14]The Claimant sought advice from the Citizen’s Advice Bureau who contacted the Respondent. The CAB was told by email and by telephone that the Claimant had been dismissed because she took unauthorised holidays in 2017. This was denied by the Claimant.[15]The Claimant’s evidence was that the Respondent refused to communicate with the Citizen’s Advice Bureau thereafter and she began the ACAS conciliation process. ACAS also tried unsuccessfully to contact the Respondent.[16]The Claimant informed the Tribunal that she was aware that the business was intervened by the Law society on 18 April and the Practice is no longer is in operation. The Claimant believes that Respondent has ceased trading.[17]The Claimant’s evidence was that she worked for the Respondent from 2014 to 2018.[18]The Claimant’s evidence was that she was not paid for the last four weeks of her employment, from the date on which she informed the Respondent that she was ill on 22 January 2018. The Claimant brought payslips to the hearing and the Tribunal noted their contents. The payslips show that the Claimant’s wages were £1140.84 on 2 January 2018 and £1328.56 on 13 November. She was also paid the sum of £1328.56 in August.[19]The Claimant complains that she is owed 4 days holiday pay.
Law
[20]The Tribunal considered the following law: - 20.1. Section 13 Employment Rights Act 1996; which confirms that wages should not be deducted from an employee unless authorised by a statue or under a signed agreement with the employee. 20.2. Section 13 of the Equality Act 2010 states that less favourable treatment to an employee on the grounds of gender is direct sex discrimination which is prohibited. Less favourable treatment towards a pregnant woman for reasons related to that pregnancy is discrimination contrary to section 18 of the Equality Act 2010. 20.3. Section 124 of the Equality Act 2010 makes provision for an employee to be compensated for the hurt feelings and the losses that arise from being treated less favourably on the grounds of the protected characteristics of sex. 20.4. The Working Time Regulations 1998 give all workers the right to four weeks annual leave and to be paid in lieu of any annual leave accrued at the time of their dismissal that had not been used. Judgment OUTSTANDING WAGES[21]The Claimant was not paid for the last month of employment. She began her sickness on 11 January. She was told in mid-February that she was no longer required. The Respondent followed no procedure in dismissing the Claimant. There were no meetings and the Tribunal was not shown any letters from the Respondent informing her of its decision to dismiss her or why.[22]In this Tribunal’s judgment the Claimant is entitled to her wages for the month of January. In this Tribunals judgment, taking the average of the three months’ payslips that the Claimant presented today, it is likely that a month’s wages was likely to be approximately £1,356.00. The Respondent is ordered to pay the Claimant’s wage for her final month of employment of £1,356.00. HOLIDAY PAY[23]The Claimant accrued four days holiday, which is outstanding to her. The Respondent is ordered to pay to the Claimant the sum of £156.00 in relation to her outstanding existing holiday entitlement. UNFAIR DISMISSAL[24]It is in this Tribunals judgment that the Respondent dismissed the Claimant because she was sick and unable to work because of pregnancy related illness. The Claimant would have been employed for another two months before the firm was intervened in April and the business shutdown. The Respondent ceased trading in April. The Tribunal therefore awards the Claimant two months wages equal £1,356.00 x 2 = £2,712.00. PREGNANCY/OR MATERNITY DISCRIMINATION[25]The Claimant was off sick because of pregnancy-related illness. The Claimant remained off sick for four weeks because of pregnancy-related illness.[26]It is this Tribunal’s judgment that there was no other reason put forward for the Claimant’s dismissal. It is clear that she was dismissed as she was not allowed to return to work when she wished to do so. Her husband was told that her employment had been terminated.[27]It is this Tribunal’s judgment that the Claimant was treated unfavourably because of illness suffered by her as a result of her pregnancy. She was dismissed because of her pregnancy-related illness. Her dismissal was a discriminatory dismissal.[28]The Respondent treated the Claimant less favourably for a reason related to her pregnancy. The Claimant’s feelings were hurt by her dismissal and her treatment. The Claimant is awarded £500 as remedy for injury to feelings that she experienced because of the pregnancy-related discrimination.[29]The Respondent is ordered to pay the Claimant the total sum of £1,356 + £156 + £2,712 + £500 = £4,724.00 forthwith to the Claimant.
Law
[1]The case was listed for final hearing to begin on 4 February 2021. The Regional Employment Judge ordered that the hearing be converted to a preliminary hearing to assess the readiness of the case. That hearing came before EJ Russell, who summarised the procedural history in some detail. We do not repeat that history here, save to the following extent.[2]There had previously been an issue about the service of the claim form. On 9 December 2019, SCS Law wrote to the Tribunal. They stated that they acted for R1 (Dr Malik) and attached his ET3 and Grounds of Resistance. They then wrote that there had been a serious procedural flaw: that at no stage had the claim been served on R2, as a partnership, ‘and at no stage has the partnership been granted the opportunity to file a response to the claim against them’. It is plain from this that the ET3 presented on 9 December 2019, was lodged solely on behalf of R1, not R2. It is the only ET3 which has been presented on Dr Malik’s behalf.[3]At the hearing on 4 February 2021, EJ Russell clarified the identity of the Respondents, and the claims alleged against each of them. She confirmed that the complaint of unfair dismissal, unauthorised deductions from wages and unpaid holiday pay were pursued only against R2, the partners trading as Malik Law Chambers; the claims of discrimination because of sex and/or pregnancy or maternity leave were pursued against both Respondents. She wrote at paras 6-8: ‘Following that short adjournment, it appears that Malik Law Chambers was a Partnership Act 1890 partnership rather than a limited liability partnership or limited liability company. Mr Ross’ instructions from the litigation friend were that the partners of the Second Respondent were Ms Maria Ahmed, Mr Om Parkash and Mr Imtiaz Ali. The Companies House register shows a company called Malik Law Limited, whose records show that the First Respondent was a director until 1 May 2020 and whose current director is Mr Adil Ali Akbar. Mr Ross’ instructions from the litigation friend are that nothing is known of the company or the named director. It is not the First Respondent’s case that Malik Law Limited was the Claimant’s employer. I note that in an Agenda completed by the First Respondent for a Preliminary Hearing in October 2018, he stated that the partners were Mr I A Malik and Ms Halima Malik. For his part, Mr Schuscheim noted that the SRA had previously taken the position that the First Respondent and Mr Imtiaz Ali were the relevant partners of Malik Law Chambers. Whilst there is still a surprising degree of uncertainty about the partners of Malik Law Chambers at the relevant time, I am satisfied that it is in the interests of justice that each of those named by the First Respondent through his litigation friend be included as part of the list of partners trading as the Second Respondent. If once served with the claim form, one of those named believes that they have been incorrectly included, they can set out their reasons why in the Response. If the reasons are well-founded, they can be dismissed as a party. At paragraph 5 of his Response presented on 9 December 2019, the First Respondent avers that he became a partner in February 2018. The Claimant’s case is that she continued to provide medical certificates for the period until 28 March 2018. The First Respondent’s case is that the Claimant’s employment terminated in 2017. The effective date of termination is therefore in issue between the parties: if it was 2017 it appears that the First Respondent was not a partner; if in March 2018, it appears that he was. Accordingly, I consider it necessary for the First Respondent also to be named as one of the partners trading as the Second Respondent partnership.’