Mr R Allen v Allen Brothers (Fittings) Ltd and Ms E Adams: 3202530/2019
EMPLOYMENT TRIBUNALS
Case No 3202530/2019
Between
Mr R AllenClaimantAllen Brothers (Fittings) Ltd and Ms E AdamsRespondent
Before
Employment Judge Elgot
Members
Ms J HouzerMr S WoodhouseIn person for claimantMr S Butler (instructed by Counsel) for respondentDate 8 June 2021
JUDGMENT
[1]The complaint of age discrimination is DISMISSED upon withdrawal by the Claimant.[2]The complaints of disability discrimination by reference to section 15 Equality Act 2010 and of harassment related to the protected characteristic of disability are DISMISSED because the Tribunal has no jurisdiction to hear them.[3]The Tribunal finds that during the relevant period from 28 February 2019 until the effective date of termination of the Claimant’s employment with the 1st Respondent which is 27 June 2019 the Claimant was not a disabled person as defined by section 6 of the 2010 Act Case Number: 3202530/202019 V
REASONS
[1]The Judgment sent to the parties on 18 February 2021 (‘the disability judgment’) determined the single issue as to whether the Claimant was, during the material time, a disabled person as defined by s 6 Equality Act 2010 (‘the 2010 Act’). The Tribunal unanimously decided that he was not and consequently the complaints of disability discrimination including harassment are dismissed because a tribunal has no jurisdiction to hear them.[2]The remaining claims of unfair dismissal and victimisation (as defined by s 27 of the 2010 Act) together with the claim for failure to provide a written statement of employment particulars remain to be decided and judgment on liability has been reserved. The claim for accrued and unpaid holiday pay has been settled and the agreed outstanding amount has been paid. The complaint of age discrimination has been dismissed upon withdrawal by the Claimant.[3]The Claimant’s request for reconsideration of the disability judgment has been refused.[4]The Tribunal’s reasons for the disability judgment are as follows:-[5]The Claimant says that he has a mental health impairment of depression and anxiety amounting to a disability.[6]The disability judgment makes reference to the ‘relevant period’ (sometimes called the material time) which refers to the requirement that the Claimant must show that he was a disabled person at the time when the alleged discriminatory acts occurred. It is clear from the Grounds of Claim as summarised in both the Case Summary prepared by Employment Judge Crosfill, following a Preliminary Hearing on 6 March 2020, and in the List of Issues that the Claimant contends that the comments made by the Second Respondent during a meeting on 28 February 2019 were discriminatory acts and unlawful harassment. He was dismissed on 6 June 2019 with notice paid until 27 June 2019 and says that his dismissal was also an act of discrimination because of something arising from his disability (section 15 of the 2010 Act). The relevant period is therefore 28 February to 27 June 2019.[7]S6 of the 2010 Act states that a person (P) has a disability if-‘P has a physical or mental impairment, and the impairment has a substantial and long term adverse effect on P’s ability to carry out normal day to day activities’.[8]There is statutory Guidance (brought into effect from 1 May 2011) on matters to be taken into account in determining questions relating to the definition of disability. The Tribunal has taken account of this important document.[9]In particular we have looked at the meaning of ‘long term effects’ (paragraph C1 of the Guidance) which states ‘for the purposes of deciding whether a person is disabled, a long term effect of an impairment is one which has lasted at least 12 months; or where the total period for which it lasts, from the time of the first onset is likely to be at least twelve months; or which is likely to last for the rest of the life of the person affected’.[10]It is therefore necessary to look closely not only at diagnosis but prognosis in relation to the length of time of the effects of an impairment. We are satisfied that the Claimant did not at the material time satisfy the long term requirement.[11]The Tribunal heard evidence from the Claimant himself in relation to the discrete issue of disability and he was cross examined by Mr Butler. There was an agreed bundle of documents for the Hearing including documents addressing the disability question. For the avoidance of doubt the Respondents agreed that they were content for us to utilise the transcript of the 28 February 2019 meeting commissioned by the Claimant and that is the document (pages 428-511 of the bundle) which we have looked at where relevant to the disability question.[12]It is for the Claimant to show that he was a disabled person, as defined by the 2010 Act, at the relevant time. He was reminded of this obligation in a letter dated 23 June 2020 dictated by Employment Judge Crosfill which states ‘The Claimant should bear in mind that he bears the burden of showing that the effects of any impairment are long term’.[13]The Claimant confirmed that he had obtained and disclosed the relevant documents to discharge this burden of proof. The documents he identified were his GP Patient Records and letters from other treating practitioners from 1 January 2015 to October 2019 together with fit notes. He also produced a Disability Impact Statement the latest version of which is at page 425. He referred to a number of emails written between him and the Second Respondent in 2017 which are at pages 100 A -104 of the bundle. That correspondence demonstrates the Claimant telling the Second Respondent about his difficulties in 2017.[14]The Claimant has produced no report or notes from his counsellor/therapist who he says he consulted in September 2018 on the Second Respondent’s advice.[15]The Claimant’s Statement of Case says that he became ‘mentally unwell’ in 2017 as a result of the working and personal relationships between him, the Second Respondent (who is Managing Director of the First Respondent) and the Claimant’s family. The Claimant and the Second Respondent are first cousins once removed. The First Respondent is a family run business selling and exporting sailing hardware. The Claimant’s mother is a Director of the First Respondent and the Claimant and his brother Edward are shareholders.[16]He also began to suffer anxiety and stress as a result of conflict and dispute with his line manager. The Claimant communicated some of these problems, thoughts and feelings to the Second Respondent in emails.[17]The Claimant’s GP records on page 6 of 49 in an entry dated 24 October 2017 record a diagnosis of ‘anxiety disorder, unspecified’ and the Claimant was prescribed Propranalol, an anti-anxiety medicine on a 28 day prescription. The Claimant describes in his Impact Statement that there was no requirement to take this medication every day but ‘to take three times a day if I was feeling stressed for an extended period or to take at the onset of stress if I had not had to take the tablets regularly’. This is the first entry in the disclosed GP Notes which refers in any way to mental health disorder save for one earlier reference to the sad and sudden death of the Claimant’s father (Kim Allen) in March 2015 when the Claimant was advised to undertake bereavement counselling and prescribed some medication to help him sleep.[18]There is no GP record of any further consultation with a doctor or therapist regarding this episode of anxiety and stress and no record of a repeat of the Propranolol prescription. The Claimant explored the option of private counselling which was also suggested to him by the Second Respondent. It is unclear whether this was taken up.[19]The Claimant did not visit his GP at any time after 24 October 2017 and at any time during 2018 save to complain of a small accidental wound to his elbow.[20]We conclude that this episode of anxiety and stress in 2017 did not have effects which are proven to have lasted for at least twelve months or were likely to last for at least twelve months. There was a short term discrete episode of compromised mental health but with no evidence of an underlying condition which was likely to recur beyond the twelve month period. The Claimant has shown no evidence from any medical or therapeutic source to support a continuing diagnosis or prognosis of a debilitating mental health problem throughout the rest of 2017 and all of 2018.[21]Thereafter the Claimant says that in January 2019 he had a ‘severe mental breakdown’ and indeed he was absent from work from 16 January 2019 and never returned. He first reported to the Nurse at his GP practice on 30 January 2019 that he was feeling depressed and low in mood ‘for the last few weeks, been longer but came to a head just recently’. We find that this was a new episode of mental health difficulty separate from the episode of reactive anxiety which had occurred 14 months earlier.[22]The Claimant at first opted to ‘start with self help’ and was given the telephone number to self-refer for counselling. He did set up a counselling start for Cognitive Behavioural Therapy (CBT) online using SilverCloud on 1 March 2019 from which he later withdrew and was discharged on 15 April 2019. Instead he wanted to undertake private counselling.[23]However by 13 February 2019 the Claimant’s depression became debilitating as recorded by the Nurse at the GP Surgery on page 7 of 49 of the Patient record. She diagnosed multifactorial ‘depressive disorder (new episode)’ and prescribed an anti -depressant called Sertraline at 50 mg per day for 28 days with a review timetabled for 13 March 2019. The Claimant was certified not fit for work for that period as a result of his diagnosis of depression. A fit note was issued (sometimes called a MED3 statement).[24]The Claimant did not actually begin to take the Sertraline until just before his 13 March 2019 review and felt no better. He was well enough to attend the meeting on 28 February 2019 with the Second Respondent, his mother and brother which he had convened to discuss his future direction within the business of the First Respondent. The Claimant himself anticipated, on advice, that his mental health would improve once his work and working relationship issues were resolved.[25]A further review was fixed for 3 April 2019 when the Claimant saw both the Nurse and a Clinical Practitioner Dr Rahman who signed a second fit note for the period 13 March until 7 April 2019.[26]The Nurse records the Claimant to be finding counselling helpful but he was ‘very anxious’[27]The fit note obtained retrospectively on 3 April 2019 for the period 13 March 2019 to 7 April 2019 advises that the Claimant is not fit for work for that period because of depression. Doctor Rehman did not consider that the Claimant’s condition of depression was likely to continue beyond 7 April 2019 because he writes ‘I will not need to assess your fitness for work again at the end of this period’. We conclude therefore that his prognosis was one of continuing improvement utilising Sertraline and counselling. Dr Rehman does not anticipate long term illness. The Claimant was able to continue with some exercise and hobbies, go on a skiing holiday in mid-March and take legal advice from more than one source.[28]The Claimant did not during the relevant period identified above thereafter consult his GP or any Nurse at the Practice to review or assist with his diagnosis of a depressive illness. He continued on Sertraline at the same dose having declined any alternatives. He explained that he had ‘lost confidence ’in his GP Practice following the consultation with Dr Rehman which he regarded as insultingly quick and dismissive. He had on the same day however seen the Nurse for 13 minutes about the same problems.