C Khatso v London Borough of Hackney: 3206040/2022

EMPLOYMENT TRIBUNALS

Case No 3206040/2022

Between

C KhatsoClaimant

London Borough of HackneyRespondent

Before

Employment Judge Mack

Members

Ms A Berry

Ms S Harwood

Date 11 June 2024

JUDGMENT

[1]The Claimant’s claim for breaches of the following sections of the Equality Act are well-founded:a. Section 13;

b. Section 15;

c. Section 21;

[2]The Claimant’s claim for unfair dismissal is well-founded.

[3]The Claimant’s claim for breach of The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 is dismissed because:a. It was in part made out of time; and

b. It was in part not well-founded. Case Number: 3206040/2022

REASONS

Conclusions

[1]These are the Tribunal’s reasons, given orally at the hearing on 28 February 2024. On 19 March 2024 the respondent requested written reasons.

[2]The claimant brought five claims against the respondent. These are:a. direct discrimination on the grounds of disability (section 13 of the Equality Act 2010 (“the Equality Act”);

b. discrimination arising from disability (section 15 of the Equality Act);

c. failure to make reasonable adjustments (section 20 of the Equality Act);

d. unfair dismissal (section 94 of the Employment Rights Act 1996 (“the Employment Rights Act”)); and

e. less favourable treatment under The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 ("the Fixed-term Regulations").

[3]In summary, the claims allege that the respondent treated the claimant unfairly because she had disabilities and because she was employed on a fixed-term contract. The respondent, the London Borough of Hackney – again in summary – rejects these claims: it says that it treated her fairly. It denies treating her unfairly because of her disabilities or because she was on a fixed-term contract.

Issues

[4]The issues for the Tribunal to determine were identified at page 8 of the Case Management Orders. The Case Management Orders were made by the Tribunal at the Preliminary Hearing on 30 May 2023. Elaboration of the matters identified in the issues was provided in subsequent correspondence (which was in the agreed bundle (to which see below)). Procedure

Findings of fact

[5]The claimant was represented at the hearing by Mr Clarke. The respondent was represented by Ms MacLaren. The Tribunal read the statements of, and heard evidence from, the following witnesses:a. The claimant;

b. Jane Havemann, the claimant’s line manager at all relevant times;

c. Jennifer Wynter, Assistant Director, Benefits and Homelessness Prevention Service;

d. Chris Trowell former interim director, Regeneration; and a. Emily Dathan, Senior HR & OD business partner in Regeneration. (During the relevant period Ms Dathan was named Emily Cooper).

[6]The Tribunal considered the documents from an agreed 705 page bundle and a 51 page supplementary bundle.

[7]There was also an agreed cast list and an agreed chronology, both of which the Tribunal referred to.

[8]The Tribunal received and considered written submissions from the claimant and the respondent. The Tribunal heard oral submissions from the representatives for the claimant and the respondent. Findings of fact

[9]The relevant facts are as follows. Where the Tribunal has had to resolve any conflict of evidence, the findings indicate at the material point how it has done so. Employment Status

[10]The claimant started employment with the respondent on 27 July 2020. Her employment ended – and the Effective Date of Termination – was 30 September 2022. Her employment ended at the expiry of her fixed term contract.

[11]The claimant’s first contract was for one year from 27 July 2020. In February 2021 the claimant applied for a new Project Manager position with the respondent, to which she was successfully recruited. This had a contract end date of March 2022. The respondent subsequently extended the contract end date to September 2022. Work of department

[12]While employed by the respondent the claimant worked across two teams: these were the Estate Regeneration Team and the Housing Supply Team. Her work on the Housing Supply Team project was overseen by Rachel Bagenal; her work on Estate Regeneration Team projects was overseen by Jane Havemann. Ms Havemann was also the claimant’s line manager. Although Ms Havemann changed roles during the time that the claimant worked for the respondent, Ms Havemann remained the claimant’s line manager until the claimant’s employment with the respondent ended. Ms Havemann told the Tribunal that it was preferable for her to retain continuity of management due to the claimant’s particular circumstances (primarily her ill health and time away from work, discussed in more detail below).

[13]The key projects that the claimant worked on during the period of her employment were:a. Tower Court;

b. Lincoln Court;

c. St Leonards Court; and

d. Marian Court. These projects sat within the Estate Regeneration Team, with the exception of Lincoln Court. Lincoln Court sat within the Housing Supply Team and was therefore overseen by Ms Bagenal.

[14]The claimant was moved to work on the Tower Court and St Leonard’s Court projects from April 2022.

The Law

[15]As part of her Project Manager role the claimant on occasion visited site.

[16]The claimant said in her statement (which was not contradicted by the respondent) that the “Respondent’s Regeneration team relies increasingly on digital communication to instruct processes and share information via the Respondent’s Intranet which hosts a myriad of links, digitised newsletters, and emails.” The Project Manager role description included - as a specific aspect of the role of Project Manager - to maintain and update records in relation to projects. Therefore, the Tribunal is satisfied that the respondent required the claimant to use its IT equipment and software throughout the period of the claimant’s employment with the respondent.

[17]The work of the Regeneration department was busy with often moving and tight internal and external deadlines. The work of the department was also undertaken in the context of uncertainty with respect to funding and increasing construction costs. Disability/medical conditions

[18]The claimant is dyslexic. The respondent agrees that the claimant’s dyslexia is a disability within the definition at section 6 of the Equality Act. The claimant was formally diagnosed as dyslexic in 1996. The claimant informed the respondent that she is dyslexic before she started work with the respondent. A ‘Fitness to Work’ report was prepared about the claimant by Andrea McGrellis and provided to the respondent; this report was dated 8 June 2020. This report stated that the claimant had “declared a condition likely to be covered by the Equality Act 2010. however [sic] no adjustments are currently required.” Ms Havemann received a copy of this report.

[19]From August 2021 the claimant began experiencing significant abdominal pain, bleeding and fatigue. In September 2021 the claimant was diagnosed with fibroids. The claimant had a biopsy in June 2022 and had an operation to remove the fibroids scheduled for August 2022. The operation did not, however, proceed before the claimant left employment with the respondent; this was for medical reasons. The respondent agrees that the claimant’s fibroids are a disability within the meaning of disability in the Equality Act.

[20]The Tribunal received evidence about other medical conditions that the claimant had during her employment with the respondent. These were a cycle accident in 2021; Covid, followed by symptoms of long Covid in 2022; asthma; and eczema. However, the claimant does not rely on these as disabilities and therefore, they do not form part of her claim. Sickness absence and

Procedure

[21]The claimant was absent on sickness leave on six occasions between August 2021 and June 2022.

[22]The reasons for the claimant’s sickness absences were recorded in the respondent’s HR system (which was referred to as ‘iTrent’ or ‘HR Systems’). iTrent enabled a line manager to record the reason for sickness absence. We accept the evidence of Ms Havemann that iTrent allowed a line manager to record only one reason for each sickness absence. The reasons for C’s absence were recorded as follows:a. June 2021 – gastrointestinal problems;

b. 27/9/21 – 8/10/21 – injury, fracture;

c. 8/11/21 – 10/11/21 – injury, fracture;

d. 15/2/22 – 18/2/22 – Covid-19 sickness;

e. 22/2/22 – 11/4/22 – genitourinary and gynaecological disorders;

f. 13/6/22 – 27/6/22 – genitourinary and gynaecological disorders.

