Employment Judge Mr. M. SalterIn person for claimantDate 7 December 2023
JUDGMENT
By consent it is agreed that the email from the Respondent to the Claimant of 26th April 2021 at 4:57pm is admissible and will be included in the bundle for Final Hearing. JUDGMENT[1]The Tribunal reconsidered the decision to initially reject the Claimant’s ET1. It determined that the Legal Officer had failed to appreciate that:a. Al Madaar (the entity named in the ACAS Early Conciliation Certificate) is an unincorporated association; andb. That Jamah Tucker, the person named as the Respondent in the ET1 was the chair of the trustees of that association; andc. That she had not considered (or had given no reasons) as to whether the difference in names was ‘an error’ in relation to the named Respondent such that it would not be in the interests of justice to reject the ET1 for the purposes of Rule 12(2A) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.[2]The Tribunal determined that if there was an error made by naming Jamal Tucker as a Respondent then it was ‘an error’ and that it was not in the interests of justice to have rejected the ET1. Accordingly the ET1 is treated as having been presented on 9 May 2021.[3]The Claimant’s claim for unfair dismissal brought pursuant to Part X of the Employment Rights Act 1996 is well founded and succeeds.a. The Claimant was continuously employed by the Respondents (or deemed to be continuously employed pursuant to the Transfer of Undertakings Protection of Employment etc) Regulations 2006 and/or Section 218 of the Employment Rights Act 1996) from 15 February 2020.b. The Claimant is entitled to a basic award of £456.00 calculated on the basis that: i. ‘one weeks’ pay’ was £114 ii. The Claimant was continuously employed for 4 full years; and iii. That she was over the age of 22 and under the age of 41 for each of those 4 years; and therefore iv. Her basic award is 4 x £114 = £456.00[4]Pursuant to section 123 of the Employment Rights Act 1996 the Tribunal determined that the Claimant’s employment would have terminated by reason of resignation or dismissal taking effect on 15 April 2021.[5]The Tribunal had insufficient time to determine the level of compensatory award should be made to the Claimant and has made directions for the determination of any remaining dispute.[6]The Claimant’s claim for direct discrimination because of sex contrary to Sections 13 and 39 of the Equality Act 2010 is not well founded and is dismissed.[7]The Claimant’s claim for notice pay brought pursuant to the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 is well founded and succeeds. The Tribunal find that the earlies date that the Claimant’s contract could lawfully be terminated under its terms was 15 April 2021.[8]The Tribunal had insufficient time to calculate what, if any loss and damage the Claimant has suffered as a consequence of the Respondents breach of contract and had made directions for the resolution of any dispute.[9]The Claimant’s claim for arrears of wages brought pursuant to Part II of the Employment Rights Act 1996 is well founded to the extent that:a. the Respondents had a unilateral right to vary the Claimant’s hours of employment at the commencement of each academic year but not her rate of pay; andb. That the reduction of the Claimant’s rate of pay from £12:00 per hour to £8.50 was unlawful.c. The Respondent made unlawful deductions from the Claimant’s wages in September, October and November 2020 in the amounts shown below: i. September the Claimant was entitled to be paid £373.09 but was paid only £264.27 an unlawful deduction of £108.82 ii. October the Claimant was entitled to £373.09 but was paid only £264.27 an unlawful deduction of £108.82. iii. November the Claimant was entitled to £373.09 but was paid only £211.42 an unlawful deduction of £161.47.d. The total sum unlawfully deducted from the Claimant’s wages is £379.31.[10]The Respondent’s counterclaim brought pursuant to the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 succeeds to the extent that the Claimant is indebted to the Respondent in respect of 24 hours and 2 minutes paid at the rate of £12 per hour but not worked. The sum to which the Claimant is indebted to the Respondent = 24.0333 x £12 = £288.40[11]The Tribunal determined that it would not be just and equitable to uplift any of the awards due to the Claimant by reason of any failure to follow an applicable ACAS code of practice.[12]The Respondents are ordered to pay the Claimant:a.£379.31 in wages (which should be paid less any deductions required by law).b.£456.00 by way of a basic award[13]The Claimant is ordered to repay the Respondents the sum of £288.40[1]The Tribunal assessed the loss and damage caused by the Respondent’s breach of contract by dismissing the Claimant on 3 December 2020 as amounting to £1499.54. The said sum was calculated as follows:a. The Claimant was contracted to work for 9.5 hours per week for 36 weeks of each academic year.b. The Claimant was entitled to an hourly rate of pay of £12.00.c. The Claimant’s contract could not have been lawfully terminated until 15 April 2021.d. There are 19 weeks between 3 December 2020 and 15 April 2021.e. The sum due to the Claimant was calculated as being (9.5 x £12 x 36) the annual sum x (19/52) the portion of the year represented by the notice period = £1499.54. Case Number: 3203324/2021[2]The Respondent is ordered to pay the Claimant the sum of £1499.54.[3]For the avoidance of doubt this order is in addition to the orders for payment made in the judgment of the Tribunal dated 8 August 2023 Unfair Dismissal – Compensatory Award[4]The Claimant incurred the same loss over the same period as a consequence of her dismissal which the Tribunal have held to be unfair. As the Claimant has been awarded that loss as damages for breach of contract the Tribunal make no separate additional award pursuant to Section 123 of the Employment Rights Act 1996.[5]The Tribunal is satisfied that the Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply to the award made above.
REASONS