[29]In addition the Claimant broke his ankle in a skateboarding accident on 22 April 2019 and had surgery followed by rehabilitative physiotherapy. At page 409 of the bundle the only ‘Active Problem’ recorded in the GP Summary is his fractured ankle; there is no mention of continuing depression and/or anxiety because he did not consult his doctors about these problems. His ankle is recorded as having healed well and on page 11 of 49 when asked if he felt anxious or low in mood ‘because of your joint or muscle symptoms in the past two weeks’ the Claimant’s response was ‘not at all’. This is in contrast with his oral testimony when he maintained that his injury had exacerbated his depression.[30]We conclude that during the relevant period between 28 February 2019 and 27th June 2019 whereas the Claimant was depressed (as diagnosed) he has been unable to show a comprehensive evidential matrix to support the crucial component of the s 6 definition which requires him to prove that the effects of his mental health impairment were long term. There is no medical or other expert evidence that his depression had lasted twelve months or more. We find that his anxiety state in 2017 was a short term episode which did not continue through 2018 and 2019 to cover the relevant period.[31]We find that at the material time there was no prognosis that his depression was likely to last for twelve months or more. The Claimant’s GP signed him unfit for work until 7 April 2019 and thereafter the Claimant did not consult his clinicians about any mental health problem again. Both he and his medical/therapeutic advisers appear to have believed that a resolution of his difficulties at work might considerably improve his mental health.[32]The Claimant has failed to discharge his burden of proof that he was at the material time a disabled person as defined by the 2010 Act. Accordingly the Tribunal has no jurisdiction to hear his claims of disability discrimination.[1]The parties are reminded that a complaint of unfair dismissal and the claim for compensation under section 38 of the 2002 Act can only succeed against the Claimant’s employer which is the First Respondent. No discrimination claims have succeeded against the Second Respondent and she is therefore not liable for any remedy which is awarded in respect of the successful claims.[2]The Claimant originally made complaints of disability discrimination against both Respondents which have been dismissed because a tribunal has no jurisdiction to hear them. We decided on 10 February 2021 that the Claimant was not at the material time a disabled person within the definition set out in section 6 Equality Act 2010 (the 2010 Act). That judgment was sent to the parties on 18 February 2021 and written reasons sent out, at the request of the Claimant, on 22 April 2021.[3]The complaint of age discrimination and the claim for unpaid holiday pay have been withdrawn.[4]This leaves three extant claims of unfair dismissal and failure to provide written particulars of employment terms (against the First Respondent) and of victimisation under s 27 of the 2010 Act against both Respondents.[5]We had the benefit of written closing submissions from the Claimant and from Mr Butler on behalf of both Respondents. Mr Butler made it clear that his closing submissions are supplemental to the Respondents’ Opening Note which was provided on 9 February 2021 and which we have also read.[6]The Claimant gave evidence on his own behalf and his witness statement is headed ‘Statement of Case’. That Statement contains no substantive evidence about the Claimant’s dismissal, the reason for it or the fairness or unfairness of it by reference to section 98 Employment Rights Act 1996 (the 1996 Act)[7]The Respondents had two witnesses. Ms Adams, the Second Respondent, gave evidence and was cross examined as was Mr Ian Little, the First Respondent’s Financial Controller whose responsibilities include administration of the payroll function and thus necessarily the maintenance of absence and sickness records for the First Respondent’s employees of whom there were approximately 25-30.[8]There is an agreed bundle of documents for the Hearing. As previously confirmed in the disability judgment, in correspondence between the parties, and between the Claimant and the Tribunal, we utilised the transcript of the 28 February 2019 meeting (‘the transcript’) which was commissioned by the Claimant and which is at pages 428-511 of the bundle.[9]In accordance with the usual practice of the Tribunal we read only those documents in the bundle to which our attention was drawn by the parties, the witnesses and the Respondents’ representative. The Claimant produced some additional documentation on 6 April 2021 from the email address of his mother Mrs Lindsay Allen to which the Respondents did not object and which was admitted late into evidence. Those documents consist of Notes of a Directors’ Board Meeting of the First Respondent on 10 April 2019 and a screen shot of some i-Messages between the Second Respondent and Mrs Lindsay Allen which messages were not referred to in evidence or cross examination. We read only the notes of the Board Meeting as we were requested to do by Mr Butler in his Closing Submission at paragraph 54c.[10]We have listened to the recording of the meeting on 28 February 2019 supplied by the Claimant. Background Information.[11]The First Respondent is a relatively small business employing less than thirty people manufacturing and supplying specialist fittings and components for yachts and dinghies. The Second Respondent is the Managing Director and the other director is the Claimant’s mother Mrs Lindsay Allen. It is a family business originally founded in 1958 by the Second Respondent’s father Tony and his brother Glenn. In 2002 upon the death and then retirement of the founders the Claimant’s father Kim Allen, Glenn’s son, became the Managing Director during which time the Second Respondent worked for the company but did not have the extensive involvement which she now has as MD. Sadly, Kim Allen died suddenly and unexpectedly in 2015 leaving his wife and two sons, Richard and Edward. Ms Liz Adams, the Second Respondent, became the MD. Richard Allan is the Claimant in this case and is therefore the first cousin once removed of the Second Respondent. Both Edward and Lindsay Allen work in the business. Lindsay, Richard and Edward Allen are shareholders. The Claimant lives with his mother in the same house.[12]This case therefore unfortunately involves significant dispute between close family members.[13]The Claimant has worked on and off for the First Respondent since 2010 when he was 17, during the school and university holidays. He obtained an undergraduate degree in Mechanical Engineering and upon graduation in 2016 was keen to join the family business and work for the First Respondent full time. He was offered and accepted, on 12 May 2016, a job/apprenticeship in the Tool Room expressing himself to be ‘delighted to start working in the tool room after my exams’. By November 2016 his role became Production Assistant and he was paid more. This is his first and only full time permanent job.[14]He has therefore worked for three complete years for the First Respondent from 1 June 2016 until the effective date of termination of his employment on 27 June 2019. He was dismissed on three weeks’ notice from 6 June 2019 as appears by reference to the letter of dismissal which is page 156 of the bundle. He was not dismissed ‘grossly’ as he terms it. This was not a summary dismissal without notice for gross misconduct. The Claimant is mistaken in this analysis.[15]We wish to comment briefly on the Second Respondent’s role as Managing Director and record that we find no conflict of interest between this overarching responsibility for ‘design, engineering, production, sales, financing and managing customer relationships’ as she describes in her witness statement and her additional responsibility for Human Resources and employee relations. It is, in our industrial and judicial experience, quite common for an MD or Director of a small organisation to take on this HR role and we do not agree with the Claimant that there was an inevitable conflict of roles which prejudiced him or any other employee. Ms Adams also had access to specialist HR advice from an outside source whom she calls ‘my HR lady’. Unfair Dismissal.[16]The Claimant had a poor attendance record in 2017 and 2018 as can be seen from the Respondent’s documents at pages 177-200 of the agreed bundle. We find no reason to dispute the accuracy of these records despite the Claimant’s criticisms of Mr Little’s competence. The Claimant was absent by reason of sickness or as a result of unauthorised or unexplained leave for 165.5 hours in 2017 and 191.5 hours in 2018. He was not spoken to about this level of absence in connection with any attendance or disciplinary policy of the First Respondent.[17]Mr Little told us in relation to this period, ‘I often had to liaise with the First Respondent’s Accounts Assistant, Michelle Faraway, in order to calculate Richard’s pay. Michelle often had to chase Richard’s mother and Director of the First Respondent, Lindsay Allen, for medical certificates which we never received for significant periods of absence’. He described this process as a ‘constant source of grief’ for Michelle. It appears to have been quite normal for the First Respondent to request and the Claimant to supply fit notes/ medical certificates via his mother, Lindsay Allen, the other Director of the First Respondent with whom he lives. Mrs Allen is not and never was her son’s line manager.[18]Mrs Lindsay Allen was not a witness in these proceedings and no witness statement has been produced setting out her evidence. The Claimant applied for the first time on the final day, Day 3 of the Hearing (6 April 2021) for her to be permitted to give evidence on his behalf. This application was refused because in the absence of a witness statement the Respondents had no knowledge of her evidence and no opportunity to prepare cross-examination. We were satisfied that the Claimant has previously received clear guidance on the process for adducing witness evidence particularly as contained in the case management orders of Employment Judge Crosfill on pages 78-9 of the bundle which were made following a preliminary hearing on 6 March 2020. There is similar information in a letter from the Tribunal dated 18 January 2020.[19]We are satisfied that the Claimant knew of the First Respondent’s requirements for reporting sickness absence and requesting holiday. He knew that it was his responsibility to report and document his absences and not the obligation of the First Respondent to ‘request’ fit notes. He said in cross examination that he knew that he could self-certify if he was unwell for 5 days or less and ‘then it was a doctor’s note’. He received what he calls a ‘blank copy’ contract of employment in 2016 while he was working in the Tool Room. He refused to sign it and ‘left it back on her [Liz] desk…because it pigeonholed me into the Tool Room role’. We accept the Second Respondent’s evidence that this document contained the same provisions relating to notification of sickness absence as can be seen on page 148. Ms Adams described how she wrote over the original contract and issued a second version referring to the Claimant’s role as Production Assistant (page 158).