[23]The record of the claimant’s absence between 22 February 2022 and 11 April 2022 was later amended at the claimant’s request to include reference to Covid. While the recorded reason for this absence was the topic of a significant amount of evidence during the hearing, the Tribunal does not consider that it is relevant to the issues it had to determine in this case. This is because – as discussed in the next paragraph - the respondent accepted during the hearing the correctness of the claimant’s calculation of her remaining sickness absence entitlement for the relevant period.

[24]On 25 July 2022 the respondent invited the claimant to a Stage 1 sickness absence meeting, in accordance with the respondent’s Management of Sickness Absence Policy. This meeting took place on 1 August 2022. The outcome of this meeting was recorded in a letter from the respondent dated 5 August 2022. The letter records the claimant as having informed the respondent that she would require leave for a myomectomy operation. It also states that the claimant had 34 days’ full pay and 55 days’ half pay remaining of her sickness absence entitlement. The Tribunal was taken to the claimant’s Statement of Written Particulars and its provisions on sick pay. The Tribunal agrees with the claimant’s assessment of these provisions, which were also agreed by Ms Havemann during examination; that is, that after 27 July 2022 the claimant was entitled to four months’ full pay and four months’ half pay during sickness absence. The Tribunal therefore finds that the statement of outstanding sickness leave in the letter of 5 August 2022 was incorrect. Adjustments

[25]On 19 October 2020 the claimant emailed Ingrid Theodore, a Recruitment Coordinator for the respondent, requesting “disability support for dyslexia”. In this email the claimant said that she required Dragon software for a staff computer. Ms Theodore responded to this email on 9 November 2020; on the same day the claimant replied to her to state that she was “still trying to find out who I can contact about receiving assistance for disability support for dyslexia…”. While accepting that the claimant did not raise the matter of support with Ms Havemann until spring 2021, the Tribunal therefore finds that the respondent knew of the substantial disadvantage caused by the claimant’s dyslexia by 9 November 2020.

[26]It is not in dispute that the respondent took steps to adjust its ways of working after November 2020 to provide support to the claimant with respect to her dyslexia. The key dates are the following:a. On 7 January 2021 the claimant emailed Harriet Ray, to ask if she could provide support in respect of her dyslexia;

b. On 9 March 2021 there were exchanges between Emily Cooper and the claimant. Ms Cooper flagged the respondent’s Occupational Health and Access to Work services to the claimant. Ms Cooper re-sent this email to the claimant on 27 April 2021;

c. Between 11 October 2021 and 14 October 2021 the claimant and Ms Cooper corresponded by email. On 11 October the claimant told Ms Cooper she was “being sent round in circles still trying to find out who I can contact about receiving assistance for disability support for dyslexia…”. Three days later, she told Ms Cooper that equipment was “refused” by HR in February. The same day Ms Cooper said she was “confused” by the refusal and told the claimant that Ms Havemann would have to refer the claimant to the Occupational Health Service;

d. On 22 November 2021 Health Management emailed Ms Havemann to tell her that Lexxic recommended two assessments for the claimant, as she was diagnosed with dyslexia in 2002;

e. On 26 April 2022 a summary of the Lexxic report was provided to the respondent (this had been delayed since January 2022 due to the need for Lexxic to obtain authorisation from the claimant); and

f. On 28 April 2022 the Access to Work Holistic Workplace Assessment was provided to the respondent.

[27]The Lexxic report had, as a high priority recommendation, the provision of “Read and Write Text-to-Speech Software”. It also recommended the provision of “Dragon Naturally Speaking Software” and “Mind Mapping Software”.

Conclusions

[28]The 28 April 2022 Occupational Health report recommended that, amongst others, the respondent make the following adjustments:a. The claimant to have regular breaks away from her workstation;

b. Weekly review meetings with the claimant; and

c. The claimant be provided with more time to undertake tasks.

[29]On 20 May 2022 the claimant and Ms Havemann discussed a change in the claimant’s working pattern from a four-day week to a five-day week. (The claimant was working a four-day week because she had previously requested this arrangement.) The claimant decided not to move to a five-day week and subsequently communicated this decision to the respondent.

[30]On 15 July 2022 Ms Havemann provided costs authorisation to the respondent’s IT department; this enabled the respondent to order the software recommended in the Lexxic report.

[31]Although the respondent and claimant took the above steps in 2021 and 2022, the Dragon software – which the claimant had originally requested the respondent to provide in late 2020 - was not in fact provided by the respondent to the claimant before the claimant left the respondent’s employment. In addition, the adjustments that were recommended in the Occupational Health Service assessments of November 2021 and February 2022 and the Access To Work assessment of April 2022 were not implemented before the claimant left the respondent’s employment.

[32]In particular, the Tribunal has found that:a. The respondent did not – during the time that the claimant worked for the respondent – implement any of the auxiliary aids that the claimant or the expert reports identified;

b. The respondent did allow the claimant to take extra breaks. The respondent’s evidence, provided by Ms Havemann, is that the claimant was able to work from home and work from abroad during her employment with the respondent. Ms Havemann put this arrangement in place to allow the claimant to flex her working hours. The Tribunal recognises that the work of the respondent’s Regeneration department was busy, that the period during which the claimant worked for this department could be hectic and that the claimant often had to work long hours. However, there was no evidence before the Tribunal from which it could conclude that the respondent did not allow the claimant to take extra breaks as required;

c. The respondent did not hold weekly review meetings. Ms Havemann’s own evidence is that she did not do so. We accept that there were regular structured and documented check-ins; we also accept that Ms Havemann had contact with the claimant outside of these check-ins. However, none of this contact was in the form of structured review meetings and they were not held on a consistent weekly basis. The recommended, structured weekly review meetings would have provided the claimant and the respondent with a delineated opportunity to address work, deadlines and any other required adjustments; and

d. The respondent did not permit the claimant additional time to undertake tasks. The evidence of Ms Havemann is that the claimant was removed from projects she worked on in order to ensure projects delivered to time. The evidence was also that there were pressing internal and external deadlines and many moving pieces. In contrast to the instances identified in evidence of the claimant being removed from projects, the respondent failed to point to any specific deadlines where time was extended in response to the claimant’s disability. Learning and development

[33]When the claimant commenced employment with the respondent she was undertaking her RIBA Architectural Chartership Part III qualification. In February 2021 the claimant raised with her manager the option of the respondent providing funding to support this study. The Tribunal finds that Ms Havemann expressed interest in the course and responded positively by expressing that it may be of interest to herself, as well as the claimant.

[34]The Tribunal finds that the claimant added details of this training to her Personal Learning Account. However, the Tribunal also accepts Ms Havemann’s evidence that there was a process for applying for training support and that this was different from the Personal Learning Account process. The Tribunal also finds that the claimant would have been aware of this process because she was a line manager for the respondent. Therefore, the Tribunal finds that the claimant did not apply for funding for her Part III qualification via the mandated online system.