[1]On 8 December 2023 the Tribunal gave oral reasons for its determination that the Claimant had suffered a loss of £1499.54 as a result of her dismissal which was unlawful both as a breach of contract at common law and as contrary to Section 94 of the Employment Rights Act 1996. By E-mail sent on 20 December 2023 the Claimant asked for written reasons for the remedy decisions taken. She also appears to have referred back to the Tribunal’s decision recorded in our judgment dated 3 August 2023 not to uplift any award due to the Claimant by reason of any failure to follow an ACAS code of practice. These reasons deal with both matters.[2]In our liability judgment sent on 3 August we decided that the Claimant had been unfairly dismissed contrary to Section 94 of the Employment Rights Act 1996. We made a further finding by reference to Section 123 of the Employment Rights Act 1996 that any losses attributable to the dismissal should be curtailed on 15 April 2021 as we found that, had the Respondent acted lawfully, it could and would have dismissed the Claimant on that day had she not resigned any earlier. We also found that the Claimant’s dismissal was in breach of contract and that the earliest date upon which the contract of employment could have been terminated was 15 April 2021. We gave oral reasons for those decisions. A summary of why we reached those decisions is found in the reconsideration decision of the Employment Judge.[3]We had hoped that the issue of what loss the Claimant had incurred could have been dealt with at the liability hearing but the Claimant indicated that she had increased her hours in another job she had. An issue therefore arose as to whether the Claimant needed to give credit for the sums received by reason of any increase in hours. We set out in a long case management order the issues that required a further hearing. We shall not set out the full text of that order. The Claimant was ordered to give disclosure of payslips in her other employment in order that any increase in salary could be established. The parties were referred to the relevant law and the issues that the Tribunal would need to consider if the Claimant had increased her earnings during the period before 15 April 2021[4]It did not appear to the Tribunal that either party had understood the issues that we had set out in the case management order. At the outset of the hearing the Claimant was able to explain that whilst she had increased her hours in her other job she had done so after 15 April 2021. The documents that she had produced established the truth of what she was saying. Had the Claimant made that clearer at the liability hearing there would have been no need for a further hearing.[5]The Respondent did not suggest that the Claimant had failed to mitigate any loss.[6]We were able to calculate the loss caused by the dismissal. The figures are in our judgment but for completeness are repeated here.[7]The Tribunal assessed the loss and damage caused by the Respondent dismissing the Claimant on 3 December 2020 as amounting to £1499.54. The said sum was calculated as follows:a. The Claimant was contracted to work for 9.5 hours per week for 36 weeks of each academic year.b. The Claimant was entitled to an hourly rate of pay of £12.00.c. The Claimant’s contract could not have been lawfully terminated until 15 April 2021.d. There are 19 weeks between 3 December 2020 and 15 April 2021.e. The sum due to the Claimant was calculated as being (9.5 x £12 x 36) the annual sum x (19/52) the portion of the year represented by the notice period = £1499.54.[8]The Claimant has expressly asked for an explanation of why we attributed her losses to her breach of contract claim. Whether we were to award the sum of £1499.54 to the Claimant as a compensatory award for her unfair dismissal claim or as damages for breach of contract the amount of the award would be exactly the same as the method of calculation is identical. The Claimant is only entitled to recover the loss once and it was necessary to attribute the loss to either the claim of unfair dismissal or the claim for breach of contract brought under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. In the judgment the loss has been awarded under the breach of contract claim. The reason for so doing was that if it were awarded under that heading there was no need for any enquiry as to whether the recoupment provisions applied as they have no application to claims for breach of contract.[9]If the Claimant intended to elect to have the same sum awarded as a compensatory award for unfair dismissal then she may make an application for a reconsideration. It will make no difference whatsoever to the sum awarded but the Tribunal will have to make enquiries as to whether the Claimant obtained any additional state benefits as a consequence of her dismissal. If she did those benefits would be deducted from the sums the Respondent was ordered to pay and would be recouped by the state. It is a matter for the Claimant but it is difficult to see that there is any benefit to her by taking this course. She has the benefit of a declaration that she suffered the same loss because of her unfair dismissal.[10]All other aspects of remedy were dealt with in our judgment dated 3 August 2023. The request for written reasons of that decision were withdrawn and a reconsideration judgment has been prepared. ACAS Uplift[11]We dealt with the question of whether or not to award the Claimant additional compensation by way of an uplift by any reason of the Respondent to follow any relevant ACAS code of practice in our oral reasons and in our judgment dated 3 August 2023. In an e-mail sent to the Tribunal on 20 December 2023 the Claimant appears to seek a reconsideration. She would be out of time for doing so if her request related to our judgment of 3 August 2023 but in any event the point has been dealt with in a response to her request for a reconsideration of that judgment made at the time.[12]It appears that the Claimant has completely misunderstood what we said in paragraph 11 of our judgment of 3 August 2023 and/or our oral reasons. She appears to believe that we declined to award an uplift because of some failure by her. That is not what the paragraph actually says although it could just about be read in that way. The Claimant then suggests, quite rightly, that she did engage in Early Conciliation and obtained a certificate from ACAS to that effect. That is not a ‘code of practice’ and has no bearing on any uplift. She sets out the steps that she took to resolve her grievances. These are not in dispute.[13]Our reconsideration decision explains our finding that there is no ACAS code of practice that is engaged where, as here, a Respondent mistakenly assumes that an employee has resigned and treats the contract as at an end. We did accept that the ACAS Code of Practice on Discipline and Grievances at Work was engaged in respect of the Claimant’s grievance. We accepted that there was a meeting and an investigation and outcome produced by the Trustees. The outcome letter did not in terms state that an appeal was available but offered a further meeting. That is a minor breach of the code. We took into account all the surrounding circumstances and declined to uplift any award to the Claimant.[14]We hope that this explanation is sufficient to make it clear to the Claimant that we did not find or take into account any failure to comply with an ACAS code of practice by her.
Discussion and Conclusions