[4]There was also an issue about Dr Malik’s ability of to participate in the proceedings, which the Judge set out at paragraphs 9-13: ‘Mr Ross informed me that the bankruptcy order was annulled on 27 August 2020 and a copy of the High Court Order confirming the same was provided to the Tribunal. Upon instruction from the litigation friend, Mr Ross stated that the High Court proceedings had been stayed until July 2021 so that further medical evidence could be obtained. A copy of the Order had been requested from the litigation friend appointed in those proceedings (another son of the First Respondent, not Mr Adil Malik) and would be provided. Pragmatically, Mr Schuscheim agreed with my observation that it would be a bold Tribunal which pressed on with a final hearing where the High Court had apparently accepted that there was an issue about the First Respondent’s ability to participate in legal proceedings due to his health. In all of the circumstances, I concluded that it would not be in the interests of justice for the hearing to proceed in circumstances where the High Court stay Order gave rise to real doubt about the First Respondent’s ability to participate in a hearing. Whilst a copy of the Order was not available, on instruction Mr Ross confirmed that it existed, a copy was being obtained and would be provided to the Tribunal. I consider that I am able to rely upon the assertions of Counsel who has a professional duty not to mislead the Tribunal and I postponed this hearing. It will not be relisted until the position is more clear about the First Respondent’s capacity to conduct litigation, as determined by the High Court in the SRA proceedings. Given the history of the case and the importance of the High Court Order as the basis for the postponement, I have made an Order that a copy must be provided to the Tribunal by 4pm on 19 February 2021. I did not consider it proportionate to make this in the form of an Unless Order, however, in the event of non-compliance, a possible strike out of the Response will be considered at an open Preliminary Hearing which I have listed for 1 March 2021. If the First Respondent fails to comply with this Order or seek a variation, setting out valid reasons for an extension of time, it may result in the Tribunal deciding to strike out the Response or imposing some other sanction as appropriate.’[5]On 19 February 2021, R1’s representatives wrote to the Tribunal attaching a copy of the High Court order, which had been referred to at the hearing before EJ Russell.[6]A PH was listed on 1 March 2021 and came before EJ Jones. The Judge recorded at paras 8 and 9 of her order: ‘On 19 February, the First Respondent sent the Tribunal a copy of the order. It was not as had been described. It was made by Mr Justice Marcus Smith at the High Court and dated 14 December 2020. The High Court proceedings were not stayed as they are listed for a final hearing beginning at the end of June. The High Court order also stated that the issue of the First Respondent’s fitness to participate in and prepare for the substantive hearing would be determined at that hearing, to be listed with a time estimate of two days in the period 22-31 March 2021. The order included various case management orders to assist the parties in their preparation for the substantive hearing. One of those was that the Claimant attend an appointment with Dr Isaac for a further examination today, 1 March, from which a medical report would be produced.’[7]The Claimant’s representative invited the Tribunal to strike out R1’s response because it was different from the order that R1 had described to EJ Russell on the previous occasion. EJ Jones declined to do so for the following reasons (at paras 11 and 12): ‘Mr Ross confirmed that the information he gave to the Tribunal on 4 February came from the litigation friend who is not a lawyer and also not the litigation friend in relation to the High Court matter. It is likely that this was his understanding what Mr Justice Smith had ordered. The issue of the First Respondent’s capacity is still to be decided and any strikeout should wait until such time as that is done. I accepted that the core issue that caused EJ Russell to postpone the hearing on 4 February had not yet been determined. The First Respondent’s capacity is likely to be settled quite quickly, which should minimise any further delay in this matter being brought to hearing. This claim was issued in 2018 and it is not in the interests of justice or the overriding objective for it to continue to run in this way or for it not to be heard until 2022. In the circumstances I declined the application to strike out the First Respondent’s response.’[8]On 13 May 2021, the Claimant’s representative made an application for an unless order, that the First Respondent disclose the High Court order relating to his capacity. EJ Jones made an unless order on 8 June 2021 that the First Respondent send the document to the Tribunal and the Claimant by 22 June 2021, failing which his response would be struck out.[9]On 16 June 2021, R1’s solicitors, SCS. came off the record and notified the Tribunal that R1 would now be represented by Mr Zeeshan Mian (of Tan Chambers), Counsel who was instructed on a direct access basis.[10]On 16 June 2021, R1’s new legal representatives wrote to the Tribunal, stating that they did not have instructions to disclose the High Court order relating to his capacity, but did have instructions to disclose the medical report ‘which is of the same effect and should satisfy the Tribunal Judge that at the Respondent did not have mental capacity in the past’.[11]On 21 June 2021 Ms Mehak Tariq of Tan Chambers wrote to the Tribunal in the same terms, adding that ‘I also have instructions that the Respondent is now capable to represent himself in this claim’. On 28 June 2021 the Claimant’s representatives wrote to the Tribunal asking that it confirmed that R1’s response was struck out because he had not complied with the unless order. On 23 July 2021, the Tribunal wrote to the parties confirming that R1’s response was struck out.[12]On 17 August 2021, R1 representative made an application for relief from sanction. On 13 October 2021 EJ Jones refused the application because it was out of time.[13]On 13 October 2021, the claim form was served on the individuals who the Tribunal had been informed were the four partners of R2.[14]On 15 October 2021 the Claimant wrote to the Tribunal pointing out that there were errors in the correspondence in relation to which of the Respondents’ responses had been struck out.[15]On 14 December 2021, EJ Jones confirmed that the confirmation of dismissal was in relation to R1’s defence of the proceedings and refused again to grant relief from sanction.[16]On 14 December 2021 Mr Parkash presented his ET3. He stated that he was not a director or owner of R2. On 18 December 2021 Ms Ahmed presented her ET3, also stating that her employment ended on 30 November 2017, and that Dr Malik and Mr Ali were the sole owners of Malik Law Chambers and her employers. No ET3 was received from Dr Malik or Mr Ali, in their capacity as partners in R2.[17]On 25 November 2021, Dr Malik lodged an appeal with the EAT against the decision not to grant relief from sanction.[18]On 16 December 2021, EJ Jones wrote to the Claimant asking if she wished to continue the proceedings against Ms Ahmed and Mr Parkash. She ordered the Claimant to provide a witness statement setting out her complaint of pregnancy and maternity discrimination, attaching a schedule of loss and copies of other relevant documents.[19]On 23 December 2021, R1’s representative applied for a postponement of the January 2022 hearing, on the grounds that there was a pending appeal. On 31 December 2021 EJ Jones refused the application, copying the document to the other partners, including Mr Ali, confirming that the hearing would proceed on 11 January 2022.