[35]The respondent offered internal training, namely the Estate Regeneration Development Programme, which was also referred to as the Future London Leadership. The claimant accepted in evidence that she undertook this internal training. End of contract

[36]The claimant’s contract ended in September 2022 and was not extended.

[37]In June 2022 the respondent produced a report entitled “Justification for ending of Fixed Term Contract". Mr Trowell told the Tribunal in his oral evidence that this was the record of a meeting held between him, Ms Bagenal and Ms Havemann in June 2022; at this meeting they decided not to renew the claimant’s contract. Ms Havemann said in her witness statement that, in late 2021/early 2022, there was less work to do across the Regeneration department. She told the Tribunal that the resourcing requirements for the department were discussed between herself, Mr Trowell and Ms Bagenal. She said that the June 2022 report was written by herself and Ms Bagenal, reflecting the conclusions they had reached and with Mr Trowell as the intended audience. She could not remember at what point in June they had produced this document. The Tribunal does not accept the evidence of Mr Trowell or Ms Havemann that this document was the record of a decision that had been made. Instead, it finds that this document was in fact a proposal for ending the claimant’s employment with the respondent. The Tribunal has reached this decision because of the inconsistencies in evidence given by the respondents’ witnesses on this point. The Tribunal’s conclusion on this point is also consistent with the language that was used in the document (for example, the use of the term “proposal”).

[38]We find that the decision to end the contract was taken by Ms Havemann. This is consistent with her having the primary role in drafting this document (being the claimant’s line manager) and attending the meetings at which there was discussion about ending the claimant’s contract.

[39]At the return to work meeting on 19 July 2022 Ms Havemann informed the claimant that her contract would not be extended beyond September 2022. This was confirmed by email from Ms Havemann to the claimant on the same date. A follow-up conversation took place on 25 July 2022. Ms Havemann sent an email to the claimant on the same day, confirming that the claimant’s contract would terminate on 30 September 2022. Grievance and Appeal

[40]The claimant submitted a grievance in writing on 8 August 2022; this included complaints about disability discrimination and non-payment of her RIBA Part III fees.

[41]On 13 August 2022 the claimant appealed against the decision not to renew her contract. Ultimately, this appeal – and the grievance that the claimant had also raised – were investigated by Ms Wynter. When the claimant first raised her grievance and appeal the respondent had decided that they would be investigated together by Chris Trowell. The claimant objected to this, due to the claimant’s working relationship with Mr Trowell. As a result the respondent replaced Mr Trowell as investigator with Ms Wynter.

[42]On 7 October 2022 Ms Wynter held separate investigative meetings with Ms Dathan, Mr Trowell and Ms Havemann. In the meeting with Ms Havemann, Ms Havemann told Ms Wynter that the claimant’s sickness absence was not a factor in reviewing the claimant’s contract extension.

[43]Ms Wynter arranged a meeting with the claimant for 27 October 2022 to discuss with her her grievance and appeal. This meeting was adjourned at the claimant’s request. Instead, the claimant provided written answers to questions that Ms Wynter had sent to the claimant.

[44]The postponed investigative meeting between Ms Wynter and the claimant was held on 18 November 2022 and continued on 23 November 2022.

[45]Ms Wynter held an investigative meeting with a colleague of the claimant, Jake Armfield on 28 November 2022. Mr Armfield worked for the respondent as a design officer.

[46]On 9 January 2022 Ms Wynter sent the claimant the outcome of the grievance and appeal process. The complaint and appeal were rejected in full. Relevant policies

[47]During the relevant period the respondent had in force a number of policies that were relevant to these claims. These included the Managing Fixed-Term Employees Policy (also referred to as a guide) and Management of Sickness Absence Policy. Submissions

[48]The claimant provided oral and written submissions. In summary, these were:a. The respondent failed to make reasonable adjustments for the claimant. The respondent was put on adequate notice of the claimant’s dyslexia and the substantial disadvantages caused by her dyslexia by May 2021 at the latest. It is no defence for the respondent to rely on its own internal processes to justify the delays in implementing reasonable adjustments;

b. The claimant’s dismissal was unfair. The respondent’s stated reason for the claimant’s dismissal was redundancy. However, the respondent failed to construct a redundancy pool; establish criteria for selection; consider adequately alternatives to dismissal; and cure any breaches in its redundance process by way of a meaningful appeal process.

c. The respondent’s decision to dismiss the claimant bears all the hallmarks of predetermination and the respondent’s witnesses effectively accepted this in cross-examination;

d. The claimant has adduced facts from which it could be concluded, in the absence of any other explanation, that the reason for her dismissal was discrimination;

e. The respondent is unable to meet its burden of establishing that the reason for dismissal was not discrimination;

f. The respondent is unable to meet its justificatory burden as health-related reasons did not feature in its documentary evidence, and given the paucity of evidence on proportionality in this regard; and

g. Given the issues identified in the case, it can safely be inferred that the claimant was treated differently on the grounds of her temporary status.

[49]The respondent also provided oral and written submissions. In summary, these were:a. Adjustments within Ms Havemann’s immediate control were put in place as soon as it became apparent that they would be helpful. The provision of auxiliary aids, software and training took longer because it required proper investigation;

b. It was reasonable for the respondent to seek expert advice in respect of auxiliary aids, software and training. The process of investigation took longer than it should and there were multiple reasons for this. However, the delay was not unreasonable in the circumstances;

c. The refusal to move from a four-day week to a five-day week was not a matter arising as a result of the claimant’s disability;

d. None of the matters arising had any bearing on the respondent’s decision not to renew the claimant’s contract;

e. None of the comparators that the claimant raised with respect to direct discrimination are appropriate comparators. In any event, the difference in the nature of work done is the only reason for the respondent’s decision to extend the comparators’ secondment;

f. There is no basis on which the Tribunal could fairly conclude that a person such as the claimant would have had their contract extended;

g. The claimant was fairly dismissed for redundancy: this is a clear case of a diminution of work resulting in a need for fewer employees and the respondent followed a proper procedure;

h. The allegations relating to fixed-term employment are denied and, to the extent that the Tribunal finds them to be made out, there is nothing to link any of them to the claimant’s fixed term contract; and

i. The claims relating to the claimant’s Part III and internal training may have been brought out of time by the claimant. Relevant Law Disability

[50]Section 6 of the Equality Act states: “A person (P) has a disability if—(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”

[51]It is accepted that that the claimant was a disabled person as she is dyslexic. It is also accepted that the claimant was a disabled person because of fibroids. Reasonable adjustments

[52]Section 20 of the Equality Act states (where relevant): “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. … (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid…”

[53]Section 21 of the Equality Act states (where relevant): “(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person…”

[54]Section 39(5) of the Equality Act provides that a duty to make reasonable adjustments applies to an employer.

[55]Section 212 of the Equality Act defines “substantial” as meaning “more than minor or trivial”.

[56]In a case, such as this, where it is accepted that the claimant is a disabled person, the following are the key questions that the Tribunal must consider. These have been clearly identified in the issues for the Tribunal to answer (see paragraph 4).a. What is the provision, criterion or practice (“PCP”), physical feature of premises, or missing auxiliary aid or service relied upon?

b. How does that PCP/physical feature/missing auxiliary aid put the claimant at a substantial disadvantage in comparison with persons who are not disabled?

c. Can the respondent show that it did not know and could not reasonably have been expected to have known that the claimant was a disabled person and likely to be at that disadvantage?

d. Has the respondent failed in its duty to take such steps as it would have been reasonable to have taken to have avoided that disadvantage or to have provided the auxiliary aid or service?