[15]The Claimant is correct that the Tribunal declined to watch video evidence. The Claimant says that she had been told by the administration that it was possible for video evidence to be shown during the final hearing. She relies on the fact that she had asked the administration for facilities to do so as a reason why we ought to have permitted her to show us videos that she had taken.[16]I make the following observations as background to the decisions I reach. The preparation for this case was marked by very large amounts of correspondence for what ought to have been a very straightforward case. The file has almost 4 inches of e-mails and documents sent by the parties in advance of the final hearing. Getting towards the hearing the disputes centred around what could or could not be included in the final bundle. At the outset of the hearing the Tribunal was told that the Claimant wanted to show us videos. We asked whether those videos were filmed during the Claimant’s employment or afterwards. We were told that it was the latter. We then asked what assistance we would get from watching videos filmed after the employment ended. The Claimant explained that in her view the videos she had showed that the Respondent had forged or altered documentation. We then explored what that meant. The Claimant said, as she does in her reconsideration application, that the Respondent had taken documents, including documents that she had produced and made changes to them. When we explored that with Mr Tucker he freely accepted that he had taken documents including spreadsheets and made changes during his preparation for the hearing.[17]We indicated that if there was no dispute that documents had been changed by the Respondent and new versions included in the bundle there was no need for us to watch any video evidence showing that to be the case. We announced our decision to that effect. What was important and what we did consider was whether the explanations given by Mr Tucker for adding to or altering documents were improper or shone any light on the issues we had to decide.[18]The Claimant appears to say that she had a right to put any evidence she saw fit before the Tribunal. That is not the case. The fact that the administration had made facilities available to watch videos did not oblige the Tribunal to do so. The Tribunal is entitled to regulate its own procedure and that can include limiting the amount of evidence to that necessary to resolve the issues in dispute in a manner which is proportionate. Once we had ascertained that there was no dispute about the fact that documents had been altered it was neither necessary nor proportionate to watch the videos that the Claimant had asked us to. Whether the alterations were improper was a matter that we could and did deal with by looking at the documents, noting the nature of the alterations and listening to the parties’ explanations.[19]I have carefully read the Claimant’s application for a reconsideration. She argues that had we watched the videos that may have made a difference to our conclusion that she had not made up a shortfall in her hours. There was no dispute that there had been a shortfall as it was referred to in contemporaneous text messages. We accepted Mr Tucker’s explanations about the reasons he had made changes to documentation. He told us and we accepted that as the hearing had approached he had taken original records and attempted to calculate what the Claimant had worked and what she had been paid for. We did not regard that explanation as being sinister in any way. Categorising such changes as forgeries was hyperbole and unjustified. Regrettably the parties relationship was so badly damaged that such language was used by both parties throughout the hearing.[20]I have reached the conclusion that the Claimant has no reasonable prospect of showing that had we acceded to her application to watch videos the purpose of which was to show that documents had been altered has no reasonable prospect of success. Point (2) - reconsideration of the ‘termination date’[21]This is a reference to paragraph 4 of our judgment. We had decided that the Claimant had been dismissed. It was necessary for us to ask ourselves what would have happened had the Respondent not dismissed the Claimant unfairly. The requirement to address this matter is implicit in Section 123 of the Employment Rights Act 1996. This of course requires the Tribunal to consider a counterfactual situation and to ask what this employer would have done. The test we applied was that suggested in Polkey v AE Dayton Services Ltd [1987] UKHL 8 and further explained in Software 2000 Ltd v Andrews [2007] ICR 825]. We were satisfied that the Respondent had a genuine business need to vary both the Claimant’s hours and her rate of pay. The Claimant had been asked to, but had declined, a more responsible position. Mr Tucker decided that he would change the model of employing tutors to reflect the fact that there was a probability of a high turnover of staff. As such he decided to employ more tutors to work less hours. He decided that he should pay all the tutors including the Claimant the same wages. The Charity was at this time in desperate financial straits and owed its landlord a considerable sum in rent. The rate of pay offered was intended to be the prevailing national minimum rate but Mr Tucker had not kept himself up to date with the relevant rates of pay. We found that had he acted fairly he would have imposed the same cut in hours and offered the Claimant the national minimum wage. We found that he could have done so lawfully and fairly had he indicated that any such changes to pay would only be implemented upon lawful notice. We found that the Claimant would not have accepted those changes. It followed that on our findings the Claimant would have been dismissed on 15 April 2021.[22]The grounds in the application focus exclusively on the dismissal which, in agreement with the Claimant we have found to be unfair. She does not say anything in her application to suggest that on the evidence it was not open to us to reach our conclusions that had the Respondent acted fairly it would still have sought to implement the changes it had proposed (albeit with the correct rate of NMW). We found that that was a potentially fair reason for a dismissal. We had a solid evidential basis for our finding that those changes would have been unacceptable to the Claimant as she had said that she was considering her resignation in response to the original proposals. We did not believe that correcting the rate of NMW would have made a difference to her view that she would not chose to stay. The Claimant appears to argue that the unfairness of the dismissal is a matter that we needed to take into account when assessing how long the relationship would have continued. Whilst we accept that we need to consider what this employer would have done we have concluded that the Respondent’s business needs were a potentially fair reason for the dismissal. The fact that the Respondent had acted unfairly was principally because of its mistaken view that there was a resignation. Had it not done so it could have quite fairly given the Claimant a ‘take it or leave it’ option. We found that the Claimant would have refused such a proposal. Our views about the unfairness of the actual dismissal do not alter that conclusion.