The hearing
[20]The Claimant and her representative, Mr Schuscheim, attended the hearing. In the light of the information provided by Ms Ahmed and Mr Parkash in their ET3s, at the beginning of this hearing, Mr Schuscheim was instructed that the Claimant consented to the removal of those individuals as parties to the proceedings.[21]Neither Dr Malik nor Mr Ali were present, and there was no representation. We adjourned the hearing, while the Tribunal’s clerk attempted to contact Dr Malik at the address of his representatives, Tan Chambers. The Tribunal did not have a phone number or email address for Mr Ali, only a postal address, thus it was not practicable to make further enquiries of him. The Tribunal clerk was told (by Mr Mazher Ali) that neither Ms Tariq, whose name was on much of the correspondence, nor Mr Mian was available. Mr Ali agreed to pass on messages. On the Judge’s instruction the clerk sent an email to the representatives: ‘The hearing will resume at 2p.m. today. If the Respondents are not present, or represented, and no satisfactory explanation is provided for the non-attendance, the Tribunal will consider whether the hearing should go ahead in their absence, pursuant to rule 47.’[22]Nothing further was received from the representatives by the time the hearing resumed at 2 p.m. Mr Shuscheim made an application under rule 47 for the hearing to proceed in the absence of Dr Malik and Mr Ali. Just as he was concluding that application, the Tribunal received an email from Mr Mian to the Tribunal’s clerk stating: ‘I have just received your email at 14:18. I understood that this trial was adjourned due to Respondent i.e. Dr Malik’s pending appeal against the Order. I can arrive at Tribunal by 3pm. Could you kindly indicate if this is acceptable?’[23]In fact, the Tribunal file showed that the email refusing the postponement had been sent directly to Mr Mian, to the same email address from which he had just sent the above email, on 31 December 2021. When he attended the hearing, at shortly thereafter, Mr Mian gave an explanation for this contradiction, which was as follows: that his regular paralegal was away on leave, and another paralegal had come in to cover for him and had informed him that the hearing had been postponed. The Judge asked him if he had asked the paralegal to show him the communication from the Tribunal in which that decision was recorded. He confirmed that he had not. We found his explanation to be highly unsatisfactory.[24]Mr Mian confirmed that he was only representing R1, he was not representing Mr Ali, and that Dr Malik would not be attending the hearing.[25]The Tribunal then rose and deliberated on the application under rule 47 in relation to Dr Ali.[26]Rule 47 provides: ‘If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.’[27]We had regard to the Court of Appeal case of Roberts v Skelmersdale College [2004] IRLR 69. Although it was decided under the old rules, there is sufficient similarity between the two rules that it remains good law. The rule confers a very wide discretion, which includes a discretion to proceed with the hearing in the absence of a party. Before making the decision, we should have regard to the information referred to in the rule.[28]R1 was now represented at the hearing through his Counsel, Mr Mian. We have decided that it is just to proceed with the hearing in the absence of Mr Ali. He was copied into a letter from the Tribunal of 16 December 2021, which stated in terms that the matter was listed for hearing from 11 January 2022 and that the Tribunal would make judgments on liability and remedy at that hearing. If Mr Ali was not already aware of the hearing, we are satisfied that this letter put him squarely on notice of it. If he required any further information, he could have requested it from the Tribunal. He took no steps to do so, nor did he make an application for a postponement or otherwise signal that he was not able to attend. That is consistent with the fact that he had not presented an ET3 and had taken no part in the proceedings whatsoever. Given that he did not present a response, his ability to participate in the hearing would have been subject to the discretion of the Tribunal in any event.[29]We also considered the extent to which Dr Malik ought to be permitted to participate in this hearing. We have concluded that he should not be permitted to participate at the liability stage at all: in his capacity as R1, his response has been struck out; in his capacity as one of the partners of R2, he had not presented a response and so is in the same position as Mr Ali in that respect. That he was aware of this hearing is apparent from the fact that he instructed his representatives to apply for it to be postponed, an application which was refused. He is entitled to attend the hearing but has elected not to do so.[30]We concluded that we would proceed with the hearing and would determine liability only. Should the Claimant succeed in any of her claims, we would list a separate remedy hearing as soon as practicable. At that stage we would consider whether to permit the Respondents to participate in that hearing, whether by way of evidence and/or submissions. In reaching that conclusion we had regard to the guidance in Office Equipment Systems Ltd v Hughes [2019] ICR 201, in which the Court of Appeal held that in cases where a more substantial remedy is sought, a separate remedies hearing will be appropriate; only in exceptional circumstances would it then be justified to exclude the Respondent from participation in an oral hearing.[31]At the beginning of the second day of the hearing, Mr Zian informed the Tribunal that he had been instructed by Dr Malik not to continue to attend the hearing. He drew our attention to a letter which he had written to the Tribunal that morning, which included the following [original format retained]: ‘I have been advised by Dr Malik to withdraw representation on the basis that he does not feel that being an observant gives him a fair trial (inability to cross examine the Claimant) particularly when Employment Appeal Tribunal is considering Dr Malik’s appeal against similar Order. Dr Malik maintains that he had objectively complied with the Order by providing medical evidence demonstrating that he had recovered and was fit to participate in trial. Secondly, Dr Malik had not employed the Respondent in any personal capacity therefore he could not have made parties to proceedings. Thirdly Dr Malik was partner at firm between 28 February 2018 and April 2018 (when firm was intervened) and he could not be added party to this Claim as partner of Malik Law Chambers.’[32]Mr Zian, who had attended only as a courtesy to the Tribunal, then left the hearing. We did not consider that the content of this letter materially changed the position. We did, however, notice that it confirmed that Dr Malik did not consider that he should have been added as a party to the claim in his capacity as a partner of R2. However, there was no explanation as to why he had not presented an ET3 in that capacity, or otherwise applied be removed as a named partner of R2 (as Ms Ahmed and Mr Parkash had done).[33]We had a bundle of some 300 pages and a witness statement from the Claimant. We heard evidence from her, in the course of which Mr Schuscheim took us to the relevant documents in the bundle. Following some questions from the Tribunal, Mr Schuscheim made concise and helpful oral closing submissions. We are grateful to him for his assistance throughout the hearing.
