O Coban v Manes Partners Ltd and A Ozceylan: 3301233/2022

EMPLOYMENT TRIBUNALS

Case No 3301233/2022

Between

O CobanClaimant

Manes Partners Ltd and A OzceylanRespondent

Before

Employment Judge Freshwater, Ms Blunden and Ms Knapton

Mr Aggrey-Orleans (instructed by Counsel) for claimant

Date 16 July 2023

JUDGMENT

[1]The claimant’s claim for direct discrimination under section 13 of the Equality Act 2010 is well founded and succeeds against both the first and second respondent.

[2]The claimant’s claim for discrimination arising out of disability under section 15 of the Equality Act 2010 is well founded and succeeds against both the first and second respondent.

[3]The claimant’s claim for harassment under section 26 of the Equality Act 2010 is not well founded in respect of either respondent and is dismissed.

[4]Remedy will be determined at a hearing on 17 August 2023.

REASONS

Introduction

[1]The claimant is Mrs Ozgul Coban. The first respondent is Manes Partners Limited (an accountancy firm). The second respondent is Mr Alper Ozceylan (the director of the first respondent).

[2]The claimant was employed by the first respondent in an administration and management role. Her employment commenced on 1 September 2021.

[3]The claimant’s employment came to an end in November 2021. There is a dispute between the parties as to whether she resigned or was dismissed. Case Number: 3301233/2022 2 Claim and issues

[4]The claimant claimed discrimination on the grounds of disability contrary to sections 13, 15 and 26 of the Equality Act 2010 against both respondents. The issues agreed between the parties are set out below (as taken from the bundle.) Disability – S.6 Equality Act 2010

[5]Was the claimant at the material time disabled within the definition set out in Section 6, Equality Act 2010?

[6]Did the claimant have a physical impairment, namely Crohn’s Disease?

[7]If so, did the physical impairment have a substantial adverse effect on the claimant’s ability to carry out her normal day-to-day activities? If so, was that effect long term? In particular, when did it start?

[10]Had the impairment lasted for at least 12 months or was the impairment likely to last 12 months?

Compensation

[11]If the impairment ceased to have a substantial adverse effect on claimant’s ability to carry out normal day-to-day activities, is it to be treated as continuing to have that effect? In particular was that adverse effect likely to recur, and if so, when? Direct Disability Discrimination - S.13 of the Equality Act 2010

[12]What acts of less favourable treatment does the claimant allege had been carried out by the first and/or second respondent?(i) On 8/11/2021, the second respondent stating that he had a business to run and that if the claimant was going to be “on and off” they needed to chart a different path.

(ii) On 8/11/2021, the second respondent dismissing the claimant by stating “we can part ways at the end of the month”.

[13]In so far as the alleged acts of less favourable treatment are proven or admitted, in the absence of a non-discriminatory explanation from both respondents, could the Tribunal find they amount to less favourable treatment because of disability? The claimant relies on a hypothetical comparator.

[15]If so, has either respondent proven that it did not discriminate against the claimant? Discrimination arising from disability - S.15 of the Equality Act 2010

[16]What unfavourable treatment does the claimant allege was carried out by the respondents towards her? The claimant relies upon the following alleged act of unfavourable treatment:(i) Her dismissal on 8/11/2021. Case Number: 3301233/2022 3

(ii) On 8/11/2021, the second respondent stating that if the claimant was going to be “on and off”, they needed to talk about charting a different path.

(iii) On 8/11/2021, the second respondent mooting the possibility of part time employment.

[17]Was the unfavourable treatment done because of ‘something arising in consequence’ of the claimant’s disability, namely the claimant’s absence due to Infliximab treatment?

[18]Did the claimant’s absence arise in consequence of her disability, namely Crohn’s disease?

[19]If so, can the respondents show that such treatment was a proportionate means of achieving a legitimate aim? The respondents rely on the following legitimate aims:(i) To ensure the optimal and efficient deployment of its staffing resources; and/or

(ii) To ensure that staff were working the contractual hours that they were able to discharge.

[20]Did either or both of the respondents have knowledge of the claimant’s disability?

[21]If not, should the respondents have reasonably known that the claimant was disabled? If so, by what date? Disability harassment - S.26 of the Equality Act 2010

Findings

[22]Did either or both of the respondents engage in unwanted conduct?(i) On 14/09/2021, the second respondent disclosing to Oznur Demir that the claimant suffered from Crohn’s disease.

(ii) On 8/11/2021, the second respondent stating that he had a business to run and that if the claimant was going to be “on and off” they needed to chart a different path.

(iii) On 8/11/2021, the second respondent mooting the possibility of parttime employment.

(iv) On 8/11/2021, the second respondent dismissed the claimant by saying “we can part ways at the end of the month”.