[23]I find that the Claimant has no reasonable prospects of persuading the Tribunal to vary its finding that the employment could and would have ended lawfully on 15 April 2021. The reasons given at the time and summarised above were made on the basis of the evidence we heard and reflect the findings of fact that we made. Point (3) - The Sex Discrimination Claim[24]There were three aspects to the Claimant’s claims of sex discrimination. Summarising the Further Particulars provided by the Claimant these were: 24.1. That Mr Tucker did not accept the Claimant’s position in the dispute and had dismissed her; and 24.2. That the Respondent had withdrawn from Islamic arbitration; and 24.3. That Mr Tucker, through the trustees had suggested that the Claimant’s brother in law act as a mediator.[25]It is not entirely clear which of the three sex discrimination claims the application to reconsider is aimed at. As such I shall assume that the Claimant wants all three to be the subject of her application.[26]When we decided these claims we did so by reference to the following self-direction on the law that we needed to apply.[27]The standard of proof that we must apply in every case is the civil standard that is the balance of probabilities. In other words, we must decide whether it is more likely than not that any fact is established.[28]The burden of proof in respect of all claims brought under the Equality Act 2010 is governed by section 136 of that act the material parts of which are: 136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[29]Accordingly, where a claimant establishes facts from which discrimination could be inferred (a prima facie case), then the burden of proving that the treatment was in no sense whatsoever unlawful passes to the respondent. The proper approach to the shifting burden of proof has been explained in Igen v Wong [2005] ICR 9311 which approved, with some modification, the earlier decision of the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. Most recently in Base Childrenswear Limited v Otshudi [2019] EWCA Civ 1648 Lord Justice Underhill reviewed the case law and said: 17. Section 136 implements EU Directives 2000/78 (article 10) and 2006/54 (article 19), which themselves derive from the so-called Burden of Proof Directive (1997/80). Its proper application, and that of the equivalent provisions in the pre-2010 discrimination legislation, has given rise to a great deal of difficulty and has generated considerable case-law. That is not perhaps surprising, given the problems of imposing a two-stage structure on what is naturally an undifferentiated process of fact-finding. The continuing problems, including in particular the application of the principles identified in Igen Ltd v Wong [2005] EWCA Civ 142, [2005] ICR 93, led to this Court in Madarassy v Nomura International plc [2007] EWCA Civ 33, [2007] ICR 867, attempting to authoritatively re-state the correct approach. The only substantial judgment is that of Mummery LJ: it was subsequently approved by the Supreme Court in Hewage v Grampian Health Board [2012] UKSC 37, [2012] ICR 1054. In Efobi v Royal Mail Group Ltd [2017] UKEAT 0203/16, [2018] ICR 359, the EAT held that differences in the language of section 136 as compared with its predecessors required a different approach from that set out in Madarassy; but that decision was overturned by this Court in Ayodele v Citylink Ltd [2017] EWCA Civ 1913, [2018] ICR 748, and Madarassy remains authoritative. 18. It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy. He explained the two stages of the process required by the statute as follows:(1) At the first stage the claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the tribunal could conclude that the respondent ‘could have’ committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 57. ‘Could conclude’ in section 63A(2) [of the Sex Discrimination Act 1975] must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. …”(2) If the claimant proves a prima facie case the burden shifts to the respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim.” He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.[30]Inferences can only be drawn from established facts and cannot be drawn speculatively or on the basis of a gut reaction or ‘mere intuitive hunch’ see Chapman v Simon [1994] IRLR 124 see per Balcombe LJ at para. 33 or from ‘thin air’ see Chief Constable of the Royal Ulster Constabulary [2003] ICR 337.[31]Discrimination cannot be inferred only from unfair or unreasonable conduct Glasgow City Council v Zafar [1998] ICR 120. That may not be the case if the conduct is unexplained Anya v University of Oxford [2001] IRLR 377, CA. Whilst inferences of discrimination cannot be drawn merely from the fact that the Claimant establishes a difference in status and a difference treatment see Madarassy v Nomura International plc [2007] ICR 867 ‘without more’, the something more “need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred” see Deman v Commission for Equality and Human Rights [2010] EWCA Civ 1279 per Sedley LJ at para 19.[32]Where there are a number of allegations each single allegation of discrimination should not be viewed in isolation, but the history of dealings between the parties should be taken into account in order to determine whether it is appropriate to draw an inference of racial motive in respect of each allegation Anya v University of Oxford and Qureshi v Victoria University of Manchester and Another (Note) [2001] ICR 863, EAT.[33]Section 13 of the Equality Act 2010 contains the statutory definition of direct discrimination. The material part of that section read as follows: “(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2) If the protected characteristic is age then A does not discriminate against B if A can show that A’s treatment of B is a proportionate means of achieving a legitimate aim.”[34]In order to establish less favourable treatment it is necessary to show that the claimant has been treated less favourably than a comparator not sharing her protected characteristic. Paragraphs 3.4 and 3.5 of the statutory code of practice say: 3.4 To decide whether an employer has treated a worker ‘less favourably’, a comparison must be made with how they have treated other workers or would have treated them in similar circumstances. If the employer’s treatment of the worker puts the worker at a clear disadvantage compared with other workers, then it is more likely that the treatment will be less favourable: for example, where a job applicant is refused a job. Less favourable treatment could also involve being deprived of a choice or excluded from an opportunity. 