[20]We are certain that the Claimant knew that he had to notify sickness by 12 noon on the first day of absence and that the notification should be made to his line manager who was the Production Manager Andy Dallard. Mr Dallard’s responsibility was to notify the Accounts/Payroll staff. Mr Little described how ‘Andy wrote it in his own little book’. Mr Little said that alternatively an employee could contact the Accounts office direct. The same requirements applied to holiday requests. The Claimant knew of but failed to follow this procedure which mirrors the standard procedures in most similar workplaces.[21]Instead he said he regarded his absences as authorised by his mother without the necessity for communication via any other channel inside the First Respondent’s organisation. He therefore strongly denies any unauthorised absences. We find the Claimant’s evidence in this respect to be difficult to understand and unreliable. The First Respondent was prepared to accept Mrs Lindsay Allen as the conduit for the request for and production of fit notes but she was not the Claimant’s manager, she was not in charge of personnel, workforce, payroll or financial matters and the Claimant knew that the correct procedure was as described by him in his own oral evidence and as recorded in the (unsigned) contract he saw in 2016.[22]The notes of the Directors meeting on 10 April 2019, supplied late by the Claimant but accepted into evidence on 6 April 2021, reveal the opinion of the First Respondent’s advisors at paragraph 2.2 that the Claimant ‘should be treated in line with his contract of employment and company policy the same way as any other employee would be treated in such circumstances’ including ‘being asked to provide supporting medical certificates’. The Directors (including Mrs Lindsay Allen) at this meeting were professionally advised by two other participants who are not part of the family, namely Messrs Holmes and Frostick who were invited to intervene.[23]Mr Holmes incidentally comments on the 28 February 2019 meeting between the Claimant, his mother and brother and the Second Respondent which is further referred to below. He says that he had ‘heard the transcript’ and describes the subject matter of the meeting as ‘RA’s grievance with AD [Andy Dallard]. This is an important objective assessment of the main purpose and content of that meeting which supports our conclusion that no protected act as required by section 27 Equality Act 2010 and defined in subsection (2) occurred.[24]The Claimant will also have seen the clause in the ‘blank’ contract of employment which states that an unauthorised period of absence of 20 weeks or more may result in dismissal. Sickness absence in 2019.[25]The Claimant was off sick on 8 and 9 January 2019. He returned for a few days and commenced another period of sickness absence on 16 January 2019 from which he never returned. He was dismissed on 6 June 2019. Irrespective of the nature and seriousness of his illness and the intervening conflict between the Claimant and (predominantly) the Second Respondent the Claimant failed to properly produce comprehensive sickness certification and fit notes for this period of absence.[26]There is no fit note for the period 16 January to 13 February 2019. The first such fit note covering the period 13 February to 12 March 2019 was produced in midFebruary when Mrs Lindsay Allen brought it into the office. There was no communication from the Claimant in the accepted procedural manner. The second fit note covering the period 13 March to 7 April 2019 was not produced until 3 April. There is no fit note in the bundle covering the time between 7 April and 22 April. The third fit note in relation to the dates from 22 April to 9 July 2019 was not made available by the Claimant until 7 June 2019 the day after his dismissal.[27]These findings of fact in relation to the Claimant’s conduct around absence reporting are relevant because we anticipate that the Respondent will make a robust argument that the Claimant’s behaviour amounts to contributory fault entitling us to reduce the compensation awarded to him for his unfair dismissal. This is an issue which will be fully ventilated and argued at the Remedy Hearing[28]The Claimant was dismissed for what he himself describes at paragraph 34d of the Details of Complaint as ‘failure to produce sick notes in a timely manner or at all’. The letter of dismissal is at page 156 of the bundle, the author is the Second Respondent. It gives as the reason for dismissal ‘your absence began on 16 June 2019,20 weeks ago and you have not provided sick notes to cover the whole period or communicated with me since the meeting in February…Following that meeting I wrote to you asking if you wanted to formalise your grievance, but I had no response’.[29]It is clear that the reason for the Claimant’s dismissal is one of the potentially fair reasons in section 98(2) Employment Rights Act 1996 (the 1996 Act) ‘a reason relating to the conduct of an employee’.[30]We have set out above our findings of fact relating to the Claimant’s failure to report sickness and produce fit notes in a timely and conscientious manner compliant with the First Respondent’s procedures. The letter of dismissal refers to further misconduct consisting of failures of communication which are stated to be part of the reason for dismissal.[31]We have seen and heard no evidence that the Claimant directly communicated with either Respondent during the period 16 January until mid- February 2019. If his argument is that he told his mother, as a Director of the First Respondent, about the reasons for his absence then there is no evidence before us in relation to any steps she took to communicate that information to the relevant personnel at the First Respondent or to the Second Respondent who had responsibility for HR matters.[32]However the Claimant was well enough to suggest and then convene the 28 February 2019 meeting which the Second Respondent describes in her witness statement at paragraphs 12 -14 as being a shareholders’ meeting which developed into a series of ‘accusations against me…four different options for legal action he could pursue’. The Claimant was well prepared having taken advice. The Second Respondent was shocked to be required to answer those accusations including bullying, abuse, defamation and failures of the duty of care without advance notice of the nature or content of the meeting. The transcript and the recording illustrate her alarm and surprise but nonetheless there followed a discussion lasting one hour and fifteen minutes without resolution.[33]Irrespective of the merits of any of the said accusations the conclusion of the meeting was not as the Claimant describes in his Statement of Case that ‘[Liz] would contact me for the continuation of the meeting’. The Second Respondent does say at page 82 of the transcript ’I don’t think we can resolve this right now, we’ll have to come back and have another meeting. And I think we-I would like to get my HR lady to come along’. She then asks the Claimant to send her in an email stating ‘what I’ve done wrong and what you’re actually-what your grievance is with me’.[34]The Claimant’s response is to agree –‘yes sure. That’s fine then’. Edward Allen also says ‘I can send you that’. The Claimant says Edward is referring to the recording. The meeting ended therefore with the Claimant agreeing to formalise and send his complaints in writing. He never did this. He thereafter did not communicate with the Second Respondent at all until his dismissal and did not contact the First Respondent through any appropriate channel. He did not formalise or lodge any grievance in writing.[35]His only contact was a coincidental encounter with the Second Respondent at the airport on 18 March 2019 as he was about to depart on a skiing trip with friends. We note that he obtained no authorisation from the Second Respondent (in charge of HR) his line manager or via the Accounts/Payroll office to take this holiday whilst on sick leave.[36]The Second Respondent did write to the Claimant. On 15 March 2019 she sent an email which is on page 140 enclosing an amended skills matrix. We find that this is not the action of a Managing Director who had already decided to engineer the departure of the Claimant by whatever means. At first the Claimant told us that he did not receive this email and he repeats this contention in his Closing Submission. However when cross examined he said he did see the attached new skills matrix because his mother (who had been copied in to the email of 15 March 2019, as was Edward Allen) showed it to him. It is surprising that he was shown only the attachment and not the covering email but what is clear is that the Claimant knew that the Second Respondent was taking steps to contact him and was not ignoring the problems raised by him on 28 February 2019.[37]He did not contact the First or Second Respondent to point out that he was not receiving correspondence sent to his work email address despite the fact that his brother Edward worked in IT for the First Respondent.[38]At page 144 there is a further email from the Second Respondent dated 24 March 2019 warning the Claimant of the possible consequences of his unauthorised absences and notifying him that the First Respondent is taking legal advice. The email refers to the missing ‘medical certificates’ and points out that the Claimant had been expected to return to work on 13 March 2019 when his latest fit note expired. The Claimant says he did not see this email and it was not copied to his mother, Lindsay Allen. He did however safely receive a recorded delivery letter two days later on 26 March 2019 (page 146) which again refers to his failures to provide proper comprehensive sickness certification. The letter also requests the Claimant to let the Second Respondent know if he wishes to take out ‘a formal grievance against Andy Dallard or the Company’. He did not reply to this letter or to the back- up email dated 27 March 2019 on page 153 but did send the backdated fit notes dated 3 April and 7 June 2019 (the latter was sent one day after his dismissal on 6 June).[39]By reference to the reason for dismissal which we have described above we are satisfied that the First Respondent had a genuine belief on reasonable grounds that the misconduct had occurred because there was prolonged (only partially certified) sickness absence on the Claimant’s part, a failure of communication from him and no grievance was sent in writing.[40]Having established the reason for the Claimant’s dismissal it is for us to determine whether the dismissal was fair or unfair taking into account what is sometimes called the ‘fairness question’ set out in s 98(4) of the 1996 Act. We have asked ourselves the question whether, taking into account all the circumstances, including the size and administrative resources of the First Respondent, the employer in this case acted reasonably or unreasonably in treating the Claimant’s misconduct as sufficient reason for dismissing him. In answering this question we have taken into account equity and the substantial merits of the case.[41]Mr Butler’s statement of the law relating to Unfair Dismissal in paragraphs 43 -50 of his Closing Submissions is accepted as comprehensive and accurate. We agree that there is a single unitary question of reasonableness as he terms it. We find the dismissal to be unfair both substantively and procedurally for the simple reason that the Claimant was given no fair and reasonable opportunity to explain and/or mitigate his conduct prior to his dismissal.