(v) On 8/11/2021, the second respondent stating to the claimant that he expected her to “make up” the days she did not attend by working day and night at the weekend.

(vi) On 10/11/2021, the first and/or second respondent asking the claimant to request her payslip from her employer. (vii)On 10/11/2021, the respondent saying to the claimant:” I know you are not really good with e-mailing, obeying global data protection policies etc. Case Number: 3301233/2022 4 that is why I felt the necessary to inform you that employees should not know and share their payroll information, salary information to each other”.

[23]If so, were any of the alleged acts unwanted conduct?

[24]If so, did that conduct related to the claimant’s disability?

[25]If so, did the conduct have the purpose of violating the claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating and offensive environment for her?

[26]If so, did it have that effect? The Employment Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for conduct to have had that effect. Hearing and procedure

[27]The hearing took place remotely by CVP. It took four days from 24 to 27 April 2023.

Conclusions

[28]The tribunal was referred to: an electronic bundle that was 453 pages long; four witness statements; two translations of some text messages in the bundle, and a table setting out the agreement between the parties about some of the translated messages.

[29]The tribunal heard evidence from the claimant, Mrs Oznur Demir, the second respondent and Mrs Duygu Ozden.

The law

[30]Section 6 of the Equality Act 2010 states: “(1) 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. (2) A reference to a disabled person is a reference to a person who has a disability. (3) In relation to the protected characteristic of disability— (a)a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b)a reference to persons who share a protected characteristic is a reference to persons who have the same disability. (4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a)a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and Case Number: 3301233/2022 5 (b)a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability. (5)A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1). (6) Schedule 1 (disability: supplementary provision) has effect.”

[31]Section 13 of the Equality Act 2010 relates to direct discrimination, including discrimination on the grounds of disability. In so far as is relevant it says: “(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.”

[32]Section 15 of the Equality Act 2020 relates to discrimination arising out of disability. That says: “(1) A person(a) (A) discriminates against a disabled person

(b) (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

[33]In Secretary of State for Justice and anor v Dunn EAT 0234/16 the EAT set out the following four factors that must be made out in order for the claimant to succeed in claim under section 15 of the Equality Act 2010: there must be unfavourable treatment; there must be something that arises in consequence of the claimant’s disability; the unfavourable treatment must be because of (i.e. caused by) the something that arises in consequence of the disability; and the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.

[34]Section 26 of the Equality Act 2010 deals with harassment. “(1) A person(a) (A) harasses another

(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Case Number: 3301233/2022 6 (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case;

Findings of fact

[35]Overall, we found the claimant to be credible and consistent in her evidence to us. We found the second respondent to be evasive when questioned. For example, he seemed to be unable to focus on the questions being asked of him on occasion.

The law

[36]The claimant has Crohn’s disease. She was diagnosed in 2005 as a teenager. In 2011 she had surgery, and since then has been on medication to manage her condition (see page 287 in the bundle). She has been receiving regular Infliximab treatments for many years. Her evidence is that if she were to stop that treatment, within 2-3 months she would have “excruciating ulcers throughout [her] intestines throat and mouth. [She] would start to lose weight. [Her white blood cell count would drop significantly...”

[37]A letter from Dr Maxwell (see page 266 in the bundle) who has treated the claimant states that the claimant is “reasonably well in the moment”. We believe the claimant when she says that. We accept her evidence that she can be feeling reasonably well one day and extremely unwell the following day. At page 287 in the bundle of documents, a specialist nurse states that the condition can be very erratic.

[38]Aside from the need to attend regular medical appointments, and take medication, Crohn’s disease has an adverse effect on different aspects of the claimant’s life. At home, she finds it difficult to complete household tasks due to being in pain; she is forgetful about bills and shopping. Her husband deals with all household activities. The medication she takes for Crohn’s disease makes her drowsy, so cooking meals is difficult. She suffers from bladder and bowel incontinence. The claimant has to adapt her diet and routine because of her impairment. She needs time off work when she is unwell. This is a fraction of the evidence provided to us; but it is sufficient for us to find that the claimant’s impairment has a substantial adverse effect on her ability to carry out day-to-day activities.

[39]We find that both the first and second respondent did have knowledge of the fact that the claimant has Crohn’s disease. We found the claimant’s evidence to be credible and believe that she told the second respondent about it during her job interviews on 21 July 2021 and 4 August 2021. During the second interview, another employee was present. In our view, given the regularity of the claimant’s Infliximab treatment, it is very likely that she would have told her employer before she started work which supports her evidence to the tribunal.

[40]In September 2021 (before the 13th) the second respondent told Miss Oznur Demir that the claimant suffered from Crohn’s disease and that her illness Case Number: 3301233/2022 7 was like cancer. He was in Turkey at the time. The claimant and Miss Demir were consistent in their evidence on this point, and we believe them.