3.5 The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated – or would have treated – another person.[35]Section 23 of the Equality Act 2010 provides that any comparator must be in the same, or not materially different, circumstances. What is meant by ‘circumstances’ for the purpose of identifying a comparator it is those matters, other than the protected characteristic of the claimant, which the employer took into account when deciding on the act or omission complained of see - MacDonald v Advocate-General for Scotland; Pearce v Governing Body of Mayfield Secondary School [2003] IRLR 512, HL. Where no actual comparator can be identified the tribunal must consider the treatment of a hypothetical comparator in the same circumstances. Paragraphs 3.22 – 3.27 say (with some parts omitted): 3.22 In most circumstances direct discrimination requires that the employer’s treatment of the worker is less favourable than the way the employer treats, has treated or would treat another worker to whom the protected characteristic does not apply. This other person is referred to as a ‘comparator’. Who will be an appropriate comparator? 3.23 The Act says that, in comparing people for the purpose of direct discrimination, there must be no material difference between the circumstances relating to each case. However, it is not necessary for the circumstances of the two people (that is, the worker and the comparator) to be identical in every way; what matters is that the circumstances which are relevant to the treatment of the worker are the same or nearly the same for the worker and the comparator. Hypothetical comparators 3.24 In practice it is not always possible to identify an actual person whose relevant circumstances are the same or not materially different, so the comparison will need to be made with a hypothetical comparator. 3.25 In some cases a person identified as an actual comparator turns out to have circumstances that are not materially the same. Nevertheless their treatment may help to construct a hypothetical comparator. 3.26 Constructing a hypothetical comparator may involve considering elements of the treatment of several people whose circumstances are similar to those of the claimant, but not the same. Looking at these elements together, an Employment Tribunal may conclude that the claimant was less favourably treated than a hypothetical comparator would have been treated. 3.27 Who could be a hypothetical comparator may also depend on the reason why the employer treated the claimant as they did. In many cases it may be more straightforward for the Employment Tribunal to establish the reason for the claimant’s treatment first. This could include considering the employer’s treatment of a person whose circumstances are not the same as the claimant’s to shed light on the reason why that person was treated in the way they were. If the reason for the treatment is found to be because of a protected characteristic, a comparison with the treatment of hypothetical comparator(s) can then be made.[36]An explanation of the differing ways in which treatment might be because of a protected characteristic was given in Amnesty International v Ahmed [2009] IRLR 884 by Underhill P (as he was). He said'33. In some cases the ground, or the reason, for the treatment complained of is inherent in the act itself. If an owner of premises puts up a sign saying “no blacks admitted”, race is, necessarily, the ground on which (or the reason why) a black person is excluded. James v Eastleigh [Borough Council [1990] IRLR 288] is a case of this kind. There is a superficial complication, in that the rule which was claimed to be unlawful – namely that pensioners were entitled to free entry to the council's swimming-pools – was not explicitly discriminatory. But it nevertheless necessarily discriminated against men because men and women had different pensionable ages: the rule could entirely accurately have been stated as “free entry for women at 60 and men at 65”. The council was therefore applying a criterion which was of its nature discriminatory: it was, as Lord Goff put it (at p.294, paragraph 36), “gender based”. In cases of this kind what was going on inside the head of the putative discriminator – whether described as his intention, his motive, his reason or his purpose – will be irrelevant. The “ground” of his action being inherent in the act itself, no further inquiry is needed. It follows that, as the majority in James v Eastleigh decided, a respondent who has treated a claimant less favourably on the grounds of his or her sex or race cannot escape liability because he had a benign motive.34. But that is not the only kind of case. In other cases – of which Nagarajan is an example – the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, ie by the “mental processes” (whether conscious or unconscious) which led the putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions) …'[37]The proper approach to deciding whether the treatment was afforded ‘because of’ the protected characteristic is to ask what the reason was for the treatment. If the protected characteristic had a significant influence on the outcome then discrimination will be made out see - Nagarajan v London Regional Transport [1999] UKHL 36; [1999] IRLR 572.[38]The reason for the unlawful treatment need not be conscious but may be subconscious. In Nagarajan Lord Nicholls said: ‘I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did.’[39]Amnesty International v Ahmed is authority for the proposition that conduct can amount to unlawful discrimination despite it being imposed for benevolent reasons.[40]The manner in which the Claimant puts her reconsideration application is not entirely clear. She does not describe her complaints in exactly the same way as she did in her further information of 7 January 2022 or as presented before us where the three allegations summarised above were the only matters dealt with by either party. We dealt with the claims as described in the Claimant’s witness statements which mirror her complaints in her further information.[41]We had understood the Claimant’s complaints as being not only the indication that new terms in relation to hours and rate of pay were being proposed on what was in effect a take it or leave it basis but also the manner in which Mr Tucker corresponded with the Claimant both in tone and in his decision to treat the Claimant as having resigned.[42]We accepted that Mr Tucker erroneously purported to accept the Claimant’s tentative indication that she might resign. We accepted that the tone of Mr Tucker’s correspondence changed from its previously friendly and respectful tone into a tone that was indignant.