The issues
[34]Mr Schuscheim prepared a list of issues for the hearing. He clarified that no holiday pay claim is pursued. That claim was dismissed on withdrawal. After some discussion, the issues were agreed to be as follows: 1. Who was the Claimant’s employer? The Claimant’s primary contention is that it was R1. In the alternative, it was R2. 2. Was Dr Malik a partner of R2 at the material time? 3. Was Dr Malik an employee of R2 at all material times? Alternatively, was he an agent of R2, acting with R2’s authority within the meaning of ss.109 and 110 EqA, throughout the material period? 4. Was the Claimant dismissed? 5. If so, when was the Claimant dismissed? She contends that her last working day was 22 January 2018, and that she was dismissed on 28 February 2018. She contends that Dr Malik told her that ‘he no longer needed her’. 6. What was the reason for the dismissal? 7. The Claimant contends that it was pregnancy, and that it was an act of direct discrimination, contrary to s.18 EqA. In addition to financial losses, she claims injury to feelings and aggravated damages. 8. She also contends that the dismissal was unfair (s.94 ERA): the Respondent has not shown that the reason for the dismissal was for a potentially fair reason; further, the Claimant contends that no fair procedure was followed. 9. The Claimant contends that the Respondent made unauthorised deductions from her wages: she received no pay from 1 January 2018 up to her dismissal.
Findings of fact
[35]The Claimant commenced employment on 5 December 2014. She was interviewed, and appointed, by Dr Malik. The SRA found in a decision of 18 April 2018 that Dr Malik and Mr Ali were ‘the firm’s managers, in connection with the firm’s business’. Dr Malik was responsible for recruitment decisions and also decisions relating to the termination of employees within the firm. The Claimant was aware of at least two employees whom he dismissed while she worked for the firm.[36]The Claimant worked as a receptionist. She reported directly to Dr Malik throughout the material period. He was her line manager. The Claimant was not given a contract of employment. However, the terms of the employment arrangement were that she would be paid monthly at the beginning of each month in respect of the previous month. She had 28 days’ paid holidays, which she used to return home to Pakistan. Dr Malik also permitted her to take one month’s unpaid holiday. She worked 41 hours per week, six days a week (Monday to Friday 9 AM to 5:30 PM and Sunday 10 AM to 2 PM). She received a Christmas bonus each year of £100.[37]Before 2018 she had a good relationship with Dr Malik. He was flexible in permitting her to take time off. She had time off occasionally by reason of illness. She received no sick pay.[38]The Claimant became pregnant towards the end of December. It is clear from the medical records that she and her husband had been trying for a baby for some time. It is also apparent that, as soon as she had a positive pregnancy test, she sought medical advice. She began to have adverse symptoms, including severe sickness, almost immediately at the start of her pregnancy. At this stage in January 2018 she was still working and we accept her evidence that she told Dr Malik that she was pregnant and that she was already having some sickness, and might encounter further difficulties in the pregnancy and might need some time off. She continued to work until 20 January 2018 which was her last day of work.[39]From 21 January 2018 onwards, there are then a series of text messages from the Claimant to Dr Malik, informing him that she was very unwell and apologising that she was unable to come into work. These messages continue into February, the last of them being 22 February 2018. They do not refer specifically to pregnancy; we find that they did not need to because the Claimant had already warned Dr Malik earlier in the month that the she might experience health difficulties because of the pregnancy.[40]There is no evidence that Dr Malik replied to any of these text messages. We accept the Claimant’s evidence that she tried telephoning him but that he did not take her calls.[41]The Claimant’s husband went into the office on her behalf to speak to Dr Malik and to give him copies of the sick notes and other medical evidence, to demonstrate that the Claimant was genuinely ill. On the balance of probabilities, we find that that occurred on 19 February 2018.[42]That evidence included an emergency department discharge summary from Barts Health NHS Trust, dated 5 February 2018, which expressly said that the Claimant was seven weeks pregnant at that point and that the diagnosis was ‘hyperemesis’ (severe morning sickness). It also referred to ‘vomiting’.[43]We are satisfied that the Claimant’s husband reiterated to Dr Malik that the Claimant’s illness was pregnancy-related (that was the whole purpose of his visit). Dr Malik responded to his in a hostile fashion, was rude to him, refused to take copies of the medical evidence and told him that he did not need it because the Claimant ‘was no longer needed’. We are satisfied that these words were unambiguous and amounted to an express dismissal, especially in circumstances where Dr Malik had ceased all communication with the Claimant and responded in a hostile fashion to her husband’s attempts to communicate with him, refusing to accept medical evidence as to the reason for absence. That is also consistent with the fact that there was no further communication from Dr Malik or the firm asking the Claimant when she might be able to return to work. It was a summary dismissal.[44]On 22 February 2018 the Claimant sent Dr Malik by text a sicknote and a letter from the hospital, to which she attached the message ‘Sir my sicknote and hospital letter and no joking’. We find that she did this because of the experience her husband had had and the fact that she had learnt that she had been dismissed. She was hoping that Dr Malik might reconsider his decision. He did not do so.[45]The Claimant received a payment from R2 on 2 January 2018, which was in respect of her salary for December 2017; she also received a Christmas bonus £100 on 15 January 2018. No further payments were made to her after that date. She was not paid for her work in January 2018 up to the 20th of that month. In response to a question from the Tribunal as to the sick pay arrangements within the firm, the Claimant told us that sick pay was never paid. There was no suggestion that there was any entitlement to contractual sick pay. She was not paid statutory sick pay.[46]The Claimant’s bank statements record her salary being paid into her account by ‘Malik Law Chambers’.[47]EJ Russell recorded that Dr Malik said in his original ET3 that he ‘acted as a self-employed consultant solicitor until February 2018, when he joined the Second Respondent as a partner’. No specific date in February was given. Mr Mian asserted on instruction in his letter sent to the Tribunal on the second day of the hearing, that Dr Malik became a partner on 28 February 2018. If that was correct, there would undoubtedly have been documentary material which could have supported it. None was submitted to the Tribunal in support of that contention, or indeed at any point.[48]At the hearing before EJ Russell, R2 was identified as consisting of four partners, including Dr Malik, with the specific proviso that they could apply to have their names removed, if they were incorrectly included. Ms Ahmed and Mr Parkash did so apply and were removed; Dr Malik and Mr Ali did not. Both individuals had every opportunity to do so.[49]We think it implausible that Dr Malik would have elected to become a partner of R2 at the very time when it was in great difficulties and was placed into intervention within less than two months. We think it much more likely, on the balance of probabilities, that both Dr Malik and Mr Ali were partners in R2 at all material times and that Dr Malik sought to give a date in February 2018, in the hope that it might assist him in evading liability for the Claimant’s dismissal. The law Unfair dismissal