[41]We were provided with different translations of text messages between the claimant and second respondent. This is because the conversations were in Turkish. The parties could not agree if any of the translations were entirely accurate. We did not find that there was a material difference in impact of the translations. This is because we reached the same conclusion for whichever translation was used. Therefore, we have used the version in the bundle for this judgment. They are as follows: [08/11/2021, 15:13:17] Ozgul Coban: Hello Alper, how are you? How is Alya? I have treatment at the hospital tomorrow, I wanted to let you know if I can't come. NS [08/11/2021, 17:44:57] Alper Ozceylan: Get well soon Özgül [08/11/2021, 17:48:33] Alper Ozceylan: Ozgulcum, I feel sorry for your illness, I wish I could do something… Of course, the illness is not in your hands, but I have a business to run. [08/11/2021, 17:49:26] Alper Ozceylan: We've been together for 8 weeks, you left 8 days sick. Of course, this is not in your hands, but I also have to "rely" to someone who has continuity in the office. [08/11/2021, 17:51:29] Alper Ozceylan: Of course, I show endless understanding, but our work should not be interrupted. I put a lot of effort into this work, my friends are also making a lot of effort. If we're going to continue to be "on-and-off" Boyle, maybe let's talk about charting a different path. [08/11/2021, 18:09:00] Ozgul Coban: In short, I think you want me to leave the job [08/11/2021, 18:09:09] Ozgul Coban: As you wish [08/11/2021, 18:09:46] Alper Ozceylan: If I wanted you to quit your job, I would have said it directly. [08/11/2021, 18:10:19] Alper Ozceylan: I meant maybe we would consider being part-time or something. But if you say so, well, we can part ways at the end of this month. [08/11/2021, 18:10:22] Alper Ozceylan: this* [08/11/2021, 18:14:59] Ozgul Coban: Ok, if you want it that way, I'll see if there is another [08/11/2021, 18:15:18] Alper Ozceylan: Ok, whatever you want. [08/11/2021, 18:15:24] Ozgul Coban: If you need references at work, would you help me? Case Number: 3301233/2022 8 [08/11/2021, 18:16:56] Alper Ozceylan: Of course I will support you until the end [08/11/2021, 18:17:13] Alper Ozceylan: whatever is needed, always.. [08/11/2021, 18:18:06] Ozgul Coban: Thank you [08/11/2021, 18:23:58] Ozgul Coban: Let me clarify this, it's not 8 days, it's all written here [08/11/2021, 18:27:44] Alper Ozceylan: ok, not 8 but 7, or 6.5. This is a little detail, doesn't change the essence.

[42]The first respondent had no sickness absence policy or procedures to deal with attendance management. This was the evidence of the second respondent.

[43]The claimant was not provided with a written statement of the terms and conditions of her employment at any point. Conclusions Disability

[44]The claimant meets the definition of a disabled person under section 6 of the Equality Act 2010. Crohn’s disease is a physical impairment. It has a substantial and long-term adverse effect on the claimant’s ability to carry out day to day activities. Direct discrimination

[45]The second respondent did not dismiss the claimant. He made no effort to stop her from resigning, and he may well have been relieved that she did, but we are satisfied that he did not dismiss her by saying they could part ways at the end of the month. This was clearly said in response to the claimant’s message that it would be best if she found another job. We therefore do not find that this allegation of unfavourable treatment has been proven.

[46]However, we are satisfied that the allegation of unfavorable treatment relating to the message about charting a different path is proven. The claimant was faced with the prospect of an unidentified change to the way she would be expected to work. A tribunal could find that, in the absence of a nondiscriminatory explanation from the respondents, that it amounts to unfavourable treatment due to discrimination. The claimant relied on a hypothetical comparator.

[47]Neither respondent has proved that it did not discriminate against the claimant. The second respondent made very little effort to speak to the claimant about her condition, or to keep her when she said she wanted to leave. He made no effort to discuss with her if any measures could be put in place that might enable her to carry on working full time. Nobody else employed by the first respondent did so either. No investigation took place into the claimant’s condition and there was no formal discussion about the needs of the business. Case Number: 3301233/2022 9

[48]We find that the employer has treated that person less favourably than it treated or would treat others, and the difference in treatment is because of the claimant’s disability.

[49]We are therefore satisfied that both respondents directly discriminated against the claimant on the grounds of disability under section 13 of the Equality Act 2010. Discrimination arising out of disability

[50]As set out in paragraph 44 above, we do not find that the claimant was dismissed. We do not repeat those findings here.