[57]The Tribunal should not unduly limit the interpretation of a PCP – see the case of Lamb v The Business Academy Bexley EAT 0226/15. In addition, the Tribunal will not normally need to distinguish between provision, criterion and practice – see the case of Harrod v Chief Constable of West Midlands Police

[2017] ICR 869

. However, in Ishola v Transport for London

[2020] ICR 1204

the Court of Appeal said that all three words (“provision”, “criterion” and “practice”): “..carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.”

[58]The Equality Act does not identify the factors that it is reasonable to take into account. However, the Equality and Human Rights Commission’s (“EHRC”) Statutory Code of Practice on Employment cites “some of the factors which might be taken into account when deciding what is a reasonable step for an employer to have to take”. The Tribunal considered this Code of Practice to be relevant and has taken it into account in this case, in accordance with section 15(4) of the Equality Act 2006.

[59]In a case such as this, where the respondent accepts knowledge of the claimant’s disability, the claimant must prove facts from which it could reasonably be inferred, absent an explanation, that the duty has been breached (Project Management Institute v Latif,

[2007] IRLR 579

, EAT). This means the claimant must prove facts relating to the application of a PCP, the substantial disadvantage, and the adjustment which might have avoided that disadvantage. The burden will then shift to the respondent: it might discharge that burden in a variety of ways, such as by proving there was no knowledge of the substantial disadvantage or by showing that the proposed adjustment was not in fact reasonable. Direct discrimination on the grounds of disability

[60]Section 13 of the Equality Act states: “(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 treats others.”

[61]Disability is a protected characteristic (section 6 of the Equality Act).

[62]Section 39 of the Act states: “… (2) An employer (A) must not discriminate against an employee of A's (B)- … (c) by dismissing B…”

[63]What is less favourable treatment is determined objectively and is a matter of fact for the tribunal.

[64]In bringing a claim a claimant may seek to show that they were treated less favourably than their colleague was actually treated. In this type of claim, the colleague is often referred to as being an 'actual comparator'. Section 23 of the Equality Act states that there must be no material difference between the claimant's circumstances and the actual comparator's circumstances. This means that “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class” (per Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL).

[65]It is for the claimant to prove that they suffered the treatment complained of. In cases where the reason for the less favourable treatment is not immediately apparent, the Tribunal will have to consider the mental processes, conscious or subconscious, of the alleged discriminator to discover what facts operated on his or her mind (see R (on the application of E) v Governing Body of JFS and the Admissions Appeal Panel of JFS and ors

2010 IRLR 136

, SC). In determining this question, this Tribunal has reminded itself of the following:a. Motivation is not the same as motive and a well-meaning employer may still directly discriminate against a person (see, for example, Amnesty International v Ahmed

2009 ICR 1450

, EAT);

b. Discrimination may not be self-conscious (see Nagarajan v London Regional Transport

[1999] IRLR 572

);

c. The claimant's disability need not be the only or main reason for the less favourable treatment as long as disability is a significant influence on the decision (see Gould v St John's Downshire Hill

2021 ICR 1

, EAT); see also paragraph 3.11 of the EHRC Employment Code

[66]Section 136(2) of the Equality Act states: "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."

[67]These provisions apply to all forms of prohibited conduct under the Act, including direct disability discrimination. They deal with the burden of proof; guidance on their application was provided by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

. There are two stages to the burden of proof:a. Stage 1 deals with the primary facts of the case. At this stage the Tribunal has to find that there are primary facts from which it could decide - in the absence of any other explanation - that discrimination took place. This means (per Madarassy v Nomura International Plc

[2007] EWCA Civ 33

) that the Stage 1 test will be met if 'a reasonable tribunal could properly conclude' on the balance of probabilities that there was discrimination. The same case also makes clear that it is not sufficient for the employee merely to prove a difference in protected characteristic and a difference in treatment. Also, as per the case of Glasgow City Council v Zafar

(1998) IRLR 36

, HL, unfair or unreasonable treatment on its own is not sufficient to satisfy Stage 1;

b. If the claimant satisfies the burden of proof at Stage 1, the burden shifts to the respondent in Stage 2 to prove - on the balance of probabilities - that the treatment was not for the proscribed reason. At this stage (per Igen): i. the respondent must prove that the less favourable treatment was "in no sense whatsoever" because of the protected characteristic; and ii. the ET will expect "cogent evidence" for the employer's burden to be discharged. Unfair dismissal

[68]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. A person who complains that they have been unfairly dismissed may bring a complaint to the Tribunal under section 111 of the Act.

[69]The employee must show that he or she was dismissed by the respondent under section 95 of the Act. In this case the respondent admits that it dismissed the claimant on 30 September 2022, at the expiry of her fixed-term contract. The respondent – correctly - does not dispute that the expiry of a fixed-term contract constitutes a dismissal.

[70]Section 98 of the Act deals with the fairness of dismissals. There are two stages to deciding whether a dismissal was fair. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider whether the respondent acted fairly or unfairly in dismissing for that reason. There is no burden of proof on either party at the second stage.

[71]Section 98 of the Employment Rights Act 1996 states:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, … (c) is that the employee was redundant, …

(3) In subsection (2)(a)— (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality…”

[72]The Tribunal notes at this stage that section 139 of the Equality Act defines redundancy as including where the fact that the requirements of that business for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish.

[73]Section 98(4) deals with fairness generally. It states: “(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case. Less favourable treatment under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations

[74]Regulation 3 of the Fixed-term Regulations provides:(1) A fixed-term employee has the right not to be treated by his employer less favourably than the employer treats a comparable permanent employee… (b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2) Subject to paragraphs (3) and (4), the right conferred by paragraph (1) includes in particular the right of the fixed-term employee in question not to be treated less favourably than the employer treats a comparable permanent employee in relation to— … (b) the opportunity to receive training…

(3) The right conferred by paragraph (1) applies only if— (a)the treatment is on the ground that the employee is a fixed-term employee, and (b)the treatment is not justified on objective grounds.

[75]The non-renewal of a fixed-term contract does not on its own amount to less favourable treatment: see Webley v Department for Work and Pensions

2005 ICR 577

, CA.

[76]Regulation 2 of the Fixed-term Regulations states: (1) For the purposes of these Regulations, an employee is a comparable permanent employee in relation to a fixed-term employee if, at the time when the treatment that is alleged to be less favourable to the fixed-term employee takes place, (a) both employees are— (i) employed by the same employer, and (ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills; and (b) the permanent employee works or is based at the same establishment as the fixed-term employee or, where there is no comparable permanent employee working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.