The law
[50]S.94 Employment Right Act 1996 (‘ERA’) provides that an employee with sufficient qualifying service has the right not to be unfairly dismissed by his employer.[51]S.98 ERA provides so far as relevant:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within the subsection if it: (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.(3) […](4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. Pregnancy discrimination[52]The EqA prohibits employers from treating an employee unfavourably (as opposed to less favourably) because of her pregnancy (s.18(2) EA 2010) or because she is exercising, is seeking to exercise or has exercised the right to maternity leave (s.18(4) EA 2010).[53]S.18 EqA provides: 18. Pregnancy and maternity discrimination: work cases(1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity.(2) A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably — (a) because of the pregnancy, or (b) because of illness suffered by her as a result of it.(3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave.(4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.(5) For the purposes of subsection (2), if the treatment of a woman is in implementation of a decision taken in the protected period, the treatment is to be regarded as occurring in that period (even if the implementation is not until after the end of that period).(6) The protected period, in relation to a woman's pregnancy, begins when the pregnancy begins, and ends— (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy; (b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy. […][54]Those provisions enact the decisions in Webb v Emo Air Cargo Ltd. (No.2) [1995] IRLR 645 HL). The House of Lords had referred the question of the proper comparator to the ECJ which held ([1994] IRLR 482 ECJ) that unfavourable treatment of a woman because she is pregnant is automatic sex discrimination without the need to compare the position of a woman with a man.[55]In order for a discrimination claim to succeed under s.18 EqA, the unfavourable treatment must be ‘because of’ the employee’s pregnancy or maternity leave. The meaning of this expression was considered in this context in Indigo Design Build and Management Ltd. V Martinez (UKEAT/0020/14/DM). HHJ Richardson referred to Onu v Akwiwu [2014] ICR 571, in which Lord Justice Underhill said: ‘What constitutes the “grounds” for a directly discriminatory act will vary according to the type of case. The paradigm is perhaps the case where the discriminator applies a rule or criterion which is inherently based on the protected characteristic. In such a case the criterion itself, or its application, plainly constitutes the grounds of the act complained of, and there is no need to look further. But there are other cases which do not involve the application of any inherently discriminatory criterion and where the discriminatory grounds consist in the fact that the protected characteristic has operated on the discriminator’s mind… so as to lead him to act in the way complained of. It does not have to be the only such factor: it is enough if it has had “a significant influence”. Nor need it be conscious: a subconscious motivation, if proved, will suffice.’ The burden of proof in discrimination cases[56]The burden of proof provisions are contained in s.136(1)-(3) EqA:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[57]The effect of these provisions was summarised by Underhill LJ in Base Childrenswear Ltd v Otshudi [2019] EWCA Civ 1648 at [18]: ‘It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy.1 He explained the two stages of the process required by the statute as follows:(1) At the first stage the Claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the Tribunal could conclude that the Respondent 'could have' committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal 'could conclude' that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination. 57. 'Could conclude' in section 63A(2) [of the Sex Discrimination Act 1975] must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. …”(2) If the Claimant proves a prima facie case the burden shifts to the Respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the Tribunal must uphold the discrimination claim.” 1 Madarassy v Nomura International plc [2007] ICR 867, CA He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.’ Agency under the Equality Act 2010[58]The agency provisions in the EqA are contained in ss.109 and 110 and provide as follows: 109 - Liability of employers and principals(1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer.(2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.(3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval. […] 110 - Liability of employees and agents A person (A) contravenes this section if— (a) A is an employee or agent, (b) A does something which, by virtue of section 109(1) or (2), is treated as having been done by A's employer or principal (as the case may be), and (c) the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be). (2) It does not matter whether, in any proceedings, the employer is found not to have contravened this Act by virtue of section 109(4). […][59]In Ministry of Defence v Kemeh [2014] ICR 625, the Court of Appeal held that common law principles apply when deciding whether there is a principal-agent relationship for the purposes of the predecessor provisions found in s.32(2) RRA. In doing so, it is necessary to show that a person is acting on behalf of another and with that other’s authority.[60]Although the decision in Kemeh was reached under the now-repealed provisions of the RRA, the Court of Appeal in Unite the Union v Nailard [2019] ICR 28 held that there were no grounds for giving s.109(2) EqA a different construction. The test of authority under s.109(2) is whether the discriminator was exercising authority conferred by the principal and not whether the principal had in fact authorised the discriminator to discriminate. 61. the EAT in Bungay v Saini EAT 0331/10 upheld an employment tribunal’s decision that two board members of an advice centre had been acting as its agents when they discriminated against two of the centre’s employees. The tribunal was entitled to find that since they were managing the centre as part of their authority as its directors, they were acting as its agents even though they performed their duties in a discriminatory manner. Unauthorised deduction from wages[62]Part 2, ss.13 to 27B of the Employment Rights Act 1996 Act (‘ERA’) set out the statutory basis for a claim of unauthorised deduction from wages.[63]An employer shall not make a deduction from wages of a worker employed by him, which are properly payable to the worker, unless the deduction is required or authorised to be made: by virtue of a statutory provision; a relevant provision of the worker’s contract; or the worker has previously signified in writing his agreement or consent to the making of the deduction. Any agreement or consent authorising the deduction from wages to be made must be entered into before the event giving rise to the deduction.