[51]We are satisfied that the text messages on 8 November 2021 about charting a different path and mooting part time employment were unfavourable treatment by both respondents towards the claimant. They put the claimant at a disadvantage because she was faced with a change to her working arrangements, without any formal discussion or consideration of what allowances or adjustments could be made. Indeed, surprisingly, there was no policy or procedure in place about any of this. The claimant had never received a written contract of employment or any document setting out the terms and conditions under which she was employed. The unfavourable treatment occurred because of the claimant’s absence from work to have Infliximab treatment. Her absence was due to her disability.

[52]The respondents have not shown that this treatment was a proportionate means of achieving a legitimate aim. The legitimate aims put forward were(i) to ensure the optimal and efficient deployment of staffing resources and/or

(ii) to ensure that staff were working their contractual hours. These aims do relate to important issues that the respondents needed to address. However, there was no real attempt to discuss the impact of the claimant’s condition or effort to put in place measures which might enable her to work her hours and ensure optimal and efficient deployment of staff. For example, the claimant had requested a laptop to work from home. The second respondent, in crossexamination, said that he would not want her using a laptop in her probationary period or for her to use public wi-fi. This is despite no suggestion that the claimant would have used a laptop other than on a private wi-fi network. Less discriminatory measures could have been put in place in the first instance, for example an investigation into what was happening and serious consideration of enabling the claimant to work from home. The treatment was therefore not proportionate.

[53]Both respondents had knowledge of the claimant’s disability (see our findings in para 38 above).

[54]Discrimination arising out of disability is proven against both respondents. Disability harassment

[55]We are satisfied that each of the alleged incidents took place. However, in respect of the disclosure on 14 September 2019 to Miss Demir (that the claimant had Crohn’s disease), we do not find that this was part of the unwanted conduct towards the claimant. We find that it was perfectly Case Number: 3301233/2022 10 reasonable for Miss Demir to be told about the claimant’s illness. Miss Demir was her line manager and responsible for supervising the claimant.

[56]However, the other incidents amount to an unwanted course of conduct towards the claimant as a result of her disability.

[57]We do not find that the conduct had the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment towards her. In our view, the second respondent had a very poor understanding of the claimant’s illness. As we have highlighted, he made very little effort to investigate or think about how the claimant could be supported at work. We have also taken into account the unusual nature of the text message conversations between the claimant and the second respondent. It seems that they had a friendly relationship before things went wrong between them, and that the second respondent continued this informality when he should not have done so. He certainly could have been far more sensitive in how he dealt with the claimant, but we do not think he intended to harass her.

[58]We have considered whether the conduct had the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment towards her. Taking into account all the circumstances of the case, we do not think that the conduct did have that effect. As she said in her evidence, she is sensitive about the impact her condition has on her life. This is understandable. However, the claimant’s response in the messages at the time was measured. She did not express any upset. She asked for a reference. The messages read more of a falling out rather than anything stronger. At most they are unwise and insensitive, and we do not think that it is reasonable to say the conduct had the effect of harassment.

[59]Disability harassment is therefore not proven. _____________________________ Employment Judge Freshwater Date: 16 July 2023 Sent to the parties on: 21 July 2023 For the Tribunal Office Case No: 3301233/2022 EMPLOYMENT TRIBUNALS Claimant: Ozgul Coban First Respondent: Manes Partners Limited Second Respondent: Alper Ozceylan Heard at: CVP On: 17 August 2023 Before: Employment Judge Ms R Freshwater Tribunal member Mrs S Blunden Tribunal member Mrs K Knapton Representation Claimant: Mr Aggrey-Orleans (counsel) Respondent: Mrs Letts (Tribunal Representative)

[1]The respondents are ordered to pay the claimant the following compensatory awards:(i) Loss of earnings £10,034.29 net.

(ii) Injury to feelings £9,100.00 Interest of £1998.13.

[3]The total award to be paid by the respondents to the claimants after compensation and interest is £21,132.42.

[1]This is our judgment on remedy, following a liability hearing which took place on 24 - 27 April 2023. We upheld a complaint of direct disability discrimination and discrimination arising out of disability. Case No: 3301233/2022 Hearing and procedure

[2]This was a public, fully remote, hearing by way of CVP. The hearing took one day.

[3]The tribunal heard submissions from both representatives, and oral evidence from Mrs Coban and Mr Ozceylan. Judgment was reserved. Preliminary issues

[5]At the start of the hearing, the respondent’s represented noted that there were no witness statements in the bundle prepared for the remedy hearing. It was noted that the tribunal had directed that the claimant should submit any documents relied upon for remedy by 8 August 2023 and that these would have been included in the bundle. The claimant’s representative submitted that the witness statement submitted by the claimant for the liability hearing should stand in this hearing. In addition, the claimant referred to various documents from the original bundle.