[42]The circumstances were that the First Respondent knew that he was depressed, unwell, miserable and distressed, with numerous concerns about his work and his working relationships. It was unfair and outside the band of reasonable responses to dismiss him without further information, without affording him the possibility of advocating on his own behalf (with representation if wanted) and without having given him advance warning that he faced the ultimate sanction of dismissal.[43]S207 Trade Union and Labour Relations (Consolidation) Act 1992 does require us to take into account any provisions of the ACAS Code of Practice on disciplinary and grievance procedures (‘the ACAS Code). In this connection we are certain that in failing to formally inform the Claimant of the disciplinary case he was facing, warn him that he faced potential dismissal and carry out a reasonable investigation into the facts of the alleged misconduct the First Respondent acted unfairly. The most obvious step was to have arranged timely investigation and disciplinary meetings with appropriate officers of the company which were compliant with the procedural requirements for exchange of documentary and other information, possible witness evidence, and the chance for the Claimant to be accompanied. The First Respondent is referred to paragraphs 5-17 of the Code.[44]It is not fair for an employer to anticipate what it is going to hear from any particular employee and thus discount the possibility that further information may emerge. We do not agree that it was within the range of reasonable responses for the First Respondent to conclude in all the circumstances that any further investigation, discussion and/or meeting with the Claimant after 28 February 2019 would be futile and achieve nothing. The breakdown of the relationship between the Claimant and the Second Respondent did not mean that there was no possibility of another representative of the First Respondent meeting with him in order to understand his response to the disciplinary case against him. As stated above the First Respondent had the advice and assistance, for example, of Messrs Holmes and Frostick.[45]The letter of dismissal dated 6 June 2019 makes no mention of any opportunity for the Claimant to appeal his dismissal and in this respect there is a further failure by the First Respondent to take into account the relevant provisions of the ACAS Code. We find that the Claimant however took no steps to request an appeal. His evidence that he took certain steps to ask for an appeal is not consistent or credible.[46]In response to cross examination as to why he had not appealed his dismissal the Claimant gave answers which are unsupported by any documentary or witness evidence. He says that he asked his mother to intervene; she replied that she had been ‘forbidden’ to do so. There is no witness statement from Mrs Lindsay Allen to confirm this. The Claimant says that he then asked for a ‘third party’ appeal to an independent person. He said ‘I suggested it to Lindsay who went to Liz and was told that the decision had been made’. We note that this account is not contained in the Details of Complaint or in the Claimant’s witness statement/Statement of Case. Counsel for the Respondents asked the Claimant why he had not requested an appeal in writing to which the response was ‘there was very little point, it would have been an exercise in futility’.[47]The Claimant also made the wholly un-meritorious claim that the mere submission of a fit note on 7 June 2019 was sufficient to amount to a request for an appeal. We find that it was not an appeal in all the circumstances since the fit note was not accompanied by any other note or letter of request.[48]The complaint of unfair dismissal succeeds and a further hearing via CVP to determine the appropriate remedy will be listed in due course with a Notice of Hearing being sent out. The Claimant seeks reinstatement or reengagement. A separate case management order will be promulgated to enable efficient preparation for the Remedy Hearing. Victimisation – The Protected Act[49]In order to succeed in his claim of victimisation against both Respondents the Claimant must show that the component elements of section 27 Equality Act 2010 are in place. The statutory provision is as follows:- ‘(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act ,or (b) A believes B has done, or may do, a protected act.(2) Each of the following is a protected act….. (d) making an allegation ( whether or not express) that A or another person has contravened this Act’[50]The Case Management Summary prepared by Employment Judge Crosfill makes it clear at paragraph 7.4 that he was told that the ‘Claimant relies on complaints he raised on 28 February 2019 as being a protected act’. This is also what is stated in the Details of Complaint at paragraph 40 which states ‘the Claimant contends that him raising his concerns in meeting (sic) on 28 February 2019 amounted to a protected act’. The ‘concerns’ are set out at the preceding paragraph 23. It is clear therefore that subsection (2) (d) is the relevant part of section 27 Equality Act 2010.[51]It is also immediately clear from paragraph 23 of the Details of Complaint that almost all of the matters raised by the Claimant on 28 February 2019 do not, on their face, amount to the making of an allegation that there has been a contravention of the 2010 Act. That paragraph refers to defamation of character, bullying, lack of duty of care, being made to feel unwelcome, undervalued, and ‘like he had no future there’. There is only one phrase which references the equality legislation and that is ‘discriminated against on the grounds of his age’. The Claimant is unrepresented but has had advice from the Citizens Advice Bureau and has previously instructed two separate sets of solicitors most recently in October 2019. We conclude that he in all likelihood received some legal advice about the definition of victimisation in section 27.[52]The Claimant, under cross examination, described the purpose of the meeting on 28 February 2019, initiated by his mother to re-allocate shareholdings, and also by him ‘to make my health better and to prevent suicide by resolving work issues as I had been advised by doctors’. He was not able to identify under cross examination any particular allegation or assertion of facts which he made in that meeting which might be capable of amounting to a breach of the 2010 Act. He said, in relation to the reason for his dismissal, that there was ‘prejudice, issues and characteristics but not one prejudice which sticks out from another’. We interpret this answer to indicate that the Claimant himself cannot identify the protected act which he pleads as causative of the detriment of dismissal.[53]When asked by the Respondents’ counsel to identify allegations of discrimination in the transcript the Claimant referred to the ‘start of the meeting…I can’t see any other part except at page 50 [of the transcript] and when asked again by the Employment Judge he pointed out the text at page 28 of the transcript. He said ‘I raised that it was work issues that were causing my depression. I went into the meeting for that purpose and was told I had no future’. We have analysed the transcript and listened to the recording carefully to see if we can identify any allegation of a contravention of the 2010 Act. The ‘start’ is at page 428 of the bundle, page 50 of the transcript is at page 477 of the bundle and page 28 of the transcript is page 455 of the bundle.[54](We can see no part of the transcript and heard no part of the recording where the Claimant was told he had no future with the First Respondent. He has exaggerated this part of his evidence)[55]The Claimant opened the 28 February 2019 meeting, at page 428 of the bundle where his transcript commences, by describing the cause of his most recent illness (since January 16th 2019) as the production of a’ skills matrix’ by the Second Respondent. This is the First Respondent’s document listing each employee’s training record, ability to operate specialist machinery and what the Claimant calls ‘general skills’. It is required for the achievement of the ISO 9001 quality assurance accreditation. The ISO 9001 certification was part of the Claimant’s role. The Claimant is mortified that it shows him to have ‘the lowest skill level in the company’. He describes the document as ‘defamation against me and my character’ and later refers to slander. The Claimant does during the meeting that his depression had been made worse when he saw it.[56]However, informing the Respondents that he was ill through depression and alleging that the Second Respondent’s completion of the skills matrix was the cause does not amount to an allegation that she or the First Respondent were contravening the 2010 Act. The Claimant did not either at the start of the meeting or at any later part describe his depression as a disability by reference to the Equality Act definition nor identify himself as having the protected characteristic of disability. He made no specific or particularised allegations of disability discrimination at the start of the meeting.[57]Page 50 of the transcript (page 477) does not refer to any equality concerns at all. Page 28 (page 455) makes no reference to the 2010 Act or any alleged contravention of it. The Claimant says he has been depressed because the matrix says he has no useful skills and ’because I feel like I’ve got no future. I feel like, no matter what I do, I’ll always have you telling me that I’ve got no experience’.[58]We conclude that the relevant parts of the transcript identified by the Claimant himself in his evidence do not mention any allegation (whether or not express) that either or both of the Respondents have contravened the 2010 Act.[59]As stated in paragraph 22 above the professional advisors on the Board of the First Respondent perceived the purpose of the 28 February 2019 meeting to be an airing of the Claimant’s previous complaints from 2017 against Mr Andy Dallard. There was indeed extensive discussion of these historic issues. Page 51 of the transcript (page 478 of the bundle) records the Claimant saying he has become ill because of the Second Respondent ‘taking no action’ and, in context, this does seem to be a reference back to his previous complaints about his treatment by Mr Dallard.[60]We have therefore considered whether any protected act can be identified in relation to the connection made by the Claimant in the 28 February 2019 meeting between his desire to resolve his work issues and the previous concerns he raised in June 2017 which are recorded in emails at pages 100 -104F of the bundle.[61]At page 102, in an email to the Second Respondent dated 20 June 2017 timed at 10:18, the Claimant writes to complain bitterly about the behaviour of his line manager Andy Dallard, Production Manager, which behaviour, he says, is ‘increasingly challenging’. The Claimant says that Andy talks behind his back, slanders and tells lies about both him and his mother and seeks to damage their reputations in front of the rest of the workforce.[62]In fact the Second Respondent was shortly thereafter advised by the First Respondent’s HR Advisor, Linda Percival, to treat this as a grievance; that procedure was not for whatever reason implemented in 2017.[63]However nothing in the Claimant’s complaint/putative grievance against Mr Dallard in 2017 makes any mention of age or disability discrimination nor does it speak of any past, current or future potential contravention of the Equality Act 2010.