[77]Regulation 7 of the Fixed-term Regulations states: “(1) An employee may present a complaint to an employment tribunal that his employer has infringed a right conferred on him by regulation 3, or (subject to regulation 6(5)), regulation 6(2). (2) Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months beginning— (a) in the case of an alleged infringement of a right conferred by regulation 3(1) or 6(2), with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them; … (6) Where an employee presents a complaint under this regulation in relation to a right conferred on him by regulation 3 or 6(2) it is for the employer to identify the ground for the less favourable treatment or detriment.” Conclusions Reasonable Adjustments

Conclusions

[78]It is accepted that the claimant was disabled because of dyslexia and fibroids.

[79]The Tribunal finds that the respondent required the claimant to use its IT equipment and software from throughout the period of her employment with the respondent. The Tribunal also concludes that the respondent required its employees (including the claimant) to carry out work assigned to them. The application of these PCPs to the claimant was not disputed by the respondent during the hearing.

[80]The Tribunal concludes that the respondent knew that the application of these PCPs to the claimant caused her substantial disadvantage; in particular:a. Caused by her dyslexia from November 2020, when the claimant returned to Ms Theodore to identify the need for support with her dyslexia;

b. Caused by her fibroids from April 2022: by this point the respondent was in possession of the Occupational Health Service report that addressed this condition and identified that the claimant would require an operation to treat it.

[81]In respect of the adjustments identified by the claimant in her claim, the Tribunal has reached the following conclusions:a. With respect to Dragon software, the Tribunal considered that it would have been reasonable for the respondent to rely upon the claimant’s assessment of the utility of the software. This is because the claimant had previous experience of using this type of software and the support it provided to her in completing her work. The Tribunal therefore concludes that the respondent should have provided it upon identification by the claimant and, in any event, by no later than February 2021;

b. The Tribunal decided that it was appropriate for the respondent to obtain an expert report – and refreshed information – on the adjustments required (other than the Dragon software). However, the Tribunal concludes that the time the respondent took to obtain this report was unreasonable. The respondent has referred to the claimant’s absences from employment and has relied upon these as the reason for the time it took to obtain the report. However, the claimant was not absent for extended periods between November 2020 – when she first requested support for her dyslexia - and May 2021. As Ms Havemann accepted in her evidence: “It all took longer than it ought to have.” The Tribunal has decided that these adjustments should have been in place by April 2021 at the latest;

c. The Tribunal concludes that weekly review meetings should have been implemented immediately upon their identification in the Occupational Health Service report in April 2022. In her oral evidence to the Tribunal Ms Havemann identified this requirement and said that the meetings did not take place due to the pressure of work. The Tribunal has acknowledged that the department in which Ms Havemann and the claimant worked was busy; however, the Tribunal also recognises that Ms Havemann was the claimant’s line manager and that the provision of reasonable adjustments was an integral part of the line manager role. Therefore, weekly review meetings should have been taking place by April 2022;

d. The Tribunal concludes that it would not be a reasonable adjustment to give the claimant additional time to complete tasks. The Tribunal has already found that the work of the department in which the claimant worked was busy with tight internal and external deadlines. The Tribunal also found that there was uncertainty over funding for the department’s work. Therefore, the Tribunal considered that the provision of additional time for work would be significantly disruptive for the respondent and therefore would not be a reasonable step to take. Unfair dismissal

[82]The respondent says that the claimant’s dismissal was for reason of redundancy. The claimant says it was because she was disabled.

[83]The Tribunal has decided that the reason for the claimant’s dismissal was because the respondent concluded that the claimant was no longer capable of performing the role for which she was recruited, namely Project Manager. The Tribunal has reached this conclusion from the evidence of Ms Havemann, the claimant’s line manager who – we have already found – was the decision maker in respect of the end of the claimant’s employment. Ms Havemann told the Tribunal that termination of the claimant’s employment was “the right way to move forward” because it would be “difficult for [the claimant] to go onto other projects with ill health and time off she would need to take”.

[84]The Tribunal considered carefully whether the respondent may have dismissed the claimant for redundancy. It concluded that this could not be the case, as the behaviour of the respondent was not consistent with this being the case. Specifically, the respondent had not, at the time of the hearing, removed the claimant’s former role from its complement of posts; and did not follow its own redundancy procedure for fixed-term staff. As the Tribunal did not decide that the claimant was dismissed for reason of redundancy, the Tribunal did not consider further the purported redundancy process.

[85]As capability is a potentially fair reason for dismissal the Tribunal considered whether the dismissal was procedurally fair. It concluded that it was not procedurally fair because:a. The respondent did not prepare a management report that addressed the claimant’s capability;

b. The respondent’s real reason for dismissal (i.e. capability) was not shared with the claimant;

c. As the real reason for dismissal was not shared with the claimant, the respondent failed to provide the claimant with a reasonable opportunity to respond to the respondent’s decision to dismiss her; and

d. The respondent’s decision was taken prior to: i. The respondent’s implementation of most of the reasonable adjustments, which were recommended by external parties and accepted by respondent, and which would be likely to have had a positive impact on the claimant’s capability; and ii. The sickness management meeting, which would have provided the respondent with an opportunity to explore with the claimant her capability to undertake the Project Manager role on an ongoing basis.

[86]The Tribunal recognises that the claimant was afforded the opportunity to appeal against her decision and that Ms Wynter undertook an investigation into the matter. However, this appeal was unable to – and did not - remedy the procedural deficiencies that had already occurred. This is because neither Ms Wynter nor the claimant was aware of the real reason for the claimant’s dismissal. As a result, the appeal procedure failed to investigate and address the deficiencies in the initial procedure.

[87]As the procedure for dismissing the claimant was not fair, the Tribunal concludes that the claimant was unfairly dismissed. Direct Discrimination

[88]It was not an issue in dispute between the parties that the respondent dismissed the claimant when it failed to renew her fixed-term contract.

[89]The Tribunal concludes that there are primary facts from which it could decide - in the absence of any other explanation - that disability discrimination took place.

[90]We were directed to a significant number of comparators in this case. The comparators could be categorised into two broad classes. The first class of comparator was senior management; the second type was project managers or project officers who were on secondment – “acting up” from other departments or other roles.

[91]The Tribunal concluded that the senior managers were not appropriate comparators. The Tribunal had heard evidence from the department’s senior managers about the work they carried out, which included decisions as to work allocation and resourcing. These were not part of the Project Manager role. Therefore, the Tribunal concluded that there were material differences between the claimant and these comparators, in that they were not conducting the same type of role.

[92]By contrast, the Tribunal concluded that project managers (but not the project officers) on secondment were appropriate comparators. This is because both the claimant and the other project managers were performing the project manager role and because the Tribunal did not find that there were any material differences between the claimant and the comparators. The respondent argued that there was a material difference, in that the claimant and the other project managers were carrying out materially different roles due to the nature of their projects. Specifically, the respondent submitted that the other project managers were working on projects which were at critical phases and that they had specialist knowledge of their projects. The Tribunal did not accept that this was a material difference: the document to which the Tribunal was referred and in which the comparators were identified did not identify either of these characteristics and the Tribunal heard no other evidence to support this submission. In addition, the Tribunal considered that the same characterisation could properly have been made of the claimant’s skills: it was not disputed by the respondent that the claimant had detailed knowledge of her own projects.