[6]The tribunal confirmed that both parties had the original bundle, and allowed time for it to be obtained for the claimant. Time was also allowed for the second respondent to discuss the bundle with his representative.

[7]The respondent did not, ultimately, seek an adjournment of the proceedings or seek to persuade the tribunal that the previously submitted evidence ought not to be used at the hearing.

[8]The tribunal considered that it was fair to continue. This was on the basis that no new evidence was being introduced into the proceedings. It would have been ideal for all the material to be in one bundle, but no prejudice was identified by either party. There was sufficient time during the hearing for both parties to be reminded of the content of the earlier bundle. It would not be proportionate to delay the case any further. In any event, it is permissible for the tribunal to hear oral evidence in circumstances where a witness statement has not been served.

[9]The respondent also noted that part of the remedy claim related to an uplift because the claimant said that the respondent had failed to investigate and provide an outcome to a grievance that the claimant had submitted. The respondent did not accept that a grievance had ever been made by the claimant. No submissions or evidence had been received on this point during the liability hearing. The claimant’s representative submitted that this was an issue for the remedy hearing, and pointed to the agreed list of issues which set this point out as a matter of remedy.

[10]The tribunal decided to deal with the point during evidence at the remedy hearing when any necessary findings of fact could be dealt with. Oral evidence could be taken, despite the fact that no witness statement covered the point. The issue raised was not a new one, and it had been agreed between the parties previously that it would be an issue of remedy. The law

Compensation

[11]Any award of compensation will be assessed under the same principles as apply to claims in the County Court (see s124(6) and s119(2) of the Equality Act 2010). Case No: 3301233/2022 The central aim is to put the claimant in the position, so far as is reasonable, that he or she would have been had the unlawful conduct not occurred (Ministry of Defence v Wheeler

[1998] IRLR 23

and Chagger v Abbey National plc

[2010] IRLR 47

[12]A claimant is expected to take reasonable steps to mitigate the losses they suffered as a result of the unlawful conduct. The burden is on the respondent to prove that there had been a failure to mitigate such losses (see Fyfe v Scientific Furnishing Ltd

[1989] IRLR 331

[13]The respondent must show not just that the claimant failed to take a reasonable step but that this failure was unreasonable (see Wright v Silverline Car Caledonia Ltd

UKEATS/0008/16

[14]A tribunal should therefore consider:(1) What steps the claimant should have taken to mitigate his losses

(2) Whether it was unreasonable for the claimant to have failed to take any such steps

(3) If so, the date from which an alternative income would have been obtained Remedy for injury to feelings.

[15]The focus is on the actual injury suffered by the claimant and not the gravity of the acts of the respondent (see Komeng v Creative Support Ltd

UKEAT/0275/18/JOJ

)

[16]The general principles that apply to assessing an appropriate injury to feelings award have been set out by the EAT in Prison Service v Johnson

[1997] IRLR 162

, para 27: 16.1. Awards are compensatory in nature and should be just to both parties. They should compensate fully without being punitive. 16.2. Awards should not be too low as that would diminish respect for the policy of anti-discrimination legislation. On the other hand, awards should be restrained. 16.3. Awards should bear some broad general similarity to the range of awards in personal injury cases. 16.4. Tribunals should take into account the value in everyday life of the sum they have in mind, by reference to purchasing power or earnings. 16.5. Tribunals should bear in mind the need for the public to respect the level of awards made

[17]In Vento v Chief Constable of West Yorkshire Police (No 2)

[2003] IRLR 102

, the Court of Appeal identified three broad categories or bands (i.e. lower, middle and upper) into which an award for injury to feelings shall fall, save in exceptional cases. The ranges of award for each of these bands is uprated each year by means of an Addendum to Presidential Guidance which was issued on 5 September 2017. The relevant guidance for present purposes is the Fourth Addendum to Presidential Guidance (applicable to claims presented on/after 6 April 2018) which sets out the following ranges of award for the three Vento bands: a lower band of £900 to £9,100 (less serious cases); a middle band of £9,100 to £27,400 (cases that do not merit an award in the upper band); and an upper band of £27,400 to £45,600 (the most serious cases), with the most Case No: 3301233/2022 exceptional cases capable of exceeding £45,600. Aggravated damages

[18]Aggravated damages may be awarded where the discriminator has acted in a high handed, malicious or insulting manner in relation to the discriminatory act itself or the way it was dealt with (see Singh v University Hospital NHS Trust

EAT/1409/01

). In Commissioner of Police of the Metropolis v Shaw

[2012] IRLR 291

the following three categories were identified:(i) the manner in which the wrong was committed,

(ii) the motive of the discriminator, and

(iii) the subsequent conduct of the employer including the way that a grievance was investigated or proceedings conducted. ACAS uplift

[19]Under section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 a tribunal has the power to increase by up to 25% any compensatory award it makes in relation to relevant proceedings where it finds that an employer has failed unreasonably to comply with a relevant ACAS Code of Practice (which in this case is said by the claimant to be the ACAS Code of Practice on Disciplinary and Grievance Procedures) and it considers it just and equitable to do so. Interest

[20]Interest for injury to feelings awards is calculated from the date of the act of discrimination complained of until the date on which the tribunal calculates the compensation (see Reg 6(1)(a) IT(IADC) Regs 1996).