Conclusions
[64]We are satisfied that the Claimant’s employer was R2. That is consistent with such information as is available to us, including the Claimant’s bank statements, which record her salary being paid into her account by ‘Malik Law Chambers’. That is also consistent with the information provided by Ms Ahmed in her ET3 that, like the Claimant, she was an employee of Malik Law Chambers, whose owners were Dr Malik and Mr Ali. On the balance of probabilities, we think it unlikely that the Claimant was employed by Dr Malik as an individual.[65]R2 was vicariously liable for any acts of discrimination by R1, who we have already found was a partner in R2.[66]If we are wrong in our conclusion that Dr Malik was at all material times a partner in R2, we went on to consider whether he was an employee of R2 for the purposes of R2’s vicarious liability. That is not a question which we consider we are able to answer: partners in law firms may be employees or they may not. We did not have sufficient evidence to determine the question either way. Nor is it necessary to do so given our finding that Dr Malik was a partner in R2. As a partner in R2, the Claimant was entitled to bring proceedings against him as an individual, named Respondent to a claim of discrimination, whether or not she also brought proceedings against R2.[67]In any event, we would have no hesitation in finding that Dr Malik was an agent of R2. The SRA found in a decision of 18 April 2018 that Dr Malik and Mr Ali were ‘the firm’s managers, in connection with the firm’s business’. He was also the Claimant’s line manager throughout: it was he who gave her instructions on a day-to-day basis, who dealt with requests for annual leave, it was to him that she reported that she was sick. As a partner in the firm, the firm’s manager and the Claimant’s line manager, we are satisfied that he was at all times acting with the authority of R2, including when he dismissed her, and was an agent of R2 within the meaning of ss.109 and 110 EqA.[68]We have already found as a fact that the Claimant was summarily dismissed by Dr Malik on 19 February 2018. Before the Claimant became pregnant, and before she started to encounter pregnancy-related illness, she had had a good working relationship with Dr Malik. There was no evidence of any disciplinary or performance concerns whatsoever. We are satisfied that we are able to make a positive finding as to the reason why the Claimant was dismissed. We infer from all the evidence that his attitude to her changed when he realised that she was having a difficult pregnancy, which was giving rise to a protracted period of sickness absence and (inevitably) a period of maternity leave. This was inconvenient to the firm and Dr Malik decided to dispense with her services in a summary fashion.[69]We cross-checked our conclusions by reference to the burden of proof provisions. We are satisfied that there are facts from which the Tribunal could reasonably infer that the Respondents acted unlawfully: the fact that there were no problems in the employment relationship before the Claimant became pregnant; the problems only arose after the Claimant became pregnant; Dr Malik’s attitude to her and her husband became hostile and uncooperative; without explanation, the Respondents stopped paying the Claimant, even in respect of the period in January 2018 when she worked; the Respondents took none of the usual steps in relation to a pregnant employee, such as asking for information about proposed maternity leave, due date, arranging for a pregnancy risk assessment etc; we are satisfied that none of these things happened because Dr Malik had no intention to continue employing the Claimant. The burden of proof plainly passes to the Respondents to show that there was no discrimination whatsoever. They have not discharged that burden, and the claim of direct pregnancy discrimination must succeed.[70]Because the reason for the dismissal was pregnancy, it follows that it was unfair on ordinary principles. There was no pleaded claim of automatically unfair dismissal by reason of pregnancy, but that makes no practical difference in circumstances where we have concluded that the dismissal was discriminatory: the statutory cap will not apply.[71]We accept the Claimant’s evidence that she was not paid for her work in January 2018 up to the 20th of that month. There was no entitlement to contractual sick pay. However, she would of course have been entitled to statutory sick pay, which was not paid to her. In those respects, we uphold the Claimant’s claim of unauthorised deductions from wages. The amount of the deductions will be determined at the remedy hearing.
Remedy
[72]The remedy hearing will take place on 14 February 2022. A separate order has already been sent out containing directions. a basic award (unfair dismissal) of £657.23;[2]an award for loss of statutory rights (unfair dismissal) of £300;[3]an award in respect of unauthorised deductions from wages of £1,108.44; The Tribunal makes an award of compensation, consequent on the unlawful discrimination, against both the First and Second Respondents (who shall be jointly and severally liable) in respect of the following: loss of statutory sick pay: £765.73; interest on that award in the amount of £122.29;[6]injury to feelings: £14,000; Case Number: 3201138/2018 aggravated damages: £1,500;[8]interest on the awards of injury to feelings and aggravated damages in the amount of £4,960.
Remedy
Remedy
[1]Judgment on remedy having been sent to the parties on 17 February 2022, and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided. The Tribunal apologises to the parties for the delay in providing these reasons, which was caused by the demands of other cases.[2]By a judgment on liability sent to the parties on 14 January 2022, the Tribunal concluded as follows: 2.1. by consent, Ms M. Ahmed and Mr O. Parkash were removed from the proceedings, pursuant to Rule 34; 2.2. accordingly, the name of the Second Respondent (‘R2’) was amended to: ‘Dr A. Malik and Mr I. Ali t/a Malik Law Chambers (in intervention)’; 2.3. the Claimant’s employer was R2; 2.4. she was summarily dismissed on 19 February 2018; 2.5. the decision to dismiss was taken by Dr Malik (‘R1’), who was a partner in R2 at all material times; 2.6. alternatively, if he was not a partner in R2 at the material time, he was an agent of R2, within the meaning of ss.109 and 110 Equality Act 2010 (‘EqA’); 2.7. the dismissal was because of the Claimant’s pregnancy-related illness and was an act of direct pregnancy discrimination, contrary to s.18(2)(a) Equality Act 2010; 2.8. R1 and R2 are jointly and severally liable for the unlawful discrimination; 2.9. the Claimant was unfairly dismissed by R2; 2.10. R2 made unauthorised deductions from the Claimant’s wages: it failed to pay salary for the period 1-20 January 2018, and failed to pay statutory sick pay from 21 January 2018 to 19 February 2018; 2.11. the Claimant’s claim in respect of unpaid holiday pay was dismissed on withdrawal.[3]By a separate order, the Tribunal informed the parties that the Respondents would be permitted to participate in the remedy hearing, to lead evidence and to make submissions in the usual way, strictly limited to issues of remedy, provided there was full compliance by them with the case management orders. If there was not, the Tribunal might reconsider that decision.[4]On the morning of the hearing, no communication was received from the Second Respondent. Written submissions on remedy had been lodged on behalf of the First Respondent by Counsel, Ms Amanda Nanhoo-Robinson. However, shortly before the hearing began, the Tribunal received an email from Ms NanhooRobinson: ‘I have been instructed to withdraw, therefore have done so at 9.23am this morning. I have sent an email to the tribunal and have advised the Claimant's representative of the same. I shall therefore not be in attendance.’[5]Because this left us unclear as to the status of the written submissions she had lodged, the Tribunal asked the clerk to contact Ms Nanhoo-Robinson to explain the circumstances of her withdrawal from the case. At around 11:30, she attended the hearing and told us that, until the previous day, there had been no indication that she was going to be instructed to withdraw. I asked her whether the written submissions had been approved by Doctor Malik. She replied: ‘technically he hasn’t approved them’. I asked her to inform Dr Malik that, if the Tribunal did not hear from him, by email personally before 12:30, stating that he wanted us to have regard to the written submissions, we would disregard them because, according to Ms Nanhoo-Robinson, they were not approved.[6]At 11:58 Dr Malik emailed the Tribunal as follows [original format retained]: ‘Although my appeal related to the same matter is pending before the Employment Appeal Tribunal and also I was deprived from my basic right to cross examine the Claimant and to submit my defence, and I intend to appeal against the decision of 14 January 2022, I still request and give consent that to take into account the written submissions of Miss NanhooRobinson.’[7]Accordingly, the Tribunal took into account the written submissions. The law Compensation for acts of discrimination
The law