[93]The respondent also submitted that there was a material difference in that the respondent would have required the other project managers to return to their substantive role if they were no longer on secondment or acting up, which would in turn have required the dismissal of the permanent member of staff who was backfilling the secondee’s role. The Tribunal did not accept this submission: first, both the claimant and the other project managers were acting temporarily in the role of project manager; second, both the dismissal of the claimant and the cessation of the other project manager’s secondment would ultimately lead to the dismissal of a person working for the respondent.

[94]The Tribunal decided that the claimant and the project manager comparators were acting in the same type of role, doing the same type of work and in the same department. Three project managers – other than the claimant - had their secondments or acting-up contracts extended. The Tribunal concluded that these were primary facts from which it could decide - in the absence of any other explanation - that discrimination took place.

[95]The burden then shifted to the respondent to prove that the less favourable treatment was in no sense whatsoever because of the protected characteristic. This is a burden that the Tribunal considered that the respondent could not meet because of the evidence of Ms Havemann that was referred to above. The Tribunal decided that it was abundantly clear from that evidence that the claimant’s disability was operative in Ms Havemenann’s mind at the time the decision was made not to extend her contract. Discrimination arising from disability

[96]It is not in dispute that the claimant was dismissed and that this caused the claimant detriment.

[97]The claimant states that her dismissal was because of four matters, each of which arises from her disability. These are:a. her need for adaptive software and reasonable adjustments for her dyslexia;

b. her period of absence from work from February to April 2022;

c. her period of post surgery absence planned from mid-August 2022;

d. her refusal to move from a 4-day week to a 5-day week

[98]The Tribunal has concluded that complaint (d) is a matter arising from the claimant’s disability: while the respondent is correct in submitting that the claimant’s four-day working arrangement was sought early in her employment, the claimant’s refusal to move to a five-day week occurred later in the claimant’s employment and she refused this change to her working arrangements specifically because of the negative impact that the claimant considered it would have upon her health. The refusal is therefore a matter arising from her disability.

[99]The Tribunal concluded that complaints (a) and (d) did not have any bearing on the decision to dismiss the claimant. While recognising that the necessary adjustments to address the claimant’s disabilities had not been taken within a reasonable time by the respondent, the Tribunal found that the respondent did take steps to implement the adaptive software and other reasonable adjustments. The Tribunal considered that taking these steps – including in particular the submission of the costs authorisation by Ms Havemann in July 2022 – would be inconsistent with a decision to dismiss the claimant because of her need for reasonable adjustments.

[100]The Tribunal also found that the steps the respondent had taken during the relevant period included flexibility around the claimant’s working arrangements. Therefore, the Tribunal concluded that this behaviour would be inconsistent with a decision by Ms Havemann to dismiss the claimant because of her preference to remain on a four-day working week (a working pattern that Ms Havemann had previously authorised).

[101]Ms Havemann told the Tribunal that she had decided to dismiss the claimant because it would be “difficult for [the claimant] to go onto other projects with ill health and time off she would need to take”. Therefore, the Tribunal concluded that her dismissal was because of her period of absence from work from February to April 2022 and her period of post-surgery absence planned from mid-August 2022 (i.e. matters (b) and (c) above).

[102]No evidence was put before the Tribunal to the effect that dismissal of the claimant for these matters was a proportionate means of achieving a legitimate aim. Therefore, the Tribunal concluded that dismissal for these matters was not justified. Fixed-term discrimination

[103]The claimant raised the question of the respondent paying fees for her Part 3 Qualification in February 2021 but did not bring this claim until December 2022. The Tribunal therefore decided that this claim was brought outside of the time limit in the Fixed-term Regulations.

[104]The Tribunal considered whether it was just and equitable to consider this complaint out of time. However, it heard no reason why the claimant could not have brought the complaint in 2021, and therefore concluded that it would not be just and equitable to hear the claim now, over eighteen months later.

[105]The Tribunal found that the claimant had accessed internal training, namely the Future London Leadership/Estate Regeneration Development Programme. The Tribunal therefore decided that the respondent had not informed the claimant that she could not access internal training.

[106]The Tribunal found that the respondent failed to provide adaptive software and equipment and told the claimant that she would not be paid her full pay for her postsurgery sickness absence. However, the Tribunal concluded that it had heard no evidence to suggest that the respondent had done (or failed to do) these things because of the claimant’s status as a fixed-term employee. In particular, in the case of the complaint relating to sickness pay, the Tribunal considered that this was a simple – albeit unfortunate – error in calculation of sickness periods.

[107]The Tribunal duly concluded that the claimant was not treated unfavourably because she was a fixed-term employee.

[1]At a hearing held at the East London Employment Tribunal (by cloud video platform) on 21-23 and 27-29 February 2024 the Tribunal found that the respondent discriminated against the claimant because of her disability (the “Liability Judgment”). The Tribunal also found that the respondent unfairly dismissed the claimant.

[2]A remedy hearing was held at East London Employment Tribunal (by cloud video platform) on 22 April 2024. The Tribunal reserved its decision on remedy.

[3]For the remedy hearing the Tribunal was provided with a remedy hearing bundle. The Tribunal also received skeleton arguments on behalf of the claimant and respondent and a counter-schedule of loss from the respondent.

[4]The Tribunal heard evidence from the claimant and submissions from both parties.

Findings of fact

[5]The Tribunal adopts the findings of fact made in its Liability Judgment and makes the following additional findings of fact.

[6]The claimant has not undertaken any work with the respondent since the date of dismissal. She has not taken up work as a Project Manager – or any similar role - with any other employer. Since the date of her dismissal the claimant has undertaken part-time work as a university lecturer.

[7]During the Remedy Hearing the respondent put to the claimant fourteen vacancies that, it submitted, the claimant could have applied for. On that basis, the respondent submitted that the claimant could have found an equivalent role within 13 weeks. The Tribunal does not accept that the roles identified by the respondent were suitable for the claimant: the Tribunal prefers the claimant’s evidence that her role was specialised, the roles put to her were not in the same sectors and therefore she was not a suitable candidate for these roles.

[8]The claimant is currently undertaking a career change. Since her dismissal she has relocated from the UK and is now living in Zimbabwe. Her father lives in Zimbabwe. She has purchased a pottery studio and has started teaching pottery and exhibiting her work.

[9]The claimant submitted that the treatment she suffered at the hands of the respondent was such that she could no longer work as a project manager. The Tribunal does not accept this submission. The Tribunal accepts the claimant’s evidence that the impact of the respondent’s treatment was substantial and has caused significant stress and anxiety. However, there was no evidence before the Tribunal that would enable it to conclude that the claimant could not – at any point in the future, for any employer and in any working pattern – return to the type of work she was undertaking for the respondent.

[10]The claimant told the Tribunal, during the liability and remedy hearings, that – in addition to the treatment by the respondent - she has suffered health, housing and family difficulties in the UK and in Zimbabwe. The Tribunal finds that she decided to relocate to Zimbabwe because of these housing and family difficulties. Therefore, it finds that the treatment by the respondent was not the cause of these changes.