[21]Injury for other awards is calculated from the mid-point of the date of the act of discrimination complained of and the date the tribunal calculates the award (Reg 6(1)(b) IT(IADC) Regs 1996). The mid-point date is the date half way through the period between the date of the discrimination complained of and the date the tribunal calculates the award (Reg 4 IT(IADC) Regs 1996).

Findings

[22]The claimant’s condition was exacerbated as a result of the discrimination we have found occurred. She said that it took her one to two months after her employment came to an end to feel well enough to look for a new job. We found her evidence to be credible. She did not attempt to exaggerate what had happened, and was very measured in her account. We also accept that she was waiting to receive her P45 from the first respondent, which never arrived. This would, in our experience, have made it very difficult to obtain employment. We therefore do not think that it was unreasonable for her to have found a job within 6-7 months. We are satisfied that Mrs Coban was looking for work through LinkedIn and agencies. She commenced her new employment on 1 June 2022.

[23]The claimant did not submit a grievance. She submitted a letter before claim dated 2 December 2021. This is apparent from the fact that the document relied upon by the claimant to amount to a grievance was sent by her solicitor to the respondent. That document clearly states that the solicitors: “act for Ozgul Coban (‘the Claimant’) in respect to her claim to the employment tribunal against Manes Partners Limited (‘the Respondent’) and Alper Ozceylan for disability discrimination.” The letter goes on to say: “Please treat this as a letter of claim prior to the issue of legal proceedings at the employment tribunal.” There is no Case No: 3301233/2022 mention within it that the intention was to submit a grievance. We do not find that the letter amounts to a grievance.

[24]The claimant was not provided with any written particulars of employment.

[25]Whilst clearly unpleasant for the claimant, the discriminatory acts done in this case were not done in an exceptionally upsetting way.

[26]There was no discriminatory conduct that was evidently based on prejudice or animosity or which is spiteful or vindictive or intended to wound. Instead, the conduct in this case stemmed from a lack of care and attempt to understand the claimant’s condition.

[27]The trial was not conducted in an unnecessarily oppressive manner. As we have said before, Mr Ozceylan was evasive in his answers but we do not think that this amounts to oppressive behaviour or a failure to treat the complaint seriously. He was entitled to defend the claim, and not all of the claimant’s complaints were upheld by the tribunal.

Conclusions

[28]The claimant should be awarded compensation for the loss of earnings between 9 November 2021 until 31 May 2022. Her pay during that time would have been £49.43 per day net. The period in question was 203 days. Therefore, the total amount is £10,034.29 net.

[29]The detriment suffered falls within the lower band of Vento, at the top end of that band, in the Fourth Addendum (which is applicable in this case). The award for injury to feelings is therefore £9100. The reason for this finding is that the evidence provided to us was that claimant was affected for a relatively short period of time. She cried for two days and felt low for about a month. She lost confidence in herself, but when she was well enough (after 1 – 2 months) she felt able to look for work again. The claimant felt undermined by what had happened and was embarrassed to tell people what had happened.

[30]No ACAS uplift is appropriate in this case, because we have found that the claimant did not submit a grievance.

[31]No reason was put forward for the failure to provide written particulars of employment. The maximum award of 4 weeks salary is appropriate in this case. The relevant weekly salary is £396 per week. Therefore the total amount is £1,584. No award is made for aggravated damages.

[33]The claimant is entitled to interest for the award relating to loss of earnings. The first act of discrimination is 8 November 2021 and the date of the remedy hearing is 17 August 2023. This is 647 days. The midpoint is equivalent to 323 days. £10,034.29 x 8% / 365 = £2.20 per day. £2.20 x 323 days = £710.60