[64]The Second Respondent wrote back on the same day (18 June 2017 at 13:01) to acknowledge the Claimant’s difficulties and frustrations and thank him for ‘opening up’. There is no reference in her email response to any alleged contravention of the 2010 Act.[65]She emailed again the following day on 19 June 2017 at 12:59 (page 104F) to express her concern that the Claimant is ill and suffering stress. ‘I’m worried about you’ is the first line of that email in which she acknowledges the difficulties of working in a family business with all the expectations it entails. By this date the Claimant had been absent as a result of stress and anxiety since 13 June 2017.He returned to work on 23 June 2017 after six days’ absence.[66]We conclude that this 2017 correspondence, identified as central to his case by the Claimant himself, and the incidents described by the Claimant therein does not make any reference to contravention of the Equality Act 2010.The Claimant instead describes an extremely fractious relationship with Mr Dallard whom he accuses of demeaning and undermining him behind his back by ‘telling lies’ and refusing to acknowledge that he has any skills or knowledge.[67]Therefore,when the Claimant refers again in the 28 February 2019 meeting to his previous grievances of ‘workplace bullying’ and a pattern of ‘defamation of character’ by Andy Dallard we are unable to conclude that the later revival of these complaints at the meeting, even in the context of a worsening of his depression, constitutes an allegation under s 27 (2) (d). Characteristically the Claimant in 2019 escalates the description of these grievances above and beyond the original language of the 2017 complaints and speaks of being ‘completely disregarded’ ‘abused day in, day out’ with no protection or care being afforded to him by the Respondents.[68]In the transcript the Claimant does make specific reference to age discrimination at page 429. This is a claim which he has withdrawn in these proceedings. He gives no particulars of this alleged contravention of the 2010 Act. The relevant case law is instructive- an un-particularised allegation of discrimination is not sufficient to amount to a protected act. The case of Fullah v Medical Research Council in 2013 UKEAT/0586/RN illustrates this point. Mr Fullah made complaints that he had been psychologically bullied, harassed, victimised and discriminated against but made no connection between this treatment and his race as a black man. Similarly the Claimant makes no connection in the 28 February 2019 meeting between the ill treatment he alleges and his age. He merely makes an assertion of age discrimination without specificity. It is not an ‘allegation [asserting] facts capable of amounting in law to an act of discrimination’. We agree with Mr Butler that the relevant paragraph of HHJ McMullen’s judgment in Fullah can be found at paragraph 22.[69]HHJ Mc Mullen refers to the case of Waters v Commissioner of Police for the Metropolis [1997] ICR 1073 in which the judge, Waite LJ, explains the reason for this principle of law when he says ‘charges of…discrimination are hurtful and damaging and not always easy to refute. In justice therefore to those against whom they are brought it is vital that discrimination, including victimisation, should be defined in language sufficiently precise to enable people to know where they stand before the law’[70]The more recent case of Chalmers v Airpoint Ltd EATS 0031/19/SS reinforces the requirement for clear words in order for any allegation to amount to a protected act. In this case Mrs Chalmers, recorded as articulate and well educated with some experience in HR matters, referred only to incidents which ‘may’ be discriminatory and gave no further details. The remainder of her grievance was expressed in clear terms.[71]The factual matrix in Chalmers is similar to the situation in this case. The Claimant is highly educated and was in receipt of expert advice. In the transcript at page 2 the Claimant speaks of four ‘options’ advised to him by ‘Citizen’s Advice’ and says ‘the second option is that there has been age discrimination against me and also a lack of duty of care’. He does not go on to identify or give details of any precise allegation of age discrimination. He refers to the ‘option’ of litigation on the topic of age discrimination. By contrast he gives specific particularised information about many of his other complaints of bullying etc. His comment about the option of an age discrimination claim is insufficient to amount to a protected act under section 27 (2) (d) of the 2010 Act.[72]In view of our finding that there no protected act the claim of victimisation cannot succeed against either Respondent and is dismissed. Failure to provide a written statement of employment particulars[73]We are certain that the Claimant was provided with a statement of initial employment particulars which complied with the stipulations in section 1 of the 1996 Act. He agrees that he was given a contract of employment in 2016 when he first when to work in the tool room. He refused to sign that contract, handed it back and kept no copy. However the legal requirement is only to give the written statement of particulars; there is no obligation under section 1 to obtain an agreed signed version acceptable to the employee. The fact that the Claimant did not sign it is irrelevant.[74]However, the Claimant’s job title did change. He was appointed as the Production Assistant and he did receive at least one pay rise. Section 4 of the 1996 Act requires an employer to give a written statement containing particulars of this type of change within one month of the changes. Pages 147-152 of the bundle is an amended contract which the Second Respondent intended to enclose with her letter to the Claimant dated 26 March 2019; by mistake it was not actually enclosed and the Claimant did not see it. He did not enquire why it had not been enclosed or ask where it was. We are satisfied however that it contains substantially the same terms and conditions as were set out in the 2016 contract because the Second Respondent told us in evidence that she over wrote the 2016 version.[75]In view of the fact that the Claimant’s complaint of unfair dismissal has been upheld we have the jurisdiction, granted by section 38 Employment Act 2002, to make an award of compensation for this breach of the section 4 requirement and we consider it just and equitable in the circumstances to award the mandatory minimum amount of two weeks’ pay. There are no circumstances which make it just and equitable to award the higher amount of four weeks’ pay. The Claimant was notified of and knew the main terms and conditions of his employment. The error in failing to formally notify him in writing of a change in his job title and salary occurred as the result of a mistake. There is no evidence that it was an act of falsehood or deceit as he claims. The Claimant already knew of the relevant changes in any event. Case Number: 3202530/2019 EMPLOYMENT TRIBUNALS Claimant: Mr R Allen Respondent: Allen Brothers (Fittings) Ltd. Before: Employment Judge B Elgot[1]The Claimant’s email sent to the Tribunal on 26 April 2021 has been treated by me as a request for reconsideration of the short holiday pay judgment dated 6 April 2021 and sent to the parties on 8 April 2021.[2]The Respondents have been invited to comment on this application but no response has been received.[3]I consider that there is no reasonable prospect of the original decision being varied or revoked and I therefore refuse the application for reconsideration.[4]The holiday pay judgment was made as a result of the parties agreeing the amount due to the Claimant in respect of accrued and unpaid holiday pay. He confirms the agreed figure in his email to the Respondents and the Tribunal dated 23 March 2021.[5]The Tribunal did decline to engage in further ‘discussion’ about how mistakes in the calculation of holiday pay had ‘occurred in the first place as this is more a matter of principal over financial reconciliation for myself’. The Tribunal determined that such a discussion about whether there was a ‘systematic approach [which] would need to be rectified with any employee who had similar issues’ or whether such issues arose ‘from spiting myself’ were not relevant to the remaining issues it had to decide and in the context of an agreement in relation to the outstanding amounts payable.[6]The Claimant’s subsequent application for reconsideration appears to be made because he says that the said agreed amount had not actually been paid by 6 April 2021 and was not received by him until 9 April 2021. He therefore says the judgment is inaccurate in stating that the ‘agreed sum has been paid’. Case Number: 3202530/2019[7]Apart from the fact that this is, put at its highest, a minor error I do not agree that there is a factual or procedural mistake in the judgment which requires reconsideration. This is because at the Hearing on 6 April 2021 (day 3) the Respondent’s Finance Manager, Mr Ian Little, told the Tribunal that the relevant sum had been paid and that assurance was accepted by the Tribunal and recorded in the judgment. The fact that the payment took three days to reach the Claimant’s bank account does not render the holiday pay judgment unsound.[8]The Claimant also objects to the deduction of tax and other deductions from the agreed holiday pay amount and alleges corporate fraud. The Claimant has already been notified that these are not matters over which the employment tribunal has jurisdiction and they are not grounds for a reconsideration of the holiday pay judgment.[1]The Claimant having succeeded in his claim of unfair dismissal against the First Respondent he is entitled to compensation as follows.[2]No order for reinstatement or re-engagement is made for the reasons stated below.[3]Basic Award under section 119 Employment Rights Act 1996 Gross weekly pay £ 519.23 x multiplier of 3 £1557.69 Less deduction of 50% for Claimant’s contributory conduct before dismissal (section 122 (2) Employment Rights Act 1996) £778.84 Net Basic Award £778.85 No Polkey deduction can be applied to a basic award.[4]Compensatory Award under section 124 of the 1996 Act The net weekly pay is £ 421.07 The weekly pension loss is £15.58 Total net weekly loss is £ 436.65 Loss of wages from effective date of termination of employment (27 June 2019) to date of assessment (27 September 2021) is assessed as 13 weeks x £436.65£ 5676.45 Add continuing loss for a further 13 weeks until 26 December 2019 at £ 271.65 Assessed by reference to the continuing loss of £436.65 which loss the Tribunal is satisfied could have been mitigated by part time earnings as described in the Reasons below of £165 per week . £ 436.65 -£165 = £271.65 13 weeks at £271.65£3531.45 There is no award for future loss of wages Add Loss of Statutory Employment Rights £500 Total Compensatory Award £5676.45+3531.45+500 £9707.90 The compensatory award is reduced by a 50% Polkey reduction. £9707.90 x 50% £4853.95 The amount of £4853.95 is increased by 20% as a result of the First Respondent’s failure to comply with the relevant ACAS Code of Practice on Disciplinary and Grievance Procedures 20% of £4853.95 is £970.79. Sub-total £ 5824.74[5]The Claimant is awarded two weeks’ pay as a result of the First Respondent’s failure to provide him with a written statement of the changes in his particulars of employment (section 38 Employment Act 2002) 2 x £519.23= £1038.46 Sub-total £ 6863.20[6]The award of £ 6863.20 is reduced by 50% as a result of the Claimant’s contributory fault by reference to section 123(6) of the 1996 Act Total £3431.60[7]The total of £4210.45 payable to the Claimant by the First Respondent within 28 days of the date that this judgment is sent to the parties is £ 3431.60 compensatory award +£778.85 basic award =£4210.45 No interest is payable on this award to date.