[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 she 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 the loss suffered by the Claimant, the Tribunal may take into account the chance of events having occurred following the unlawful act and determine the award on the basis of the loss of that chance (Wheeler). Where the chance of a future event is very high, or very low, it is permissible to treat the chance as 100% or 0%, as appropriate (Timothy James Consulting Ltd v Wilton, UKEAT/0082/14/DXA).[10]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[11]The Claimant is required to mitigate the loss she suffers as a result of the unlawful act. She is expected to search for other work and will not recover losses beyond a date by which the Tribunal concludes she ought reasonably to have been able to find new employment at a similar rate of pay.[12]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[13]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).[14]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.’[15]The bands have since been increased to reflect inflation, recently by way of Presidential Guidance. The Claimant’s case having been presented on 31 May 2018, the relevant Guidance1 provides: 15.1. lower band: £900 to £8600; 15.2. middle band: £8,600 to 25,700; 15.3. top band: £25,700 to £42,900.[16]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]).[17]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). Aggravated damages[18]The leading case on aggravated damages is Alexander v Home Office [1988] ICR 685, CA, where the Court it held that they can be awarded in a discrimination case where the Respondent has behaved ‘in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination’.[19]Underhill P (as he then was) gave further guidance in Commissioner of Police of the Metropolis v Shaw [2012] ICR 464, EAT, identifying three broad categories: 1 ‘First Addendum to Presidential Guidance Originally Issued on 5 September 2017’ 19.1. where the manner in which the wrong was committed was particularly upsetting. This is what the Court of Appeal in Alexander meant when referring to acts done in a ‘high-handed, malicious, insulting or oppressive manner’; 19.2. where there was a discriminatory motive — i.e. the conduct was evidently based on prejudice or animosity, or was spiteful, vindictive or intended to wound. Where such motive is evident, the discrimination will be likely to cause more distress than the same acts would cause if done inadvertently; for example, through ignorance or insensitivity; and 19.3. where subsequent conduct adds to the injury — for example, where the employer conducts tribunal proceedings in an unnecessarily offensive manner, or ‘rubs salt in the wound’ by plainly showing that it does not take the Claimant’s complaint of discrimination seriously. Interest[20]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 mandatory: reg 2, Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (‘ET(IADC) Regs’).2[21]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%.[22]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)).[23]Recoupment does not apply to compensation for discrimination. Findings of fact and conclusions The Claimant’s net salary and benefits[24]The core figures were set out by the Claimant’s representative in the schedule of loss, and were not disputed by the First Respondent in the written submissions presented on his behalf: 2 SI 1006/2803 3 SI 1996/2803 Awards for which R2 is solely liable Basic award and loss of statutory rights[25]The basic award, payable by R2, is £657.23, calculated as follows, taking into account the Claimant’s age and continuous service:[26]The tribunal makes an order for loss of statutory rights, also payable by R2 only, of £300. Unauthorised deduction from wages[27]The Tribunal found in its judgement on liability that R2 made unauthorised deductions from the Claimant’s wages: it failed to pay salary for the period 1-20 January 2018, and failed to pay statutory sick pay from 21 January 2018 to 19 February 2018. The loss of salary was agreed as £725.13.[29]The loss of statutory sick pay from 21 January 2018 to 19 February 2018 (the effective date of termination), a period of 4.29 weeks at the weekly rate at the time of £89.35, amounts to £383.31.[30]R2 shall pay C a total award for unauthorised deductions from wages of £1108.44. Awards for which R1 and R2 are jointly and severally liable[31]We award losses flowing from the dismissal under the discrimination claim, and do not make a separate compensatory award under the unfair dismissal claim (which would give rise to double-counting).[32]The Claimant lost a further period of statutory sick pay between 20 February 2018 and 19 April 2018 (8.57 weeks), when R2 was shut down by the Solicitors Regulatory Authority. This produces an award of £765.73 (8.57 x 89.35).[33]Had the Claimant not been dismissed, she would have received no further pay from the Respondent after 19 April 2018, at which point her losses cease. Injury to feelings[34]The Claimant was extremely upset by the summary termination of her employment. She had worked for the Respondent for over three years. She had previously had a good relationship with her employer. She was entitled to believe that her pregnancy would make no difference to that relationship and was deeply shocked when she learnt through her husband that she had been summarily dismissed. We accept her evidence that this caused her very considerable distress. That distress was evidenced by the fact that she continued to try and contact Dr Malik with a view to resolving matters. We accept that the prospect of being out of work caused her much stress. It also caused her worry about what the impact would be on her, her family and her unborn child. She was very worried indeed about how the family would make ends meet.[35]The Claimant’s child was born two months premature. She subsequently had a miscarriage with her next child. The Claimant asked us to have regard to this when assessing the award to injury to feelings. Although, of course, the Tribunal is sympathetic to these distressing developments, because there was no medical evidence before us to confirm a causal link between then and the dismissal, we did not consider that we could take them into account. Had there been evidence to support such a link, we might have considered making the kind of award which Mr Huang invited us to make, at the top of middle Vento band, but there was not. For the same reasons, we do not make a separate award of compensation for personal injury.[36]We reject the primary submission made on behalf Dr Malik that the award should be in the lower Vento band. Although it is a single act, dismissal is the among the most serious acts an employer can do. We are satisfied that the award certainly belongs within the middle band. We consider that an award of £14,000 for injury to feelings is appropriate in the circumstances.[37]We also find that there were aggravating factors in the manner in which the discriminatory act was carried out: Dr Malik behaved in the most high-handed fashion, refusing to communicate with the Claimant, and dealing with her husband in a hostile and intimidating fashion, saying words to the effect of: ‘whatever you can do, you can do. I am a solicitor myself. I know everything – you can go to the High Court, Supreme Court and I know everything’. We have no doubt whatsoever that this arrogant and dismissive conduct exacerbated the Claimant’s hurt feelings and made her feel personally rejected and humiliated. We accept her evidence that the humiliation still plays on her mind to this day.[38]We consider that an award for aggravated damages of £1,500 is appropriate in all the circumstances. The Claimant was already very upset indeed; this conduct undoubtedly rubbed salt in her wounds. Interest[39]The Tribunal has decided to award interest in accordance with the usual principles. We have considered whether a serious injustice would be done to the Respondent by our calculation of interest including the period of delay caused by Covid-19 and/or because the Judgment Act rate of 8% no longer reflects financial reality. The Respondents did not submit that we should alter our approach from the normal calculation of interest in this case. We have concluded that the delay has been one of the uncertainties of litigation, for which the Claimant should not be penalised. For these reasons we award interest at the rate of 8% for the period set out in the Regulations.[40]Interest can only be applied to the compensation claim from the discriminatory act. Thus, it can only be applied to the post dismissal financial loss.[41]With regard to the financial loss of £765.73, the period between the date of the discriminatory act (19 February 2018) and the date of calculation (14 February 2022) is 1457 days. Interest applies from the mid-point between those two dates, thus for a period of 728.5 days.[42]Simple interest at 8% is £122.29 (728.5 days ÷ 365 x 8% = 15.97% x £765.73).[43]With regard to injury to feelings and aggravated damages, simple interest on £15,500 at a rate of 8% from 19 February 2018 to 14 February 2022 (1457 days) is £4,960 (1457 days ÷ 365 x 8% = 32% x £15,500). ACAS uplift[44]We were invited to award an ACAS uplift. However, such an uplift only arises where there has been a relevant breach in relation to a disciplinary or grievance procedure. Because there were no such procedures in this case, there can be no uplift. Grossing up[45]Because the first £30,000 of the compensatory award is tax-free, there is no requirement to gross up any part of the award of compensation in this case.[46]We are grateful to Mr Huang, and to his predecessor Mr Schuscheim, for their clear and helpful submissions, and their assistance throughout these hearings.