[11]Taking all of the above into account, the Tribunal finds it reasonable that the claimant would not immediately following her dismissal have started her search for new employment. However, it has decided that the claimant did not look for another, similar role because of her wish for a career change. The Tribunal does not find that the claimant was unable to return to this type of work and it was not provided with any medical evidence to that effect. Therefore, the tribunal has concluded that the claimant could have started her search for a new role before the end of 2022. Taking into account the time required for the submission of applications, interviews and onboarding checks, it finds that she could have started a new, similar role for another employer within 26 weeks of her dismissal. Health

[12]During the relevant period the claimant was undergoing IVF treatment. This started prior to her employment with the respondent and continued after her dismissal. During the relevant period the claimant decided to postpone a cycle of treatment. The Tribunal does not find that this postponement was caused by the respondent’s treatment. There was no medical evidence before the Tribunal that identified the impact of the respondent’s treatment as the reason for the postponement. On the other hand, the claimant had put evidence before the Tribunal of her other medical difficulties during this period, including long Covid and fibroids (for which she required an operation). The Tribunal therefore found it to be more likely than not that these other medical difficulties were the reason for the postponement of the IVF cycle. Submissions

[13]The claimant and respondent agreed the following matters, which were accepted by the Tribunal:a. The Tribunal should make a basic award of £1,713;

b. The claimant’s net weekly earnings (for the determination of loss of earnings and future loss of earnings) was £755.54;

c. The Tribunal should deduct from its award for past loss of earnings any pay received from alternative employment during this period;

d. The relevant monthly amount in calculating the award for pension loss is £1,530.15;

e. The Tribunal should award an amount of £500 for loss of statutory rights;

[14]The claimant and respondent disagreed as to the following, which were part of the claimant’s claim:a. The number of weeks for which the Tribunal should award loss of earnings: the claimant claimed for 81.4 weeks; the respondent submitted the award should be for 13 weeks;

b. Whether an award should be made for future loss of earnings: the claimant claimed for 52 weeks; the respondent submitted the Tribunal should make no award;

c. The number of months for which the Tribunal should award pension loss;

d. The claimant’s claim for the following losses, which the respondent submitted the Tribunal should not award at all: i. Expenses incurred in delaying IVF treatment; ii. Costs for accommodation, food, transport and expenses for the claimant’s attendance in the UK between February and May 2024; iii. Costs related to setting up, packing and transporting and disconnecting and resupplying electricity to the claimant’s pottery studio;

e. The award for injury to feelings: the claimant submitted that this case falls into the upper Vento band; the respondent submits it falls in the middle Vento band; and

f. Whether the Tribunal should award any uplift for breach of a relevant ACAS Code. The Law Unfair dismissal

[15]The Employment Rights Act 1996 states (as relevant to this matter): “112(1) This section applies where, on a complaint under section 111, an employment tribunal finds that the grounds of the complaint are well-founded. … (4) If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 126) to be paid by the employer to the employee. … 118. (1) Where a tribunal makes an award of compensation for unfair dismissal under section 112(4) or 117(3)(a) the award shall consist of— (a) a basic award (calculated in accordance with sections 119 to 122 and 126, and (b) a compensatory award (calculated in accordance with sections 123, 124, 124A and 1262). … 126. (1) This section applies where compensation falls to be awarded in respect of any act both under— (a)the provisions of this Act relating to unfair dismissal, and (b)the Equality Act 2010.

(2) An employment tribunal shall not award compensation under either of those Acts in respect of any loss or other matter which is or has been taken into account under the other by the tribunal (or another employment tribunal) in awarding compensation on the same or another complaint in respect of that act.”

[16]The effect of section 126 of the Act is that a claimant cannot obtain “double recovery” in respect of an award for compensation. In the case of D’Souza v London Borough of Lambeth

1997 IRLR 677

EAT, the Employment Appeal Tribunal stated that employment tribunals should make a compensatory award under the discrimination legislation, rather than the unfair dismissal legislation. Discrimination

[17]Section 124 of the Equality Act 2010 applies if a Tribunal finds that an employer has discriminated against an employee. This section states: “… (2) The tribunal may –(a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate;

(b) order the respondent to pay compensation to the claimant;

[18]Compensation for discrimination may include compensation for injury to feelings. Such compensation should be compensatory, rather than punitive. The Court of Appeal gave guidance to Tribunals on the approach to adopt in determining the amount of an award for injury to feelings in the case of Vento v Chief Constable of Yorkshire Police (No 2)

[2003] IRLR 102

. There are three bands of awards for injury to feelings:a. A lower band, which applies to less serious cases, such as an isolated act of discrimination. At the time of Vento this band ranged from £500 to £5,000;

b. A middle band for more serious cases of discrimination; at the time this band ranged from £5,000 to £15,000; and

c. An upper band, which applies to the most serious cases of discrimination, such as a prolonged campaign of discrimination. At the time this band ranged from £15,000 to £25,000.

[19]The awards in each band have been uprated since the case of Vento was first decided: see Da’Bell v NHSPCC

[2010] IRLR 19

and De Souza v Vinci Construction (UK) Ltd

[2018] ICR 433

[20]The Presidents of the Employment Tribunals in England & Wales and Scotland have issued guidance on changes to the Vento bands. The guidance applicable to this claim was issued on 28 March 2022; it provides, in respect of claims presented on or after 6 April 2022, that the Vento bands are:a. a lower band of £990 to £9,900;

b. a middle band of £9,900 to £29,600; and

c. an upper band of £29,600 to £49,300, with the most exceptional cases capable of exceeding £49,300. Interest

[21]The rules governing interest for awards of compensation for discrimination are found in the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (the “Interest Regulations”). Regulation 2(1) of the Interest Regulations states: “Where, at any time after the commencement of these Regulations, an employment tribunal makes an award under the relevant legislation –(a) It may, subject to the following provisions of these Regulations, include interest on the sums awarded; and

(b) It shall consider whether to do so, without the need for any application by a party in the proceedings.”

[22]Interest is calculated in accordance with regulation 3 of the Interest Regulations: “(1) Interest shall be calculated as simple interest which accrues from day to day. (2) Subject to paragraph 3, the rate of interest to be applied shall be, in England and Wales, the rate fixed, for the time being, by section 17 of the Judgments Act 1838… (3) Where the rate of interest in paragraph (2) has varied during a period for which interest is to be calculated, the tribunal may, if it so desires in the interests of simplicity, apply such median or average of those rates as seems to it appropriate.”

[23]The rate of interest - applicable throughout the relevant period – is 8%.

[24]Regulation 4 of the Interest Regulations provides: “(1) In this regulation and regulations 5 and 6, “day of calculation” means the day on which the amount of interest is calculated by the tribunal. (2) In regulation 6 “mid-point date” means the day which falls half-way through the period mentioned in paragraph (3) or, where the number of days in that period is even, the first day of second half of that period. (3) The period referred to in paragraph (2) is the period beginning on the date, in the case of an aware under the 1970 Act, of the contravention and, in other cases, of the act of discrimination complained of, and ending on the day of calculation.”

[25]Under regulation 6(1), in interest on an award for injury to feelings is for the period “beginning on the date of the contravention or act of discrimination complained of and ending on the day of calculation”. Interest for all other compensation is “for the period beginning on the mid-point date and ending on the day of calculation”. Failure to comply with the ACAS Code

[26]Tribunals have the power, pursuant to section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) to increase or decrease the amount of an award to a claimant in certain circumstances. The section states: “(1) This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2. (2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that –(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that Code in relation to that matter, and

(c) that failure was unreasonable, the Employment Tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.”