[9]No part of this award is payable by the Second Respondent.[10]The Employment Protection (Recoupment of Benefits) Regulations 1996 (the 1996 Regulations) apply to this award and the necessary information is set out below. Reasons for this Judgment are attached.[1]A judgment on liability was sent to the parties on 8 June 2021 with written reasons. The Tribunal decided that the claims of unfair dismissal and of failure to give a statement of changes in employment particulars succeed against the First Respondent. The claim of victimisation did not succeed against either Respondent. The Second Respondent is not liable for any remedy which is awarded in respect of the successful claims. The references below to ‘the Respondent’ can therefore be taken to mean only the First Respondent unless otherwise stated.[2]A Remedy Hearing took place on 6 August 2021 and the remedy decision was reserved to 27 September 2021.[3]At the Remedy Hearing we heard evidence from the Claimant himself. The First Respondent had three witnesses consisting of the Second Respondent Mrs Elizabeth Adams, Managing Director of the First Respondent, together with Mr Andrew Dallard the Respondent’s Production Manager who was the Claimant’s line manager during his employment as Production Assistant. We also heard evidence on remedy from Mr Ian Little, Financial Controller for the First Respondent.[4]The Claimant sent two witness statements dated 5 August 2021 from Mrs Lindsay Allen which was too late to comply with the Tribunal’s Order dated 10 June 2021 for exchange of remedy witness statements. We decided that we would read these statements but not permit Mrs Allen to give oral evidence or be submitted for cross examination because the Respondent and it’s representatives would be prejudiced in being obliged to deal with this late witness and would be un-prepared to question her.[5]There was a Remedy Hearing Bundle and in accordance with the usual practice of the Tribunal we read only those documents in that bundle to which our attention was specifically directed by the parties.[6]The Claimant prepared and sent an updated Schedule of Loss dated 23 June 2021 and the Respondent submitted a Counter Schedule of Loss.[7]Both parties had the opportunity to give written submissions on remedy and we have thus taken account of the Respondent’s updated submission dated 20 August 2021 and the Claimant’s ‘written statement for remedy hearing’.[8]Reinstatement or Re-engagement The Claimant wishes to be reinstated or re-engaged under sections 114 – 117 Employment Rights Act 1996 (‘the 1996 Act’) If not reinstated in to his previous job as Production Assistant he makes it clear that he wishes to be re-engaged into a role of ‘similar stature that the Claimant has expertise in. It should also be a roll (sic) that that fairly reflects the roll (sic) and shareholding within the company in that the Claimant was considered to be the primary candidate to succeed the direction of the company as had been identified to him by an external consultant’. The Claimant explains at paragraph A of his remedy statement that he believes himself to be the inevitable successor to the position of Managing Director of the First Respondent and relies upon an independent management consultancy report authored by Mr Brian Hull a copy of which we have not seen but which he says identifies this succession as the best future course for the business. Mrs Allen maintains that this is not what the report says but we have not seen it.[9]It is the Claimant’s case that his long association as an employee, shareholder and family member means that he could and should be reintegrated into the Respondent’s organisation and will significantly contribute to its efficiency, profitability and productivity. He denigrates the evidence of Mr Dallard whom he describes as an ‘untrustworthy and deceitful character’ whose ‘unfairly prejudiced and biased’ opinion from 2017 onwards does not reflect the stance of the Respondent. He similarly invites us to conclude that Mr Little’s character is ‘inconsistent, untrustworthy and deceitful’ as proven by the fact that he has made alleged errors in the calculation of the Claimant’s holiday and sick pay. The Claimant describes Ms Adams as having a vexatious attitude towards the Claimant and ‘his side’ of the family and the ‘other half’ of the 50/50 shareholding. He says that she is thus determined to defeat him. He blames her for failing to deal with his grievances or engage in any form of mediation with him.[10]The witness statement of Mrs Lindsay Allen, the other Director of the Respondent, the Claimant’s mother with whom he lives and the Production Management Assistant working with Mr Dallard, repeats the Claimant’s assertion that ’Mr I Little and Mr A Dallard have both demonstrated over the course of their employment that their character is not trustworthy and unreliable…Both have lied to me in the past’. This statement underlines, where the Claimant is involved, a serious breakdown in working relationships in the Respondent’s organisation at a senior level.[11]S116 of the 1996 Act addresses the choice of order where a Claimant wishes to be reinstated and directs the Tribunal to consider whether it is ‘practicable’ for the employer to comply with an order for reinstatement or re-engagement and, ‘where the complainant caused or contributed to some extent to the dismissal whether it would be just to order his reinstatement or re-engagement’.[12]First, the Claimant’s intemperate and destructive description of his previous colleagues in his statement, reiterated by Mrs Lindsay Allen, serves to illustrate that it would not be practicable for him to be reinstated or re-engaged in any position within the Respondent’s organisation. He distrusts and deplores the character of three of the most senior staff including the Managing Director and Mr Dallard who is an integral part of the operational side of the Respondent’s business. There is a complete breakdown of trust within their past relationship and in any future working relationships and the Claimant has demonstrated that he is impossible to manage in all the circumstances. We accept the evidence given in paragraphs 6 and 7 of Mrs Adams’ remedy witness statement that the Claimant was, in her assessment and perception as Managing Director ’simply impossible to work with’ and that there has been an identifiable improvement since he left, as she describes in paragraph 11.[13]In addition we heard evidence that Mr Little’s assistant Michelle Faraway found dealing with the Claimant and his pay extremely challenging and Mrs Adams told us that her husband Graham Adams who is the Respondent’s International Business Development Manager may not continue working in the business if the Claimant returned. Mr Dallard and Mr Little also said that they may decide to leave the company. The Respondent’s witnesses described complaints against the Claimant from ‘Steve’ ‘Jenny’ and Wayne Martin. This is almost one third of the workforce.[14]Secondly, we do not agree with the Claimant’s assessment of these witnesses whom we found to be truthful, coherent and credible in their description of the difficulties of working with him to the extent that they felt their own health and wellbeing to be undermined. Mrs Adams summarises the stresses and difficulties in paragraph 4 of her witness statement, ‘his numerous absences and poor conduct had a very negative impact on me and the rest of the First Respondent’s workforce’.[15]The word used by the Respondent’s witnesses to describe the prospect of the Claimant’s return to work with them is ‘disastrous’. Mr Dallard gave evidence, which we find to be truthful, to the effect that the Claimant’s behaviour towards him as described in paragraphs 2 and 4 of his witness statement made him feel demoralised and worthless leading to a medical diagnosis of stress, anxiety and depression. Mr Dallard says that his relationship with the Claimant is ’broken beyond repair…I would have to consider other options [if he came back] I would not want to compromise my health by going through it all again’.[16]Mr Little directed our attention to the Claimant’s continuing practice of writing repetitive and intimidatory correspondence to him including numerous threats of litigation elsewhere than in this Tribunal (see pages 41, 42-44 and page 47 of the Remedy Hearing Bundle). He said ‘I would have to seriously consider my position should Richard rejoin the First Respondent and I would anticipate key members of the Respondent’s workforce leaving to take on opportunities elsewhere in order to avoid any further conflict’. We find that the Claimant has without foundation described Mr Little as acting ‘fraudulently’ and ‘out of spite’[17]The Claimant’s conduct of these proceedings both in hearings and in correspondence with HMCTS tribunal staff has been discourteous, contemptuous and at times aggressive. The relevance of this comment is only to underline that he apparently finds it difficult to accept authority, to accept or understand any view different from his own, or to deal with criticism or contradiction. Instead he insisted that ‘they [the Respondent] will all be held to task … its my job to ensure that the company does not go down the toilet because of their unlawful bad behaviour and fraud’.[18]At the meeting between the Claimant and the Second Respondent on 28 February 2019, when the Claimant was still employed, the tape recording and the transcript show that, despite the Claimant’s persistent categorisation of this meeting as an attempt at reconciliation/mediation and a discussion of his return to work, he does in fact engage from the commencement of the meeting in highly accusatory behaviour towards Mrs Adams including threatening her with ‘four options’ for litigation and legal challenge. She was shocked and dismayed to be faced with this unexpected challenge and she expresses those emotions on the tape recording.[19]In addition, there is no role for the Claimant to practicably return to. He has not been permanently replaced in the sense envisaged by section 116 (5) of the 1996 Act but there has been a successful restructure of the Respondent’s organisation. Mrs Lindsay Allen remains as the Production Management Assistant to Mr Dallard. There is now no Production Assistant. We find that, in accordance with his own evidence, the Claimant would be unwilling to accept a junior role such as Tool Maker or CAD Technologist not commensurate with his previous status or his future ambition. There is no vacancy for a toolmaker and the CAD technologist role is usually occupied by a university student on a temporary internship. There has been an internal promotion of an Operations Manager and the recruitment of a Business Development Manager for the UK. The ‘Orchestrate’ production planning system devised and partly implemented by the Claimant has been abandoned and he is not needed to run it.