[34]The claimant is entitled to interest for the award relating to injury to feelings. The first act of discrimination is 8 November 2021 and the date of the remedy hearing is 17 August 2023. This is 647 days. £9,100 x 8% / 365 = £1.99 per day. £1.99 x 647 days = £1,287.53. __________________________________________ Employment Judge Freshwater Case No: 3301233/2022 _________________________________________ Date 19 October 2023 RESERVED JUDGMENT & REASONS SENT TO THE PARTIES ON 20 October 2023 ........................................................................................................... ........................................................................................................... FOR EMPLOYMENT TRIBUNALS Case Number: 3301233/2022 EMPLOYMENT TRIBUNALS Claimant: Ozgul Coban First Respondent: Manes Partners Limited Second Respondent: Alper Ozceylan CERTIFICATE OF CORRECTION Under Rule 67, the judgment sent to the parties on 20 October 2023, is corrected as set out in block type at paragraphs 2, 3, 4 and 35 of the corrected judgment. Approved by: Employment Judge Freshwater 24 June 2025 SENT TO THE PARTIES ON 26/06/2025 FOR THE TRIBUNAL OFFICE Important note to the Claimant(s) and Respondent(s): Any dates for asking for written reasons, applying for reconsideration or appealing against the judgment are not changed by this certificate of correction and corrected judgment. These time limits still run from the date the original judgment or reasons were sent, as explained in the letter that sent the original judgment. Case No: 3301233/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 EMPLOYMENT TRIBUNALS Claimant: Ozgul Coban First Respondent: Manes Partners Limited Second Respondent: Alper Ozceylan Heard at: CVP On: 17 August 2023 Before: Employment Judge Ms R Freshwater Tribunal member Mrs S Blunden Tribunal member Mrs K Knapton Representation Claimant: Mr Aggrey-Orleans (counsel) Respondent: Mrs Letts (Tribunal Representative) CORRECTED JUDGMENT ON REMEDY 1. The respondents are ordered to pay the claimant the following compensatory awards: (i)Loss of earnings £10,034.29 net. (ii)Injury to feelings £9,100.00 2. THE RESPONDENTS ARE ORDERED TO PAY THE CLAIMANT interest of £1998.13. 3. THE RESPONDENTS ARE ORDERED TO PAY THE CLAIMANT THE SUM OF £1584.00 FOR FAILURE TO PROVIDE WRITTEN PARTICULARS OF EMPLOYMENT. 4. THE TOTAL AWARD TO BE PAID TO THE CLAIMANT BY THE RESPONDENTS IS £22,716.42. CORRECTED REASONS Case No: 3301233/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 Introduction

REMEDY

[2]This was a public, fully remote, hearing by way of CVP. The hearing took one day.

[3]The tribunal heard submissions from both representatives, and oral evidence from Mrs Coban and Mr Ozceylan. Judgment was reserved. Preliminary issues

[7]The respondent did not, ultimately, seek an adjournment of the proceedings or seek to persuade the tribunal that the previously submitted evidence ought not to be used at the hearing.

[11]Any award of compensation will be assessed under the same principles as apply to claims in the County Court (see s124(6) and s119(2) of the Equality Act 2010). The central aim is to put the claimant in the position, so far as is reasonable, that he or she would have been had the unlawful conduct not occurred (Ministry of Defence v Wheeler

[1998] IRLR 23

and Chagger v Abbey National plc

[2010] IRLR 47

[1989] IRLR 331

[13]The respondent must show not just that the claimant failed to take a reasonable step but that this failure was unreasonable (see Wright v Silverline Car Caledonia Ltd

UKEATS/0008/16

[14]A tribunal should therefore consider:(1) What steps the claimant should have taken to mitigate his losses

(2) Whether it was unreasonable for the claimant to have failed to take any such steps

(3) If so, the date from which an alternative income would have been obtained Remedy for injury to feelings.

[15]The focus is on the actual injury suffered by the claimant and not the gravity of the acts of the respondent (see Komeng v Creative Support Ltd

UKEAT/0275/18/JOJ

)

[16]The general principles that apply to assessing an appropriate injury to feelings award have been set out by the EAT in Prison Service v Johnson

[1997] IRLR 162

[17]In Vento v Chief Constable of West Yorkshire Police (No 2)

[2003] IRLR 102

, the Court of Appeal identified three broad categories or bands (i.e. lower, middle and upper) into which an award for injury to feelings shall fall, save in exceptional Case No: 3301233/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 cases. The ranges of award for each of these bands is uprated each year by means of an Addendum to Presidential Guidance which was issued on 5 September 2017. The relevant guidance for present purposes is the Fourth Addendum to Presidential Guidance (applicable to claims presented on/after 6 April 2018) which sets out the following ranges of award for the three Vento bands: a lower band of £900 to £9,100 (less serious cases); a middle band of £9,100 to £27,400 (cases that do not merit an award in the upper band); and an upper band of £27,400 to £45,600 (the most serious cases), with the most exceptional cases capable of exceeding £45,600. Aggravated damages

EAT/1409/01

). In Commissioner of Police of the Metropolis v Shaw

[2012] IRLR 291

the following three categories were identified:(i) the manner in which the wrong was committed,

(ii) the motive of the discriminator, and

(iii) the subsequent conduct of the employer including the way that a grievance was investigated or proceedings conducted. ACAS uplift

[23]The claimant did not submit a grievance. She submitted a letter before claim dated 2 December 2021. This is apparent from the fact that the document relied upon by the claimant to amount to a grievance was sent by her solicitor to the respondent. That document clearly states that the solicitors: “act for Ozgul Coban (‘the Claimant’) in respect to her claim to the employment tribunal against Manes Partners Limited (‘the Respondent’) and Alper Ozceylan for disability discrimination.” The letter goes on to say: “Please treat this as a letter of claim prior to the issue of legal proceedings at the employment tribunal.” There is no mention within it that the intention was to submit a grievance. We do not find that the letter amounts to a grievance.