[43]We accepted that the Claimant could reasonably regard that treatment as a detriment. The issue for us was whether that treatment was because of sex. In answering that question we had to carefully apply our self-direction in respect of the burden of proof. We return to that below.[44]We found that when the Claimant brought a grievance the Trustees invited her to a meeting to discuss her grievances. After asking Mr Tucker for his responses to what the Claimant had told the trustees the trustees rejected the grievance. We further found that having initially agreed to a proposal for Islamic arbitration the Respondent, and in particular Mr Tucker, declined to take part. However at the point when he did so the Claimant had, upon advice from her Union, declined to treat the arbitration as binding.[45]We accepted that having a grievance dismissed by the trustees and being told that the other party was not prepared to go ahead with an arbitration would be something that the Claimant could reasonably regard as a detriment.[46]There was no dispute that Mr Tucker through the trustees had suggested to the Claimant that she might like to involve her brother in law as a mediator in their dispute. The Tribunal assumed in the Claimant’s favour that she might reasonably consider this to be a disadvantage. We did so only on the basis that the Claimant resented the suggestion of involvement of a male relative.[47]The law required us to ask ourselves whether the Claimant had proven facts which, absent an explanation from the Respondent we could infer that the treatment was ‘because of’ sex. We reminded ourselves that treatment will be because of sex if sex played any part whatsoever in the decision.[48]In assessing whether we could draw an inference we had regard to the matters that the Claimant has set out in her table of evidence supporting this point. We stepped back and had regard to the totality of the dealings between the Claimant, Mr Tucker and the Trustees.[49]We needed to take account of the fact that up to September 2020 the relationship between the Claimant and Mr Tucker, as evidenced in several text messages had been good. He had accommodated a wish by the Claimant to change her hours. When he was considering stepping back from managing the teaching part of the Charity he turned to the Claimant and offered her the position that he had occupied.[50]Against this we had regard to the evidence that once the Claimant had declined his offer of further responsibility Mr Tucker sought to impose changes which would assist the charity but would disadvantage the Claimant. We had regard to the fact that this culminated in the Claimant being dismissed when Mr Tucker purported to accept her resignation. We accepted that the tone of the correspondence thereafter was indignant and at times dismissive.[51]We also had regard to the fact that the Claimant’s grievance was dismissed by the trustees and was followed by the suggestion that the Claimant involve a relative (who was male). These included the dispute about wages and changes to terms that led to the dismissal. Although no party placed much weight on it in submissions we also had regard to the fact that the trustees were all male.[52]In assessing these aspects of the evidence we reminded ourselves that it would not be open to us to draw an inference of discrimination only because we regarded the Respondent’s behaviour as unreasonable.[53]A key matter to which we had regard was the fact that the Respondent had recruited only female tutors for some time. We put aside Mr Tucker’s explanation for that at the stage of asking whether any inference of discrimination could be drawn in respect of the incidents complained of. We concluded that the fact that an employer recruits a disproportionate number of women over men is not something which of itself suggests that the employer has a propensity to discriminate against women. Indeed the opposite is as likely to be true. It is easy to see a man complaining in those circumstances.[54]The Claimant’s case was that the women employed by the Respondent were treated badly. There was evidence that there were delays in paying wages to all the tutors. There was also evidence that Mr Tucker had, quite properly wrongly, organised for the Claimant to receive her full wages during the lockdown periods.[55]Having taken all the evidence into account but ignoring the explanation given by Mr Tucker we asked ourselves whether we could infer the treatment that we had found established was because of sex. We needed to treat each allegation separately but without forgetting to look at the bigger picture.[56]For the dispute about pay and conditions to be ‘because of sex’ we would have to be able to draw an inference that the Claimant’s gender was consciously or subconsciously a material reason for the treatment. Suggesting that the Claimant’s brother in law assist in mediating the dispute was because of sex might be discriminatory either if the same suggestion would not have been made to a male involved in the same type of dispute or if the suggestion that a male be asked to assist in the mediation was influenced by gender (in other words it would not have been suggested that a female be involved).[57]Taking care to put to one side the explanations of Mr Tucker we found that the facts proven by the Claimant might support an inference of the possibility of discrimination. We reminded ourselves that that is not sufficient to pass the burden of proof. What is required is that we could properly infer that the treatment was discriminatory. Taking the evidence as a whole and having regard to the points above we decided that we could not properly draw that inference in respect of any aspect of the claims. However, in case we had reached any error we went on to make findings on the basis that the burden of proof had passed to the Respondent to show that the treatment was, in no sense whatsoever, because of sex.[58]Mr Tucker gave what we found was a frank account of why he engaged more female tutors then men. He explained that he did so to accommodate the wishes of parents who used the charity. He told us that parents of girls would insist on a female teacher That parents of very young boys accepted a female teacher parents of older boys asked for male teachers. Mr Tucker suggested that he did much of that teaching himself. He made it clear that these were not views that he shared. We accepted his evidence. As this was not a matter of complaint but was a matter of evidence we did not need to consider whether the Respondent would have been able to show that engaging females to teach girls and young boys was a genuine occupational requirement which might be justified as a proportionate means of achieving a legitimate aim. What we did accept is that this very small charity felt that it had to bend to the wishes of parents to ensure its survival. We would note that if the requirement was discriminatory then of itself it discriminated in favour of women.