[20]In all the circumstances of this case and in view of the consistent tenor of the evidence credibly given by the Respondents’ witnesses in this Remedy Hearing we are certain that it would not be practicable to reinstate or re-engage the Claimant in the same job or in any employment comparable to that from which he was dismissed or in any other suitable employment. The Claimant has engaged in conduct which means that the Respondent has no confidence or trust in him and reinstatement or reengagement would not succeed. We are particularly persuaded by the observation of Lord Justice Underhill in the recent case of Kelly v PGA European Tour[2021]EWCA Civ 559 in the Court of Appeal that there must be ’a proper recognition that an employment relationship has got to work in human terms’. In this case we do not believe it can. Mr Dallard, for example, described having lost his identity and his ‘domain’ as a result of his treatment by the Claimant.[21]Finally, by reference to section 116 (1) (c) of the 1996 Act we are certain that the Claimant has caused and contributed to his dismissal and it is not just to order his reinstatement or re-engagement. The relevant contributory conduct is set out in our findings of fact in paragraphs 16 -39 of the Liability Judgment and may be summarised as a failure (despite knowledge and understanding of the correct procedures) to properly report or certify his sickness absences or produce fit notes in a comprehensive or timely way, a failure to communicate with the Respondent and/or to formulate his grievances in a way in which he had agreed to do on 28 February 2019. In view of his contributory fault and the fact that we have determined that, in the way set out above, the Claimant substantially contributed to a catastrophic breakdown of his working relationship with several key members of the Respondent’s staff and the Managing Director we conclude that it is not just to give the remedy of reinstatement or re-engagement.[22]Basic Award It is agreed between the parties that the correct multiplier is 3. We have determined that the correct amount for the Claimant’s gross weekly pay is £ 519.23 per week as stated in the Respondent’s Counter Schedule. This is because his pay slips, for example at page 40 of the Remedy Bundle, reveal that he was earning £ 13.644 per hour and worked for a contractual 38 hours per week. 3 x £519.23 gives a basic award of £ 1557.69. The Respondent has used a reliable online calculator to calculate the net weekly pay at £ 421.07 and we also accept this figure.[23]We are satisfied that the basic award must be reduced under section122(2) of the 1996 Act by 50% because there was conduct of the Claimant before the dismissal such that it is just and equitable to reduce the amount of the basic award. The contributory conduct is described in paragraphs 16-39 of the Liability Judgment and in paragraph 21 above. The wording of section 122 (2) refers to ‘any conduct of the complainant before dismissal’ (our emphasis). We therefore wish to emphasise that his conduct in failing to produce relevant fit notes is exacerbated by the fact that his final fit note covering the period from 22 April to 9 July 2019 was not in fact produced until the day after his dismissal. On the date of dismissal 6 June 2019 the Claimant had failed to produce fit notes for the period 16 January to 13 February 2019 and from 7 April 2019 onwards We find the Claimant’s conduct before dismissal to be blameworthy and culpable in this respect. We agree with and adopt the analysis set out in Mr Butler’s Closing Submission at paragraph 42 where he says ‘the events which triggered the dismissal decision in both the short term (lengthy unauthorised absence and no communication) and the longer term (breakdown in relations) were [the Claimant’s] fault.’ Put another way, the Claimant’s conduct was central to and causative of the decision to dismiss him.[24]Mitigation of Loss. The Claimant is under a duty to take reasonable steps to mitigate his loss. The Claimant contends that he has been too ill to work at all in any capacity since the effective date of termination of his employment because of severe and enduring mental health issues with depression and anxiety which have worsened over ’the last three years’ It is two years three months since he was dismissed.[25]We have asked ourselves whether we can safely rely upon the Claimant’s personal evidence alone because he has been an unreliable witness on several occasions and is prone to exaggeration. For example we record such instances at paragraphs 45-47 and paragraphs 54 and 69 of the Liability Judgment. He continued this pattern of evidence in the Remedy Hearing for example in mis-representing the content of his GP’s letter dated 28 April 2021 and stating that the owners of all local engineering firms are ‘Liz’s friends who would be unpleasant to me’. He wrongly said that he had handed in fit notes the day before he was dismissed when this did not happen.[26]The Claimant has asserted the unlikely scenario that he could not, despite a history of mental illness, obtain a GP appointment even by telephone for over a year despite making 100s of calls at a rate of twice a day. The nature of his evidence leads us to conclude that we need to see some corroborating medical documentation. This is an approach by the Tribunal with which the Claimant is familiar because he represented himself at a Preliminary Hearing on 10 and 11 February 2021 when we considered whether there was sufficient medical proof of his alleged disability and concluded that there was not.[27]We find that the Claimant has produced no relevant medical evidence to show that he has been unable to apply for any type of job in any location for any of the time since his dismissal or to demonstrate that it would be ‘disastrous’ for him to take up new work. The Claimant is unable to corroborate with any medical or other evidence his own assertions that he has been too ill with depression to seek or obtain work. He has not supplied his GP Notes beyond 30 October 2019. The Claimant has not worked since 6 June 2019, he has not applied for any job anywhere whether local or further afield and he has not undertaken any further education or training save that only very recently he has at the behest of his DWP job coach enrolled at Harlow College on an employability skills course commencing October 2021 to equip him to get back to work; he anticipates that his return to work may thereafter be feasible in the summer of 2022. His contacts with the charities named the Shaw Trust and Futures for You are for the purpose of obtaining advice and support; neither of those organisations directly provide work or training.[28]The Claimant has still not produced fit notes for the period 16 January to 13 February 2019 or for the period from 7 to 22 April 2019 (see paragraph 26 of the Liability Judgment). Indeed the fit note covering the period 22 April to 9 July 2019 refers to an ‘ankle fracture’ without mention of mental health difficulties.[29]He has disclosed no fit notes since 9 July 2019 until 22 March 2021. His additional documents added to the Remedy Hearing Bundle only cover the period from 22 March 2021 until ‘three months from 22 June 2021’ which is 21 September 2021. In each case he is certified as unfit to work because of anxiety and depression but it there is no medical evidence that this was the case for the intervening period from 9 July 2019 until 22 March 2021 and even the fit note covering the period from 22 April to 9 July 2019 refers to the physical injury to his ankle whilst skateboarding and not to his mental health.[30]The Claimant has shown no evidence of a referral to or treatment by any consultant, community mental health provision or to any early intervention psychiatric assessment or assistance (IAPT). He has produced no evidence of participation in any kind of counselling for his mental health problems. Despite his alleged difficulties in obtaining a GP appointment or consultation of any kind (not even a remote discussion) during the covid 19 pandemic from March 2020 onwards he has demonstrated no other efforts to obtain medical help and treatment. There is therefore no objective expert information before us about his ability to obtain and engage in any kind of work and earn money to mitigate his financial losses.[31]The Claimant relies upon a letter which he says covers the ‘whole period since 2017’ dated 28 April 2021 from his GP Dr Shah Ali who confirms that he has been taking an antidepressant named Sertraline (the dose is not specified) since February 2019 together with beta blockers for anxiety. The GP describes the likelihood of moderate illness and says that mental illness in the Claimant’s case has ‘significant’ effects for a number of reasons. In no part of that letter does Dr Ali state that the Claimant has a ‘long term and continuous sickness due to mental health until at least 21/09/21 to be under review’ as the Claimant describes it in his Schedule of Loss. His GP does not opine in that letter that the Claimant must not live alone, should not move from his home town of Burnham on Crouch, should not commute ‘large distances’, should not work at all and/or should give himself ‘time in order to represent myself in these cases’. The Claimant’s assertion that this advice is ‘inherently implied’ does not add up. Dr Ali recommends the therapeutic effect of occasionally taking a holiday with friends but gives no dates.[32]We are unable to agree with the Claimant that this GP letter demonstrates unequivocally that it has been reasonable for him not to engage in any form of work since his dismissal (on notice) and/or not to seek work outside his local area. The precise injunction from a doctor is not clear from the Claimant’s evidence. The letter from Dr Ali simply does not state that ‘the Claimant was advised not to return to work and was signed off sick due to anxiety and depression since 2019’ as the Claimant says in paragraph C of his remedy statement.[33]The Claimant has a university degree in Mechanical Engineering and three years of commercial experience with the Respondent undertaking a variety of work . He also undertook earlier work experience with the Respondent as a student. He does not, despite his frequent statements to the contrary, have the stigma of a dismissal for gross misconduct. He was dismissed on notice for reasons relating to his conduct. He has been well enough to conduct complex litigation in the Employment Tribunal and to undertake frequent written enquiries for information in his capacity as a shareholder. He is articulate in writing and has been able to compose lengthy analytical letters to HMCTS and the Information Commissioner complaining of data protection and other breaches. This suggests that he could certainly undertake a remote working role even if unable to regularly live or travel away from home or to and from work.[34]We have seen the wide range of engineering job vacancies included in the Remedy Bundle at pages 233-235 which the Second Respondent has discovered and which are within a reasonable travelling distance of the Claimant’s home up to 50 miles. There are a number of suitable vacancies notified to the Claimant as a result of his own job searches nationwide for which the Claimant has not even expressed an interest. We do not accept the Claimant’s evidence that all of the most local engineering firms identified by the Respondent have close personal contacts with the Second Respondent who might be ‘unpleasant’ to him and damage his welfare. Mrs Adams denies that this is the case. Indeed it would be to the advantage of the Respondent not to sabotage the Claimant’s search for new employment because if he obtains work it reduces the amount of his potential losses in the unfair dismissal case.