[27]Schedule A2 includes the tribunal jurisdictions of unfair dismissal and discrimination under the Equality Act 2010. Conclusions Loss of earnings

[28]The Tribunal has found that the claimant could have obtained the same type of role, earning the same level of remuneration, within 26 weeks. The claimant and respondent agreed that the claimant’s relevant net weekly earnings was £755.54.

[29]The claimant did not receive any pay from her employment with the university during this period; there is therefore no deduction to be made from this award.

[30]The award for loss of earnings is therefore £19,644.04 (£755.54 x 26). Future loss of earnings

[31]The Tribunal has concluded that the claimant could have successfully found a new role at the same level of remuneration within 26 weeks, Having reached this conclusion, it follows that the claimant’s claim for future loss of earnings (i.e. after the date of this remedy hearing) fails.

[32]The Tribunal makes no award for future loss of earnings. Pension loss

[33]The claimant is entitled to an award to reflect her loss of pension rights. This award is for the same period of time as the award for loss of earnings. (This is because the Tribunal has concluded that the claimant could have successfully found a new role at the same level of remuneration, including pension benefit.)

[34]The Tribunal therefore makes an award for pension loss for the period of 26 weeks (six months). The total award is £9,180.90 (£1,530.15 x 6). IVF treatment

[35]The Tribunal has found it to be more likely than not that stress and anxiety caused by the respondent’s treatment was not the cause of the postponement of the claimant’s IVF cycle. The respondent is not therefore liable for the claimant’s expense incurred for conclusion of her IVF treatment and extended storage and the Tribunal makes no award for these claimed losses. Costs related to presence in the UK

[36]The Tribunal has found that the claimant decided to relocate to Zimbabwe because of her housing and family difficulties and that the treatment by the respondent was not a cause of these changes. It therefore follows that the respondent’s treatment was not the cause of the claimant’s expenses for her attendance in the UK between February and May 2024; instead, these expenses were the result of her decision to relocate to Zimbabwe.

[37]The Tribunal therefore makes no award for these costs. Pottery studio costs

[38]The Tribunal has found that the claimant could have returned to the type of work she was undertaking for the respondent within 26 weeks. The Tribunal has also found that the respondent’s treatment was not the cause of the claimant’s move into an alternative field of work. The respondent is therefore not liable for the claimant’s expenses associated with her establishment of her pottery studio: these are costs that the claimant incurred independently of the respondent’s treatment.

[39]The Tribunal therefore makes no award for these costs. Injury to feelings

[40]In determining the award for injury to feelings the Tribunal started by reminding itself that the instances of discrimination by the respondent occurred over an extended period of time; and that the discrimination related both to the failure to make reasonable adjustments and the claimant’s dismissal by the respondent.

[41]The Tribunal found that the respondent’s acts (and inaction) caused the claimant significant stress and anxiety, which exacerbated the stress the claimant was suffering as a result of other personal matters. The Tribunal accepts the claimant’s evidence that this has led to a loss of trust in the claimant of other similar employers.

[42]Taking into account the above, the Tribunal considers that an award in the middle band of the Vento bands is appropriate. The Tribunal does not consider that the respondent’s treatment falls in the upper band of the Vento bands: the failure to make reasonable adjustments, while extending over a long period of time, was not a deliberate omission by the respondent; and the dismissal by the respondent was a single instance.

[43]Therefore, the Tribunal awards the claimant £27,000 for injury to feelings. ACAS Uplift

[44]The Tribunal found in the Liability Judgment that the respondent failed to carry out an effective grievance procedure. This is because the respondent did not inform the claimant of the real reason for dismissal; and persisted with this false narrative throughout the grievance process.

[45]The Tribunal therefore concluded that the respondent failed to comply with paragraph 4 of the ACAS Code, in that it did not deal with the issues “fairly” and it did not “carry out any necessary investigations, to establish the facts of the case”.

[46]The Tribunal concluded that the respondent’s actions were a fundamental breach of the ACAS Code. It therefore decided that it would be just and equitable to increase the award to the claimant by 25%. The award for loss of earnings is increased by 25% to £24,555.05. The award for loss of pension is increased by 25% to £11,476.13. The award of injury to feelings of £27,000 is therefore increased by 25% to £33,750. Interest

[47]Interest on the award for past financial loss runs from the mid-point between the date of the act of discrimination and the date upon which the Tribunal calculates the amount of interest (“the Calculation Date”).

[48]The date of the first act of discrimination was 28 February 2021: this is the latest date by which the Tribunal found the first reasonable adjustment should have been put in place by the respondent. The Calculation Date is 17 May 2024. The period between the two dates is 1175. The interest rate is 8%. Interest on the award for loss of earnings award is therefore: (1175/2) x 0.08 x 1/365 x (£24,555.05 + £11,476.13) = 588 x 0.08 x 1/365 x £36,031.18 = £4,643.58

[49]Interest on the award for injury to feelings runs from the date of discrimination to the Calculation Date. The period between the two dates is 1175 days. The interest rate is 8%. Interest on the award for injury to feelings is therefore: 1175 x 0.08 x 1/365 x £33,750 = £8,691.78 Total award

Relevant Law

[50]The total award payable by the respondent to the claimant is: BASIC AWARD: £1,713; Loss of earnings: £24,555.05 Loss of pension: £11,476.13 Interest on past financial loss: £4,643.58 Loss of statutory rights: £500 COMPENSATION FOR FINANCIAL LOSS: £41.174.76 Injury to feelings: £33,750 Interest on injury to feelings: £8,691.78 INJURY TO FEELINGS: £42,441.78 Grossing up

[51]To avoid disadvantage to the claimant the Tribunal should ‘gross up’ any award it makes over £30,000. This is to ensure that after meeting any liability to HMRC, the claimant receives the amount due to her as compensation for the discrimination she suffered.

[52]The process of grossing up requires the employment tribunal to estimate the tax that the claimant will have to pay on receipt of the award and add it to the total award, thereby cancelling out the tax payable by the claimant. The relevant tax year for the calculation of grossing up is the year in which the award is paid to the claimant.

[53]The Tribunal is required to add up all payments and benefits within section 401 of the Income Tax (Earnings and Pensions) Act 2003 that are made to the claimant in connection with the same office or employment and complete its calculations on the total amount. The payment will be made within the tax year 2024/25 so the tax rates and bands for this financial year are the applicable ones. Calculation Tax free element £30,000 (Basic award) £1,713 Balance of tax-free element £28,287 Compensatory award + injury to feelings £83,616.54 (Balance of tax-free element) £28,287 Figure to be grossed-up £55,329.54 Award Band Net Tax Gross Personal allowance - £12,570

£0

£12,750

£12,570 Basic rate – 20% £37,699

£9,424.75

£47,123.75 (£12,571 - £50,270) Additional rate – 40% £5,060.54

£3,373.59

£8,434.23 (£50,270 - TOTAL £55,329.54

£12,798.34

£68,307.98

Award

[54]Therefore, the total compensatory award, after accounting for grossing up, is £96,594.98.

[55]The total award (basic and compensatory) is £98,307.98.