[59]We rejected the Claimant’s suggestion that Mr Tucker employed women to exercise greater control over them. There was no real evidential basis for that. The Claimant pointed towards Mr Tucker as a person of standing in the community and there was evidence that a women might feel reluctant to stand up to Mr Tucker. Against that we had a history of respectful text messages between the Claimant and Mr Tucker and the fact that he had asked the Claimant to step up and occupy a part at least of his role.[60]In her reconsideration application the Claimant referred to a text message from Mr Tucker where he refers to having to ‘let go’ a male employee because he was not generating any money for the charity. The Claimant had seized on the phrase ‘ a big chunk’ to suggest that the male employee was paid more than her. The tribunal was not presented with any evidence from either side to establish that that was the case. We had regard that a male was dismissed in a costs cutting exercise.[61]We accepted Mr Tucker’s evidence that he genuinely believed that he had the contractual right to vary the Claimant’s hours and rate of pay at the outset of each academic year. His belief was not entirely unreasonable. We accepted that he could vary the hours depending on the numbers of students. We accepted that Mr Tucker had good business reasons for making the decisions he did. He was genuinely concerned that the high turnover in tutors would affect the charity unless greater numbers were employed and that if greater numbers were employed the charity would have to reduce pay. We accepted that he believed that it would be unfair and disruptive to pay the Claimant more than others. We further accepted that when the Claimant had objected to his proposal and indicated that she might resign he honestly believed that she had done so.[62]We accepted that Mr Tucker became indignant when challenged by the Claimant. His explanation before us was essentially that he believed that he had gone out of his way to help the Claimant and that he was very disappointed when he perceived her as criticising him.[63]We examined these explanations carefully. We reminded ourselves that it was necessary that the conduct was entirely explained by matters which were not because of sex. Having considered each element of the treatment and the explanation for it we were satisfied that however wrong and however indignant Mr Tucker was his treatment was nothing whatsoever to do with sex. He thought he had acted fairly and properly in the circumstances that existed and was indignant when challenged for that reason and that reason alone.[64]We turn then to the conduct of the grievance process and in particular to the withdrawal from Islamic arbitration. The Claimant was offered a grievance meeting. In dismissing her grievance the trustees said that they had difficulty understanding exactly what the Claimant was complaining about. The Respondent asked us to accept that the outcome of the grievance was not influenced by sex in any way. We had regard to the grievance outcome letter of 8 March 2021. That letter includes a comprehensive analysis of the events that led to the Claimant’s termination of employment. It is clear that there was a review of the evidence. The conclusion that was reached was that the Claimant had resigned. It was further concluded that the Claimant had been paid the National Minimum Wage.[65]We did not hear from the trustees and therefore we only had the correspondence and the evidence of Mr Tucker to assist us in determining if any part of their reasoning was because of sex. Having regard to the evidence we concluded that we were satisfied that whether the conclusions of the trustees were right or wrong they reached those conclusions because they matched their assessment of the evidence. There is nothing in the conclusions or the way they are expressed to suggest that sex played any part in the decision making and we found that it did not.[66]We found that it was Mr Tucker who decided to withdraw from Islamic Arbitration. We accepted his explanation that he did so because he had no confidence that the Claimant would accept the result of the arbitration as she had declined to accept that it was binding. That explanation was noting to do with sex and we accept that it encompassed the entirety of Mr Tucker’s reasons.[67]We then turned to the explanation given by Mr Tucker for the trustees suggesting the Claimant’s brother in law as a mediator. He told us that it arose from a chance meeting in a shop where the Claimant’s brother in law had said words to the effect ‘ what are you doing to [the Claimant]’ he says that a discussion ensued and it was that discussion that prompted him to suggest that the Claimant’s brother in law might assist with the dispute. It is evident from the outcome letter of the Claimant’s grievance that the Claimant’s brother in law had approached the trustees and offered some assistance. The Claimant could only give indirect evidence to contradict what Mr Tucker said. We found Mr Tucker’s explanation was true and that the explanation provided the entirety of his reasons for making the suggestion that he did. As such, even if the burden of proving that the suggestion was not discriminatory had passed to the Respondent they had discharged that burden.[68]In her reconsideration application the Claimant simply re-argues her case. That is not the purpose of a reconsideration. As set out above a party is not entitled to a second bite of the cherry repeating evidential or legal arguments that they could or should have made at a final hearing.[69]I conclude that the Claimant has no reasonable prospect of persuading the tribunal to vary or set aside its findings in respect of the sex discrimination claim. Point (4) – The Respondent’s counterclaim[70]The Claimant seeks to persuade the Tribunal that it was not open to us to accept that the Claimant has been paid for 24 hours and two minutes. This was a finding of fact made by the Tribunal. We had to deal with a conflict of evidence. As the Claimant rightly points out the position of the Respondent was not assisted by the fact that the amount of the repayment claimed had varied considerably. Mr Tucker had sought to recover overpayment of furlough monies. That aspect of the claim was rejected. What was before the Tribunal were text messages where the Claimant acknowledged that due to a change made in the academic year before her dismissal when she had reduced her hours there had been some overpayment of wages. The Claimant said that she had made up those hours. Mr Tucker said that she had not. The relevant text messages are at page 203 of the bundle. Mr Tucker had produced a spreadsheet that showed hours clocking in and out. He said that the times entered had been entered by the Claimant. We accepted that evidence.