[35]We are satisfied that it was reasonable for 13 weeks following his dismissal ( on notice and paid to 27 June 2021) for the Claimant to recover from the emotional shock and upset of his dismissal from the family firm in which he says he had invested his entire future. The particular circumstances of this case involve a very personal dimension and family dynamic as described in paragraphs 11 and 12 of the Liability Judgment. The Claimant reasonably needed to re- calibrate his personal and career options and he also decided to embark on complex actual and threatened litigation. 13 weeks x £ 436.65 (£421.07 net weekly wage plus pension loss of £ 15.58 per week) is £ 5676.45 The pension loss has been calculated by reference to the 3% employer’s pension contribution paid by the Respondent on gross wages.[36]Thereafter we find that the Claimant even if unable to find or, on his own evidence of his illness, contemplate finding equivalent work to that which he did for the Respondent nevertheless could have obtained some part time work with lower status and wages but which would nonetheless ‘tide him over’ financially, provide potentially therapeutic activity and reasonably mitigate his financial losses. We mean that he could reasonably have obtained work in the hospitality industry, delivery driving or similar less skilled and less demanding work for around 20 hours per week and have earned at least the adult minimum wage of £ 8.21 as it was fixed in 2019. This would have given him earnings of around £165 weekly (tax unlikely to be payable).[37]We find that there are several small towns quite close to Burnham on Crouch where the Claimant could work. He lives within driving distance of Chelmsford and Southend. Burnham on Crouch is on the commuter rail line to London. The period to which this decision on mitigation of loss refers is June to December 2019. In other words before any widespread recognition of the covid 19 pandemic and its effects and before the lockdown in March 2020. After the end of December 2019 we are satisfied that the Claimant should have fully mitigated his loss and could have obtained new employment at the same or similar level of pay which he received from the Respondent. He has produced no corroborative evidence to support his contention that this was not possible. He has conceded that there are suitable jobs available to him across a broad range of engineering opportunities.[38]His losses would then be reduced as follows:- £436.65 less £165 =£271.65 weekly loss of wages We find it reasonable for this level of loss to continue for a further 13 weeks to 26 December 2019. £271.65 x 13 is £ 3531.45[39]The compensatory award is £ 5676.45 plus £ 3531.45 = £9207.90 to which we add the sum of £500 for the loss of the Claimant’s statutory employment rights which it will take him two years to regain. The total, before any reductions, is £9707.90.[40]Polkey Reduction What is invariably called the ‘Polkey reduction’ applies to the compensatory award. It is an amount deducted from the compensatory award to reflect what the Tribunal assesses as the percentage chance that although a dismissal was procedurally unfair it would have happened in any case at a later stage. Of course the relevant time is the date of the dismissal itself on June 2019.[41]We have exercised our discretion to fix that reduction at 50% which means that the compensatory award is reduced to £4853.95. It is just and equitable to reduce the award by this proportion.[42]The Respondent submits that the appropriate Polkey reduction is 75% because the nature of the Claimant’s misconduct including an overall failure to communicate with the Respondent taken together with the obvious relationship breakdown between the Claimant and the Second Respondent and with other staff members suggests that the Claimant would not in any event have engaged meaningfully or constructively with a fair formal process. This is a persuasive argument in view of the confrontational nature of the Claimant’s approach particularly in the meeting of 28 February 2019 and his apparent subsequent determination not to communicate with either Respondent even after, for example, Ms Adams amended the skills matrix to which the Claimant took such disproportionate exception.[43]We agree with the analysis of Mr Butler at paragraph 35 (c) (iv) of his Submission. There is no evidence even from Mrs Allen directly that she gave any detailed information of any kind to the Respondent about the reasons for the Claimant’s absence and his up to date situation. She only says that she ‘acquired sick notes from Richard and provided them for anyone who was requesting (our emphasis) them’. She does not mention the provision of the proper timely information in accordance with company policies of which the Claimant was aware. The Claimant’s argument that all his actions and omissions over the relevant period were authorised by Mrs Allen and duly notified remains weak and was unlikely to succeed at a formal disciplinary meeting.[44]However, we have, as we are required to do, considered whether at the relevant time on 6 June 2019 there was actually such a high chance as 75% that the Claimant would be dismissed anyway. We have taken into account the possibility, not cited by counsel for the Respondent, that a family reconciliation (perhaps professionally facilitated by way of an external mediation or similar service) may have rescued the soured personal dynamic between the Claimant and the Second Respondent given that they are close relatives.[45]Secondly, we have taken into account the possibility that the disciplinary and/or an appeal hearing could feasibly have been conducted by someone other than the Second Respondent. One of the advisors to the Board, Messrs Frostrick and Holmes, may have been asked to intervene or the Respondent’s Human Resources consultants may have suggested a suitable third party investigator and a separate adjudicator.[46]In those circumstances we conclude that although there is still a 50% chance that the Claimant would have been dismissed in any event there is also a 50% chance that a lesser sanction than dismissal may have been applied, that the Claimant would have been given another opportunity to comply with the conduct and sickness absence rules of the Respondent and that his employment may have survived especially in the context that he had no earlier formal warnings.[47]Uplift for unreasonable failure to follow the ACAS Code on Disciplinary and Grievance Procedures It is the Claimant’s argument that no formal verbal and written warnings under the Respondent’s disciplinary or sickness absence policies were sent to him regarding the conduct for which he was eventually dismissed. Certainly there was evidence that considerable forbearance was exercised towards the Claimant’s frequent absences between the start of his employment and the beginning of his final period of long term absence in January 2019. This is probably because he was a close family member living with one of the co-Directors who is his mother Lindsay Allen. The Respondent’s witnesses gave consistent evidence that he believed that he could come and go as he wished without remonstration or sanction, that his attendance was unreliable and that he was not formally disciplined about this.[48]However following the 28 February 2019 meeting which the Claimant himself describes as his attempt to negotiate a return to work the Respondent promptly wrote to him to initiate and continue a dialogue about his absence, the reasons for it and his failure to properly certify and explain his absence and/or pursue his grievances. Paragraphs 36-38 of the Liability Judgment set out the facts in this respect. That correspondence was consistently and promptly pursued.[49]The Claimant says that he received none of the emails sent by Mrs Adams who ‘must have known’ that he would not see them and thus deliberately shut him out of this dialogue. We do not agree with this assertion. The Claimant saw the attachment (the amended skills matrix) appended to the email of 15 March 2019 which his mother Mrs Lindsay Allen showed him. He received a letter dated 26 March 2019 sent by recorded delivery which enquires about the missing fit notes and asks him again if he wishes to pursue his grievances against Mr Dallard and/or the First Respondent.[50]It is not the case therefore that the Respondent made no attempt at dialogue or investigation and initiated no relevant enquiries before dismissing the Claimant. It is not the case that he had no idea what case he had to answer and what serious concerns the Respondent had about his conduct and attendance. He had an opportunity to respond to that case in correspondence but did not do so. An increase in the compensatory award of the maximum 25% is therefore not appropriate. These are not circumstances in which the Respondent did nothing at all to follow the ACAS procedure.[51]However as stated in paragraphs 42-44 of the Liability Judgment there was no attempt to hold a final disciplinary meeting with any senior representative of the Second Respondent as a chance for the Claimant, with or without representation, to explain and/or mitigate his actions and omissions in the context of his ill health as he then experienced it or to produce evidence of his unhappiness and difficulties. We do not agree with the Respondent’s submission that the breakdown of the relationship between the Claimant and Mrs Liz Adams meant that such a meeting was futile. The Respondent was at liberty to find and appoint a neutral third party who might carry out the disciplinary hearing; we have suggested the advisors to the Board as a possibility and the Respondent also had professional Human Resources consultants who may have assisted.[52]Put simply, the Claimant was not given a final chance to explain himself and respond to the allegations against him.[53]In addition he was not advised, as the ACAS Code requires, of his right to appeal his dismissal. There is considerable confusion and contradiction of evidence as to whether he did in fact try to appeal via Mrs Allen but it is not necessary for us to resolve this issue. The obligation of the Respondent is to advise clearly that such a right of appeal exists and state how it is to be exercised.[54]In all the circumstances we conclude that a percentage uplift of 20% is appropriate. £ 4853.95 uplifted by 20% (£970.79) is £ 5824.74[55]Failure to provide written particulars of a change of terms of employment This award has already been calculated as two weeks’ pay £519.23 x 2 = £1038. 46 Sub – total is £5824.74 + £1038.46 = £ 6863.20[56]Compensatory Award - Contributory Fault By reference to section 123 (6) of the 1996 Act we are satisfied that by his actions the Claimant caused and contributed to his dismissal to the extent of 50 % and that the said conduct was culpable and blameworthy. Our detailed findings in this respect are set out in the Liability Judgment and in paragraph 23 above. £6863.20 x 50 % is £3431.60 Final Total The compensatory award £3431.60 plus the basic award of £ 778.85 gives a final total of £ 4210.45 payable by the First Respondent to the Claimant within 28 days of the date on which this Judgment and Reasons are sent to the parties. Recoupment under the 1996 Regulations The relevant information for use by the Department for Work and Pensions in any recoupment notice is as follows:- The monetary award is £3431.60 The prescribed element is £ 3431.60[3]The non-prescribed element is nil. The amount by which the monetary award exceeds the prescribed element is nil.[4]The period to which the prescribed element is attributable is 27 June 2019 to 26 December 2019 (26 weeks)