[24]The claimant was not provided with any written particulars of employment.

[25]Whilst clearly unpleasant for the claimant, the discriminatory acts done in this case were not done in an exceptionally upsetting way.

Conclusions

[30]No ACAS uplift is appropriate in this case, because we have found that the claimant did not submit a grievance.

[35]THE CLAIMANT IS ENTITLED TO AN AWARD OF £1584.00 FOR THE FAILURE TO PROVIDE HER WITH WRITTEN PARTICULARS OF HER EMPLOYMENT. Approve By: Employment Judge Freshwater Date 9 October 2023 CORRECTED ON 24 JUNE 2025 RESERVED JUDGMENT & REASONS SENT TO THE PARTIES ON 20/10/2023 FOR EMPLOYMENT TRIBUNALS Case Number: 3301233/2022 EMPLOYMENT TRIBUNALS Claimant: Ozgul Coban Respondent: 1. Manes Partners Limited 2. Alper Ozceylan Heard at: in chambers On: 4 July 2025 Before: Employment Judge Freshwater Representation Claimant: Written submissions only Respondent: Written submissions only

[36]However, the basis of a costs order and preparation time order is the same and so I am prepared to allow the amendment to the application and consider whether or not the claimant’s conduct was unreasonable.

[37]In my view, the claimant’s conduct is not such that it can be described as unreasonable. The costs application, although I have dismissed it, cannot be described as having no reasonable prospect of success. There are respectable arguments for both sides to put forward an application for costs in the context of a case which was finely balanced. This is reflected in the decision on liability because not all of the claim was found to be wellfounded. The claimant’s costs application changed between the remedy hearing and the promulgation of the remedy judgement, but the application was still made within time and there was no requirement to apply to amend the application.

[38]In respect of the settlement discussions, both parties had – at points – set out unrealistic settlement offers. However, this is not uncommon in the course of litigation and, in this case, appears to be reflective of the view that each party took about the merits of their respective case.

[39]Looking at the settlement correspondence in the round, it is not such that either party has been evidenced to be unreasonable. Both parties have been robust in how they have dealt with the case.

[40]The respondents’ application for a costs order is dismissed on the basis that the claimant’s conduct did not fall under rule 72(a). Approved by: Employment Judge Freshwater 4 July 2025

Introduction

The law

[1]The claimant’s application is based upon the submission that I did not take into account documents that were sent to the tribunal by email and attached to the claimant’s application for costs. It was said that I had not referenced the correspondence and attachments. They were sent through again in respect of the claimant’s application for reconsideration.

[2]Attached to both the application for costs and application for reconsideration were the following documents:a. Letter dated 16 November 2023 applying for costs;

b. Correspondence between the parties, including attendance notes, dated between December 2021 and April 2023;

c. Witness statement of Oznur Demir dated 11 April 2023;

d. Reserved judgment of the tribunal dated 16 July 2023;

e. ELS solicitors breakdown of costs;

f. Counsel’s invoices.

[3]The documents were all read and considered by my in reaching my judgment on the claimant’s application for costs. This can be seen in my judgment.

[4]At paragraph 4 of my judgment, I reference the letter dated 16 November 2023. Paragraph 12 of my judgments sets out the basis of the claimant’s application, which is directly taken from the letter dated 16 November 2023. Paragraph 29 of my judgment references the correspondence between the parties that was attached to the email in respect of settlement discussions. I do not find it was necessary for me to state explicitly that this was taken from the email attachments.

[5]I took into account the findings of the tribunal, including those based on the evidence of Oznur Demir. I explained my view on the stage at which the respondent accepted that the claimant was a disabled person for liability purposes in the context of the application for costs at paragraph 31 of my judgment on costs. It was not necessary for me to specifically mention the witness statement of Oznur Demir.

[6]I found that the respondents’ conduct did not fall under rule 72(a) and therefore the tribunal had no power to make a costs order. It was not necessary for me to reference the solicitor’s breakdown of costs or counsel’s invoices in circumstances in which the tribunal had no power to make a costs order. Date: 16 October 2025 Approved by