[71]The Claimant points to references where the Respondent is seeking to recover ‘corona hours’. She is correct that there was some attempts by Mr Tucker to obtain for the charity the benefit of furlough payments made to the Claimant. The fact that furlough payments were claimed for August where no salary was due. However what was clear from the evidence before us was that in addition the Respondent was referring to hours overpaid in 2018/2019. That is clear from the text messages in 2020 where there is a clear reference to the hours that needed to be made up as being ‘last year’. That had nothing to do with covid.[72]We were required to resolve a conflict of evidence. We did so by accepting the evidence of Mr Tucker – supported by the figures in his spreadsheet in turn drawn from records kept by the Claimant that there remained a small shortfall. We had to ask ourselves whether the Claimant’s account that she had made up all those hours was more likely than not. We decided that she had not shown that.[73]The Claimant says that the spreadsheet could have been created by the Respondent. That was a matter that to some extent she explored during the hearing. We did not accept that the document was a fabrication.[74]As set out above a reconsideration application is not an opportunity to rehearse arguments and evidence that were before the tribunal when the original decision was made. It is not a second opportunity to make submissions. There is no reasonable prospect of the Claimant showing that our key finding of fact requires to be revisited and this aspect of the application has no reasonable prospects of success. Point 5 – altering evidence[75]The Claimant asks me to consider the implications of the Respondent ‘altering evidence’. As set out above Mr Tucker readily accepted that he had amended a spreadsheet. The issue the spreadsheet goes to is primarily the claim of unlawful deduction from wages pre-dismissal where the Claimant succeeded in part. Mr Tucker was asked time and again about this document by the Claimant. He did not shirk from the suggestion that he had amended the document when trying to prepare for the hearing and in order to ascertain what the Claimant had been paid and when.[76]Whilst I accept that the Claimant has been concerned about further versions of documents being changed I must say that her assertion that this amounts to an attempt to deceive the tribunal had no foundation whatsoever. She has in my view blown this issue out of all proportion. We were satisfied that there was nothing sinister about Mr Tucker revising this document. He never once put it forward as the original version.[77]The Claimant has no reasonable prospects of persuading the tribunal that Mr Tuckers actions, which he freely accepted, have any reasonable prospect in persuading the Tribunal to change its mind about any conclusion it reached adverse to the Claimant. Points 6 and 7– Reconsideration of the Case Management Order[78]I do not understand why the Claimant is asking for a reconsideration of my case management order dated 3 August 2023. The paragraphs the Claimant refers to in point 6 do not include any decisions or orders. They include an explanation intended to assist the Claimant to elect between claiming a compensatory award or breach of contract for the period between her dismissal and 15 April 2021. The points referred to in Point 7 appear very general. The Claimant refers to ‘furlough misuse’ insofar as the Claimant is referring to other tutors being asked to work whilst in receipt of furlough monies that had no bearing on anything we needed to decide and so we made no findings in respect of that.[79]Within point 7 is a suggestion that the Claimant is dissatisfied with the Tribunal’s decision not to uplift her compensatory award and other awards by reason of some, unspecified, failure of the Respondent to comply with some provision of an ACAS code of practice.[80]We had found that Mr Tucker genuinely believed that the Claimant had resigned. We found that the Respondent had acknowledged the Claimant’s grievance and that they had invited her to a meeting to discuss that grievance. She was provided with an outcome in writing. We did not accept that the parts of the ACAS code of practice on Discipline and Grievances of work that deal with dismissals had any application to an erroneous acceptance of what was believed to be a resignation. We did accept that the parts of that code that referred to grievances would apply. The Claimant has not identified any breach of the code herself but the Tribunal examined the matter for itself. We did not detect any breach of the ACAS code in respect of the offer of a meeting and the outcome letter provided by the Respondent. Whilst no formal appeal is offered the outcome letter does offer a further meeting if one is requested.[81]We considered whether an uplift to any award of compensation was appropriate. The test is what might be just and equitable. We did not consider that it was just and equitable for there to be any uplift to any award. The only breach of the ACAS code we had detected was minor in nature in that a further meeting was not expressly offered as an appeal. We had regard to the fact that the Claimant’s grievances expanded in scope and were difficult for the Respondent to manage. We took account of the fact that this was a very small organisation. Whilst there had been unlawful conduct we did not consider that any failure to follow a provision of the ACAS code justified any uplift.[82]There is nothing in those points that suggest that the Claimant has any reasonable prospect of persuading the tribunal to vary or revoke its judgment. Point 8 – the Respondent’s letter of reconsideration[83]The Respondent has not suggested that it wants any part of our judgment varied or revoked. There is no live application for a reconsideration. It follows that I do not have to deal with the Claimant’s response set out within her own application for a reconsideration.[84]My overall conclusion is that the Claimant has essentially asked the Tribunal to revisit its decisions by referring to the evidence and suggesting that our findings of fact need to be revisited. That is not the proper purpose of a reconsideration application. We announced our findings of fact orally. Many are repeated here to give clarity to this decision where the application for full written reasons was withdrawn. The Claimant may not like our findings of fact but they were our conclusions reached on the balance of probabilities. The Claimant has no reasonable prospects of persuading the Tribunal to vary or revoke any part of the judgment dated 3 August 2023.