The law
[1]Dr Malik’s application for a reconsideration of the Tribunal’s decision not to permit him to participate in the liability hearing is refused because it was presented out of time and there are no good grounds for extending time.[2]Dr Malik’s application for a reconsideration of the Tribunal’s judgment on liability is refused because it was presented out of time and there are no good grounds for extending time.[3]On 1 February 2022, Dr Malik requested written reasons and indicated that he intended to appeal the judgment on liability. Written reasons were sent to the parties on 11 February 2022.[4]On the day of the remedy hearing, Dr Malik withdrew instructions from his Counsel, Ms Nanhoo-Robinson, to represent him at the hearing, but confirmed that he wanted the Tribunal to take into account the written submissions which she had lodged on his behalf.[5]Judgment and reasons on remedy were given orally at the hearing. The written judgment was sent to the parties on 17 February 2022.[6]By letter dated 19 February 2022, Dr Malik requested written reasons for the remedy judgment and indicated that he also intended to appeal against that judgment. Written reasons were sent to the parties on 11 April 2022. The appeals to the EAT[7]According to the Tribunal’s case file, Mr I. Ali lodged an appeal to the EAT against the Tribunal’s judgment on liability on the grounds that Mr Ali was not aware of the case in the ET, was not served with any notice or documents related to the case and was abroad between October 2021 and 16 February 2022. The EAT reference assigned to Mr Ali’s appeal was EA-2022-000171-LA.[8]According to the Tribunal’s file, on 19 April 2022 a separate appeal by Dr Malik was rejected by the EAT because it had been presented out of time. The EAT reference for that appeal was EA-2021-001121-LA. On 23 December 2022, the ET received further correspondence from the EAT relating to the same appeal, attaching an order by Ms Kerr (on behalf of the Registrar), refusing Dr Malik’s application for an extension of time in which to present his notice of appeal. The EAT’s order in relation to Mr Ali’s appeal[9]On the same day, 23 December 2022, the Tribunal received further correspondence from the EAT in relation to Mr Ali’s appeal, attaching an Order of HHJ Katherine Tucker, staying the appeal for 21 days (i.e. until 13 January 2023) ‘to give opportunity to the Appellant to submit to the Employment Tribunal (and copy to the Employment Appeal Tribunal) an application for Reconsideration albeit out of time’. The Order did not contain the learned Judge’s reasons for making it; of course, there may have been reasons why it would have been inappropriate to do so. The Appellant was identified in the order as ‘Mr I. Ali’.[10]No application from Mr Ali had been received by the Tribunal by the date of this judgment (16 January 2023). Dr Malik’s application for reconsideration[11]On 6 January 2023, the Tribunal received an application for reconsideration from Mr Andrew Willis of Croner Group Limited. Mr Willis explained that Croner was representing Dr Malik. There was no reference to its representing Mr Ali.[12]Dr Malik sought a reconsideration of the Tribunal’s decision to refuse Dr Malik permission to participate in the liability hearing for the reasons given at paragraph 29. He also sought reconsideration of the judgment of 13 January 2022, ‘holding that Doctor Malik was liable as a partner of the Second Respondent for unfair dismissal and discrimination’. The grounds for reconsideration all relate to Dr Malik’s situation; they bear no relation to Mr Ali’s grounds of appeal.[13]The only explanation for the presentation of Dr Malik’s reconsideration application so long out of time was as follows: ‘We acknowledge that this request is being made outside the usual time limit, however it has been submitted at the suggestion of the Employment Appeal Tribunal. The EAT has stayed our client’s appeal (Appeal No. EA2022-000171-LA) in respect of the same subject matter to allow us an opportunity to make this application (copy order attached).’[14]Both the EAT reference number quoted by Mr Willis in the passage above and the EAT Order which he attached related to Mr Ali’s appeal, not Dr Malik’s appeal. There is no reference in the letter to the fact that his appeal had already been rejected by the EAT.
Conclusion
[15]No application for reconsideration having been received from Mr Ali by the date specified by the EAT, no further action will be taken in relation to the EAT’s Order.[16]As for Dr Malik’s application, on the face of it there appears to have been an attempt to mislead the ET into believing that the EAT had stayed his appeal, to give him an opportunity to seek a reconsideration from the ET when, in fact, it had rejected his appeal.[17]In any event, given that the only explanation for making the application nearly a year out of time related to Mr Ali’s appeal, not to Dr Malik’s, I am satisfied that there are no good grounds for extending time.[18]Accordingly, Dr Malik’s application for reconsideration is refused.[19]A copy of this judgment will be sent to all parties. Copies to Mr Ali and to ‘Dr Malik and Mr Ali t/a Malik Law Chambers (in intervention)’ will be sent c/o Tan Chambers, and to the Claimant c/o Whitechapel Legal Advice Clinic, as per the addresses given by the EAT on its correspondence, which it is assumed are the most up-to-date contact details. A separate copy will be sent to Dr Malik c/o Croner at the email address on his reconsideration application.[20]A copy will also be sent to the Employment Appeal Tribunal for information.